. "7 What Actions Should America Take in Science and Engineering Higher Education to Remain Prosperous in the 21st Century?." Rising Above the Gathering Storm: Energizing and Employing America for a Brighter Economic Future. Washington, DC: The National Academies Press, 2007.
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Rising Above the Gathering Storm: Energizing and Employing America for a Brighter Economic Future
ACTION C-7: REFORM THE CURRENT SYSTEM OF “DEEMED EXPORTS”20
The current system of “deemed export” should be reformed. The newsystem should provide international students and researchers engaged infundamental research in the United States with access to information andresearch equipment in US industrial, academic, and national laboratoriescomparable with the access provided to US citizens and permanent residents in a similar status. It would, of course, exclude information and facilities restricted under national security regulations. In addition, the effect ofdeemed-exports regulations on the education and fundamental researchwork of international students and scholars should be limited by removingfrom the deemed-exports technology list all technology items (informationand equipment) that are available for purchase on the overseas open marketfrom foreign or US companies or that have manuals that are available in thepublic domain, in libraries, over the Internet, or from manufacturers.
The controls governed by the Export Administration Act and its implementing regulations extend to the transfer of “technology.” Technology is considered “specific information necessary for the ‘development,’ ‘production,’ or ‘use’ of a product,” and providing such information to a foreign national within the United States may be considered a “deemed export” whose transfer requires an export license21 (italics added). The primary responsibility for administering deemed exports lies with the Department of Commerce (DOC), but other agencies may have regulations to address the issue. Deemed exports are currently the subject of significant controversy.
The controls governed by the Export Administration Act and its implementing regulations extend to the transfer of technology. Technology includes “specific information necessary for the ‘development,’ ‘production,’ or ‘use’ of a product” [emphasis added]. Providing information that is subject to export controls—for example, about some kinds of computer hardware—to a foreign national within the United States may be “deemed” an export, and that transfer requires an export license. The primary responsibility for administering controls on deemed exports lies with the Department of Commerce, but other agencies have regulatory authority as well.
“Generally, technologies subject to the Export Administration Regulations (EAR) are those which are in the United States or of US origin, in whole or in part. Most are proprietary. Technologies which tend to require licensing for transfer to foreign nationals are also dual-use (i.e., have both civil and military applications) and are subject to one or more control regimes, such as National Security, Nuclear Proliferation, Missile Technology, or Chemical and Biological Warfare.” (“Deemed Exports” Questions and Answers, Bureau of Industry and Security, Department of Commerce.) The International Traffic in Arms Regulations (ITAR), administered by the Department of State, control the export of technology, including technical information, related to items on the US Munitions List. Unlike the EAR, however, “publicly available scientific and technical information and academic exchanges and information presented at scientific meetings are not treated as controlled technical data.”