Deemed Exports: A US EAR Guide

Deemed exports are tricky. If you work with foreign nationals, US tech, or controlled items—read this! Includes video explainer

hen it comes to Export Control, one of the more confusing yet critical areas is the concept of "Deemed Exports" under the U.S. Export Administration Regulations (EAR). These rules don't just impact shipments across borders—they govern knowledge, access, and even conversations. As an Export Control Consultant, I've seen many companies unknowingly fall foul of these rules. So, whether you're an EU, UK, or USA-based Trade Compliance professional, this guide is for you.

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Key Questions Covered in This Blog

• What is a "deemed export" under the U.S. EAR?

• Who is affected by deemed export rules?

• When and how does the U.S. EAR apply outside the USA?

• What steps can companies take to ensure compliance with deemed export controls?

• What are the licensing requirements and penalties?

  
  

"Compliance doesn't stop at the border—especially when your conversations can count as an export." Arne Mielken, Managing Director, Customs Manager Ltd

Abbreviations Used In This Blog

• EAR – Export Administration Regulations

• BIS – Bureau of Industry and Security

• USC – United States Code

• TCL – Technology Control Plan

• ECCN – Export Control Classification Number

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Watch the Video

Deemed exports are tricky. If you work with foreign nationals, US tech, or controlled items—watch this video

What is a "deemed export" under the U.S. EAR?

Imagine you're at your office in the UK, and a non-U.S. colleague asks you about a U.S.-origin controlled technology. You explain it—and boom, you've just made a "deemed export." In plain terms, a deemed export is the transfer or release of controlled U.S. technology or source code to a foreign national within the United States. It doesn’t have to cross a border. Sharing it—even verbally—can trigger Export Control obligations.

The U.S. EAR, administered by the Bureau of Industry and Security (BIS), treats that knowledge transfer as if you physically exported the item to the individual’s home country. Sounds wild, right? But that’s U.S. law—and it’s enforced strictly.

Who is affected by deemed export rules?

These rules primarily affect universities, R&D firms, multinationals, and tech companies employing foreign nationals. If your team includes non-U.S. persons working on U.S.-origin technology, you need to determine whether the technology is controlled under the EAR. If it is, you might need a license before sharing it.

Even EU or UK companies with subsidiaries or branches in the U.S. need to follow these rules. It’s not just a domestic regulation—it has international consequences, even for activities taking place outside the USA.

When and how does the U.S. EAR apply outside the USA?

Here's where it gets even more interesting—and complex. Export Compliance obligations under the EAR extend beyond the borders of the United States. If your UK or EU-based company deals with items that are of U.S. origin, or that contain U.S. components above a certain de minimis threshold, then U.S. rules apply—even if the transaction never touches U.S. soil.

So yes, a conversation in Frankfurt, a lab test in Cambridge, or an email sent from Paris could all count as "deemed exports" if they involve sensitive U.S.-origin information shared with foreign nationals.

What steps can companies take to ensure compliance with deemed export controls?

The first step is awareness. Most companies trip up because they don’t realise they're dealing with controlled technology. Export Control Consultants (like myself) recommend a detailed Technology Control Plan (TCP). This plan restricts access to sensitive tech, trains staff, and implements internal controls.

Other essential measures include:

• Classifying all technology and data

• Screening all staff and visitors

• Training employees regularly

• Monitoring conversations and access permissions

Don’t rely on guesswork. A simple oversight can cost you millions in fines and reputational damage.

What are the licensing requirements and penalties?

To comply, a company must apply for a license from the BIS if the deemed export involves controlled technology and a foreign national. That application process can take time—so plan ahead.

Penalties? They’re severe. Civil penalties can reach up to $300,000 per violation or twice the value of the transaction, whichever is greater. Criminal penalties include up to 20 years in prison. Not to mention the reputational damage, especially in sectors like defence, AI, and biotech.

Arne’s Takeaway

Export Control isn’t just about shipping containers or customs checks. It's also about the data you share, the people you employ, and the knowledge you disclose. As an Export Control, Consultant, I always stress that deemed exports are the hidden iceberg under your compliance ship. Make sure you’re not the Titanic.

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Expert Recommendations

• Audit your technology: Classify everything you use and determine EAR applicability.

• Train your team: Knowledgeable staff are your best compliance defence.

• Implement a TCP: A Technology Control Plan should be mandatory if you handle controlled items.

• Consult a specialist: Don’t go it alone—compliance is complex.

Disclaimer

This blog is for educational purposes only and does not constitute legal advice. Always consult a qualified legal professional or Export Control Consultant to assess your specific situation.

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