In this week’s post, I explore something near and dear to my heart; namely, understanding the basics of export compliance. And in order to do that, one must first understand the purpose behind the US export compliance apparatus.
In essence, the U.S. export compliance apparatus is focused on preventing U.S.-sourced technology, goods, and services (collectively, the “commodities”) from falling into the hands of persons or countries with interests hostile to U.S. foreign policy.
The legal authorities and federal agencies comprising the U.S. export compliance apparatus are as follows:
- The International Traffic in Arms Regulations, 22 C.F.R., parts 120-130 (the “ITAR”) and the Arms Export Control Act, 22 U.S.C. § 2778, et seq. (the “AECA”), and regulated by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”);
- The Export Administration Regulations, 15 C.F.R., parts 730-774 (the “EAR”), and regulated by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”);
- The Foreign Assets Control Regulations, 31 C.F.R., parts 501-598, which address trade sanctions imposed on countries, persons and organizations, and regulated by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”).
The above are the primary legal authorities, including statutes and regulations, and the primary agencies, that form the US export compliance apparatus. Other sources of regulation and regulating agencies include:
- Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq. (the “FCPA”), and regulated by the U.S. Department of Justice;
- Foreign Agents Registration Act, 22 U.S.C. §§ 601, et seq. (the “FARA”), and regulated by the U.S. Department of Justice;
- The Assistance to Foreign Atomic Energy Activities Regulations, 10 C.F.R., part 810, and the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011, et seq. (the “AEA”), which pertain to non-proliferation and the export of nuclear energy-related materials, and regulated by the U.S. Department of Energy, National Nuclear Security Administration (“NNSA”);
- The Export and Import of Nuclear Equipment and Material Regulations, 10 C.F.R., part 110, and the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §§ 5801, et seq., and regulated by the U.S. Nuclear Regulatory Commission (the “NRC”); and
- The U.S. Munitions Import List, 27 C.F.R., part 447.21, and the AECA and 18 U.S.C. § 921(a) of the U.S. Criminal Code pertaining to “firearms,” and regulated by the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).
As you can see, the focus of export compliance analysis is driven by each commodity, and determining the requirements you must meet in order to export your commodity requires a case by case analysis. Next week, I will walk through a typical export compliance analysis that shows how all of the pieces work together.
Simon Courtman is a lawyer at Fluet Huber + Hoang, a full service law firm focused on the needs of growing government contractors. He previously served in the United States Air Force. You can reach him by email here.