The Financial Times says "US to reject more limits on foreign researchers". And the story certainly leaves the reader with the impression that any thought of a tightening on deemed exports is out of the picture. Good news for American companies and universities, right? Yes, but maybe not as positive as the FT would lead you to believe.
Apparently they reached this conclusion based solely on an op-ed by BIS Under Secretary David McCormick which also just happens to appear in today's FT. Here's the graf from McCormick's piece on which the British paper pegs its news story:
The commerce department will soon publish a policy basing controls on access to sensitive technology on a foreign national's most recent country of citizenship or permanent residency, not country of birth. We believe that by acquiring permanent residency or citizenship in another country, foreign nationals have demonstrated strong ties to their adopted country and are subject to rigorous screening processes by our closest allies. The U.S. will continue to deny the transfer of sensitive technology to foreign nationals who could pose risks to national security.
So McCormick says that birth certificates will not become export control documents. That's welcome news to just about everyone except can't-see-the-forest-for-the-trees national security types.
But hey, wait a minute. Let's not forget about the other provisions of the proposed deemed export rule which expand the definition of "use" and change two published interpretations in ways that will impose export license requirements on firms and universities where they may not have existed before. The proposed regulation actually does a pretty good job of explaining how this might work:
Question D(1), which falls under the "research, correspondence, and informal scientific exchanges'' category, discusses whether a license would be required for a foreign graduate student to "work'' in a laboratory. The answer provided in the supplement states, "not if the research on which the foreign student is working qualifies as 'fundamental research''' However, because allowing scientists, engineers, or students to work in a laboratory may necessitate their "use'' of equipment, the OIG stated that this answer may lead a potential license applicant to assume that "use'' of equipment is covered under the fundamental research exemption.
In its comments on the OIG report, BIS agreed that the answer to question D(1) requires clarification. BIS proposes to revise the answer for D(1) to qualify the statement that no license is required, by stating that, whereas no license is required for the transfer of technology to conduct fundamental research,'' a license may be required if, in conducting fundamental research, the foreign graduate student needs access to technology to "use'' equipment if the export of the equipment to the student would require a license under the EAR.
That's a big change in how most people understand the fundamental research exemption today and there was nothing in McCormick's op-ed to indicate that BIS is reconsidering that piece of the proposal.
Notably, this is not the first example of sloppy reporting on the deemed export debate, but I'm guessing the FT wouldn't appreciate being compared to a free weekly paper. They could have left the McCormick opinion piece to stand on its own, but it looks like they couldn't resist overstating the importance a self-referential story.
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