Today’s Export Controls Legal Quick Hit Continued

A continuation of the legal quick hit which took place on today's New to In-house Committee Monthly Teleconference. For more information about committee teleconferences, click here.

The Export Administration Regulations ("EAR"), 15 C.F.R. §§ 730-774, promulgated under the authority of the Export Administration Act ("EAA"), 50 U.S.C. App. §§ 2401-2420, control the export and re-export of commodities having (i) both military and commercial applications (i.e. dual-use items), and (ii) strictly commercial applications. The U.S. Department of Commerce administers the EAR through its Bureau of Industry and Security ("BIS"). The EAR regulate “controlled” products, software, technologies, and materials designated on the Commerce Control List (“CCL”). Items on the CCL may be subject to licensing or other requirements, depending on end-destination, end-user, end-use, and the availability of prescribed exceptions.

Under the Arms Export Control Act ("AECA"), 22 U.S.C. § 2778 (1994), the U.S. Department of State, Directorate of Defense Trade Controls ("DDTC"), administers the International Traffic In Arms Regulations ("ITAR"), 22 C.F.R. §§ 120-130, which control the export of defense articles and related technology, information and services from the U.S. to foreign destinations and persons. The U.S. Munitions List (“USML”) designates those items subject to control by the ITAR, for which a license must be obtained prior to export. The ITAR also prescribe registration, record-keeping and reporting obligations for exporters and manufacturers of defense articles.

The EAR and ITAR are not the only controls on exports. Numerous other agencies’ regulations govern export of specialty items, such as controlled substances (Drug Enforcement Administration), fish and wildlife (Department of Interior), medical devices (Food & Drug Administration), natural gas and electric power (Department of Energy), nuclear materials and equipment (Nuclear Regulatory Commission), nuclear technology (Department of Energy), and patent filing data (Patent & Trademark Office).

In addition, the EAR also prescribe “antiboycott” regulations which prohibit the active or passive participation in boycotts or restrictive trade practices not supported by the U.S. See EAR Part 760. The antiboycott regulations require entities who receive requests by third parties to participate in a boycott to report to BIS the nature of the request, the entity or person making the request, the type of documents in which the request was received, and the response, if any, provided to the requester.

Also, both BIS under the EAR (see, e.g. EAR Part 746) and the U.S. Department of the Treasury, through the Office of Foreign Assets Control ("OFAC"), share responsibilities for the enforcement of economic sanctions on trade with foreign countries. OFAC administers the Foreign Assets Control Regulations (hereinafter "OFAC Regulations"), 31 C.F.R. Parts 500-597, issued pursuant to the Trading with the Enemy Act ("TWEA"), 50 U.S.C. §§ 1-44 and the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. §§ 1701-1706. The OFAC Regulations implement statutory economic trade sanctions imposed against several foreign countries. The sanctions range from partial to full trade embargoes and are imposed in addition to other U.S. export control law penalties.

-James Kearney
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