Deemed Exports at RPI

The Bureau of Industry and Security (BIS) and the Directorate of Defense Trade Controls (DDTC) administer the two most common export control frameworks in the United States - the Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR).  Both frameworks govern the transfer of various items internationally. While these lists regulate the physical shipment of items abroad, they also have implications for the transfer of software and technology even when transferred inside the United States to a Non-U.S. persons, which could be ‘deemed’ an export to those persons home countries. 

What is a Deemed Export?

A Deemed Export is the release of technology or software to a foreign national within the United States. The EAR defines a deemed export as a release of technology or source code subject to the EAR to a foreign national (such a release is “deemed” to be an export to the home country of the foreign national) and the ITAR includes “Releasing or otherwise transferring technical data to a foreign person in the United States” within its definition of Export.  Foreign nationals in the US often include staff, faculty, visitors, graduate students, undergraduate students, and training fellows.  Releasing technology or software to a foreign national on campus is treated the same as exporting that same information to the foreign national’s home country and may require an export license. Deemed exports may occur through instances such as, but not limited to:

• Sharing source code
• Allowing access to a user manual for a controlled item
• Demonstrations / Training
• Oral meetings
• Institutional visits
• Access to technology that meets the definition of “use” (see below)

 What is the definition of “Use”?

“Use” is a specifically defined term in the EAR. Routine use of export controlled equipment typically does not trigger an export.  However, if use should rise to the EAR defined threshold, which is typically all six (6) components of “use,” deemed exports may occur and require a license. Note that some ECCNs may specify one or more of the six elements of “use” in the control text, in which case only those components of ‘use’ specified are classified under that particular ECCN.  The six components are: 

• Operation (utilize),
• Installation (including on-site installation),
• Maintenance (check),
• Repair (fix or mend),
• Overhaul (renovate or remake), AND
• Refurbishing (restore or upgrade). 

License Requirements

Rensselaer may be required to obtain a deemed export license in the instance that the technology or software meets any of the following circumstances:

• not publicly available, or is related to defense articles, or
• being transferred to a foreign national within the US, and would require an export license to be transferred to the home country of a foreign national

BIS Frequently Asked Questions

Question: Does a foreign national require a deemed export license if he/she is working with a controlled pathogen, toxin or genetic element of a controlled pathogen?  

(Remember: Access to a controlled pathogen or to controlled equipment associated with the work on a pathogen is not a deemed export. A deemed export is the release to a foreign national in the United States of “technology” or “source code” “required” for the “development,” “production,” or “use” of the controlled pathogen or controlled equipment.) 

Answer: No, if technology arises during or results from fundamental research, or if the technology to be shared does not meet the definition of development or production as noted above even if the research is not fundamental. Yes, if the technology being shared meets the definitions and it is during fundamental research.

Question: Does a foreign national require a deemed export license if he/she is using controlled equipment in a laboratory?

 Answer: No, the information provided did not indicate that the individual was overhauling or refurbishing equipment – they were only operating the equipment and it does not meet the definition of “use.”