Deemed Exports Re-Visited

You may be an exporter even if you don’t ship tangible items. As we start 2016 deemed export rules are worth re-visiting.

Engineering firms, software companies, researchers, manufacturers, and universities need to be aware of the “deemed export” rules. They may be engaged in export transactions without even knowing it. Here is some info from the BIS website.

For help with exports contact mitch@

Deemed Export FAQs

  • What is the “deemed export” rule?

    An export of technology or source code (except encryption source code) is “deemed” to take place when it is released to a foreign national within the United States. See §734.2(b)(2)(ii) of the Export Administration Regulations (EAR). For brevity, these questions and answers refer only to “technology” but apply equally to source code.

  • What is a “release” of technology?

    Technology is “released” for export when it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. See §734.2(b)(3) of the Export Administration Regulations (EAR).

  • What is “technology”?

    Per Part 772 of the Export Administration Regulations (EAR), “technology” is specific information necessary for the “development,” “production,” or “use” of a product. The General Technology Note states that the “export of technology” is controlled according to the provisions of each Category.” It further states that “technology required for the development, production, or use of a controlled product remains controlled even when applicable to a product controlled at a lower level.” Please note that the terms “required,” “development,” “production,” “use,” and “technology” are all defined in Part 772 of the EAR. Controlled technology is that which is listed on the Commerce Control List.

  • When do I need to apply for an export license for technology under the “deemed export” rule?

    Assuming that a license is required because the technology does not qualify for treatment under EAR99 and no license exception is available, U.S. entities must apply for an export license under the “deemed export” rule when both of the following conditions are met: (1) they intend to transfer controlled technologies to foreign nationals in the United States; and (2) transfer of the same technology to the foreign national’s home country would require an export license.

FOB Really?…There’s much more to Incoterms…

Incoterms are an important component of international trade. A good commercial invoice includes clearly specified Incoterms. Take the time to review your international documents for accuracy. Here is a primer from the archives on Incoterms. For help contact mitch@

Incoterms are rules used to facilitate global trade. Incoterms were created and are administered by the International Chamber of Commerce and are updated every 10 years. Incoterms 2010 published by ICC Services Publications, Paris FR is a very good reference. Some of the important points covered in the book are:

  • Incoterms must be in the contract of sale to apply
  • > 120 countries have endorsed Incoterms 2010
  • Now 11 rules in 2 groups
  • 2 new rules deal with geographic place
  • Incoterms is not a law…older versions can be used as long as all parties agree
  • Incoterms replaces Uniform Commercial Code (UCC) in domestic commerce
  • for reference
  • Incoterms cover;
    • Who does what
    • Who pays for what
    • When risk of goods passes from seller to buyer
    • Who is responsible for insurance, export clearance, import clearance, and other costs pertaining to delivery of goods
  • Incoterms do not cover;
    • Ownership or title to goods
    • Payment terms
    • Detailed requirements
    • Complete contract of sale

Incoterms 2010 includes several rules changes:

  • Now referred to as rules not terms
  • Remove DAF DES DDU DEQ
  • New Rules  DAT DAP
  • 2 Groups…Any Mode and Ocean/Inland Waterway Only
  • Ocean or Inland Waterway Only…FAS FOB CFR CIF

Attached chart is a quick guide to Incoterms 2010

Incoterms 2010 Quick Reference Chart 120610