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Rising Above the Gathering Storm: Energizing and Employing America for a Brighter Economic Future
Carry out the process across as well as within agencies, and include input from the S&T community.
Principle 2: Avoid the creation of categories of SBU information and consolidate existing ones.
Undertake a systematic review to determine the number and provisions of all existing types of SBU in the federal government.
Using that baseline, require a further review and justification for the maintenance of any category. Tie remaining categories to an explicit statutory or regulatory framework that includes procedures to request access to information and appeal decisions.
“DEEMED EXPORTS”: A SPECIAL CURRENT CASE
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 license9 [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.
In 2000, Congress mandated annual reports by agency offices of inspector general (IG) on the transfer of militarily sensitive technology to countries and entities of concern; the 2004 reports focused on deemed exports. The individual agency IG reports and a joint interagency report concluded that enforcement of deemed-export regulations had been ineffective; most of the agency reports recommended particular regulatory remedies.10
“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.”
Reports were produced by the DOC, DOD, the Department of Energy (DOE), the Department of State, the Department of Homeland Security, and the Central Intelligence Agency. Only the interagency report and the reports from DOC, DOD, and DOE are publicly available.