Thursday, September 24, 2015

Technology – US export control laws

            This is the first in a series of posts concerning U.S. export control laws.

            There are a few federal agencies and laws involved in U.S. export controls, and in my opinion, the following three are the main agencies.    

            The U.S. Department of State's Directorate of Defense Trade Controls (DDTC) regulates the export and temporary import of goods, technical data, software and services designated by the State Department as having military significance under the Arms Export Control Act and the International Traffic in Arms Regulations (ITAR). 22 C.F.R. Chapter I, Subchapter M, Parts 120-130. The items subject to ITAR are identified on the U.S. Munitions List (USML). 22 C.F.R. Part 121.

            The U.S. Department of Commerce's Bureau of Industry and Security (BIS) regulates the export of most products, software and technology under the Export Administration Regulations (EAR).  15 C.F.R. Chapter VII, Subchapter C. The EAR focus on the export of “dual use” and military products, software and technology from the United States and the re-export of such items in foreign countries. The EAR cover: (i) all items in the U.S., (ii) all U.S. origin items located in foreign countries; and (iii) certain foreign-made items that incorporate or are based upon defined levels of U.S.-origin commodities, software and technology. 15 C.F.R. 734.3(a). The EAR also prohibit the export of certain items if they will be used for prohibited end uses, such as design, development of nuclear products.  15 C.F.R. Part 744.  The EAR also contains a list of embargoed countries, entities or industries with whom additional license requirements or no transactions are permitted. 15 C.F.R. Part 746.  Finally, the EAR has lists of individuals and entities with whom transactions are blocked. 15 C.F.R. Part 744.

            The U.S. Department of Treasury's Office of Foreign Assets Control (OFAC) administers a series of trade and economic sanctions that prohibit either most business transactions or certain business transactions with targeted countries. OFAC has lists of countries, and lists of individuals and entities with whom all or some transactions are prohibited. 

            Thus, in order to comply with U.S. export control laws, you must ensure compliance with all of the various laws and regulations concerning (a) the item being exported and (b) the person or entity receiving the export.

- Henry Park

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