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U.S. Export Control Essentials

In Part 1 of our six-part education series on U.S. Export Controls, we covered the

  • What?

  • Who?

  • Why?

  • Where?

  • When?

  • How?

of U.S. controls.

We also explain the authorities’ understanding of export controls and elaborate on essential definitions.

We give an overview of the Export Administration Regulations (‘EAR’) implemented by the Bureau of Industry and Security (‘BIS’), which is part of the US Department of Commerce, and the International Traffic in Arms Regulations (‘ITAR’), administered by the Directorate of Defense Trade Controls (‘DDTC’), a division of the US Department of State.

This blog entry is a summary of the 90-minute educational webinar, aimed to assist learners in capturing the key points of the learning.

What are Export Controls

We discussed Export controls are restrictions imposed by governments on the tangible and intangible movement of certain

  • Goods

  • software and

  • technology

and on the provision of technical assistance related to controlled items and other restrictions on trade.

Reasons for U.S. Export Controls

  • Protecting national security

  • Implementing and supporting foreign policy objectives

  • Preventing the proliferation of weapons of mass destruction (“WMD”)

  • Protecting human rights

  • Addressing economic and short supply concerns; and

  • Combating terrorism

For companies

  • Denial of export privileges

  • Fines

  • Prison

  • Reputational damanage

Scope of U.S. Export Controls

WHERE and WHERE TO: Place of export & Destination

  • Every person in the US including a national of any other country, is subject to US export controls

  • Every item in the US, including EU or elsewhere made item, is subject to US export controls

WHO: Nationality of the exporter, parties to the export

  • A US national or a US company is subject to US export controls, even when all export activities occur outside US

  • May also be subject to the local country’s export controls

WHAT: Origin of the goods and/or technology

  • US origin items remain subject to US controls even after they leave the US and even after incorporation into a product in another country

  • May also be subject to the local country’s export controls


  • The International Traffic in Arms Regulations (ITAR) is managed by the State – United States Munitions List (USML) it is primarily focused on defense articles.

  • The Export Administration Regulations (EAR) is managed by the department of commerce – Commerce Control List (CCL) it controls less sensitive defense items and dual-use items

What do both regulate?

While the control lists are different, the ITAR and the EAR both regulate:

  • Export

  • Import

  • Reexport

  • Retransfer

These activities can involve:

  • Hardware

  • Software

  • Technical data

  • Technology

Other services depending on the transaction.

Both regulate U.S.-origin items wherever located, as well as U.S.-origin items incorporated into foreign-made items, wherever they are located, under certain conditions.

They also regulate the provision of certain services by U.S. persons to foreign persons in the United States and abroad.

What are the Export Administration Regulations?

  • Administered by U.S. Dept. of Commerce, Bureau of Industry and Security (BiS) Controls export and re-export activities of certain products

  • Many products controlled under EAR are classed as ‘Dual-Use’ but it also controls some military items and items which are purely commercial

  • An export licence may be required from the US authorities, this is dependant on the item, destination, end-user and end-use. There are numerous licence exceptions within the EAR.

  • No authorisation required for imports into the US

Regulated activities: Key Definitions

  • Export

Shipment from the US to a non-US location of hardware, software & technology/technical data

  • Re-export

Exports from one non-US location to another of US-origin hardware, software & technology

  • In-Country Transfers

Movements of US-origin hardware, software & technology within a country

  • Deemed export and re-exports

Release of technology/technical data to Non-U.S. persons in the US or “third” country nationals/persons outside the US is a deemed reexport to the persons home country

  • Re-exports or Transfers of non-US origin items

Non-US made products with US-origin content or produced using US technical data.

Facts about your transaction

The following five types of facts determine your obligations under the EAR and will be of help to you in reviewing these steps:

(1) What is it?

What an item is, for export control purposes, depends on its classification, which is its place on the Commerce Control List (see part 774 of the EAR).

(2) Where is it going?

The country of ultimate destination for export or reexport also determines licensing requirements (see parts 738 and 774 of the EAR concerning the Country Chart and the Commerce Control List).

(3) Who will receive it?

The ultimate end-user of your item cannot be a bad end-user. See General Prohibition Four (Denial Orders) in §736.2(b)(4) and parts 744 and 764 of the EAR

(4) What will they do with it?

The ultimate end-use of your item cannot be a bad end-user.

See General Prohibition Five (End-Use EndUser) in §736.2(b)(5) and part 744 of the EAR for general end-use and end-user restrictions.

(5) What else do they do?

Conduct such as contracting, financing, and freight forwarding in

support of a proliferation project (as described in §744.6 of the EAR) may prevent you from dealing with someone.




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