The U.S. export control regime is vast, complex, and constantly changing. At least sixteen federal agencies are responsible for the enforcement of roughly thirty distinct, yet often overlapping, federal statutes and regulations.
Generally, the goal of this regime is to control the export and re-export of U.S. items for the purposes of: national security; foreign policy; short supply; reduction of nuclear proliferation; limitation of chemical and biological warfare; antiterrorism; crime control; enforcement of economic embargoes; and compliance with U.N. resolutions.
These laws apply to exports of both tangible and intangible (e.g., technology; technical data; software; trade secrets) items. Violations by business entities and natural persons are subject to both criminal and civil penalties.
There are three main federal authorities:
- The Export Administration Act (EAA) (which technically expired in 2001 but has been continued by executive authority under the International Emergency Economic Powers Act) regulates the export and re-export of commercial and “dual use” (i.e., may be used for commercial and military/proliferation applications) items. The Bureau of Industry and Security (BIS), part of the Department of Commerce (DOC), enforces the corresponding Export Administration Regulations (EAR).
- The Arms Export Control Act (AECA) regulates the export and re-export of “defense articles” and “defense services.” The Directorate of Defense Trade Controls (DDTC), part of the Department of State (DOS), enforces the corresponding International Traffic in Arms Regulations (ITAR).
- The Office of Foreign Assets Control (OFAC), part of the U.S. Department of Treasury, administers and enforces economic and trade sanctions against target countries, governments, persons, and activities. OFAC sanctions are principally authorized by Executive Orders under two broad Congressional grants of authority: the Trading with the Enemy Act (TWEA); and the International Emergency Economic Powers Act (IEEPA).
Under ITAR and EAR, the U.S. has jurisdiction with respect to a particular transaction if either: (1) the entity that exports the item is a “U.S. Person,” or (2) the item itself is of “U.S. Origin.”
Because jurisdiction can be found if the item involved is of “U.S. Origin,” (even if the “exporter” is a “foreign person”) EAR and ITAR have broad, extraterritorial reach.