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1、Basic Training in Export ControlDr. Mike CrissThe area of export control is complex and is not without risks. This article is not intended for those who are experienced in the day-to-day working of export control. Rather it is written by a generalist for generalists. By the time you have finished re
2、ading this article you will have a general understanding of what is meant by an export by those who enforce the laws and regulations around export control. You will also know some resources where you can get help and know what basic questions to ask yourself. Specifically, we will discuss:1. Who con
3、trols exports,2. What is an export,3. When an export license is needed,4. Key terms and definitions,5. Some important considerations, and6. Export Control ChecklistWho Controls Exports?A number of agencies are involved in the control of exported articles and data. The Department of Commerce through
4、the Bureau of Industry and Security (BIS) controls the export of commercial and dual use articles. Dual use articles are articles that have a commercial and military applications. The enabling statute for the Department of Commerce is Export Administration Act (EAA) and it is enforced, primarily by
5、the BIS through the Export Administration Regulation (EAR). The Department of State, through the Directorate of Defense Trade Controls, controls the export of defense articles. The enabling statute for the Department of State is the Arms Export Control Act and is enforced through the International T
6、raffic in Arms Regulation (ITAR). FMS is covered by another set of regulations and statutes and will not be discussed in this paper.Other agencies also have a role in export control. Arguably the major players are, however, the Department of Commerce and Department of State. Briefly those other agen
7、cies include: the Department of Treasury with the Office of Foreign Assets Control; the Department of Energy and the Nuclear Regulatory Commission; the Patent & Trademark Office and Bureau of the Census of the Department of Commerce; the Department of Homeland Security and Border and Transportation
8、Security; and the U.S. Customs Service/ICE. What is an Export?The Department of State defines an export as “Sending or taking a defense article out of the United States. Disclosing or transferring technical data to a foreign person whether in the United States or abroad. (Or,) Performing a defense s
9、ervice on behalf of or for the benefit of a foreign person whether in the United States or abroad. Paraphrased from the International Traffic in Arms Regulations, Department of State The Department of Commerce says an export is: “Any Article that is sent from the US to a foreign destination is an ex
10、port. EAR, Part 734For competitive, defense or other reasons, the export of an article may need to be controlled. The means of control is a license. Note too, that not all export controlled articles are tangible. As we will discuss later, data and ideas may also require a license. We will not overly
11、 concern ourselves with those articles that do not need a license other than to say that some articles (and ideas) are exempt from licensing or a license may be waived. Some examples of exports include articles or data that are:1. Articles sent regular surface mail,2. Hand carried articles,3. Schema
12、tics,4. Software,5. Articles down-loaded from the internet,6. E-mail,7. Items discussed during a telephone conversation8. Articles exported from the US temporarily9. Articles exported to a wholly-owned subsidiary10. Gifts that are exported11. Foreign-origin articles that are exported from US12. Arti
13、cles transshipped through the US13. Articles returned to the US (termed re-export)14. Release of technology or source code (termed sensitive technical data)Who is responsible for the export? Everyone that participates in the transaction is subject to export control laws and the implementing regulati
14、ons. Acting through a forwarding or other agent, or delegating authority does not relieve you of responsibility your responsibility.When do I need a License?For licenses under the EAR the general rules are: First, you need to determine if the commodity or technology is subject to the EAR. Not every
15、export subject to the EAR requires an export licenseyoull have to complete the rest of the process to see if yours does. Second, determine if your export is classified on the Commerce Control List (CCL). Third, refer to the EARs Country Chart to see if a license is needed for the destination country
16、. Fourth, consider whether any of the EARs ten general prohibitions apply. Fifth, if a license is necessary, check to see whether a license exception is available. We will discuss the details of how the EAR works when we review Key Terms and Definitions.For articles subject to the ITAR, the process begins by conculting the US Munitions List with th
