Export controls determine whether you must obtain an advanced U.S. government authorization before shipping your goods or releasing your software or data from the United States, from or between other countries, or to non-U.S. persons in the United States. Whether an authorization is required depends on what your item is (its “classification”), where it is going, to whom it is going, and how it will ultimately be used.
Our attorneys have a deep knowledge of U.S. export controls that spans across industries. We are experienced with cutting edge controls applying to the high-risk semiconductor manufacturing, data center, artificial intelligence, defense manufacturing, unmanned aerial vehicle, and biotechnology industries; with controls on items that were traditionally less regulated; and with long-standing controls covering other industries.
Wardlaw Trade Law can help your organization:
Let us think about your export controls issue through a holistic lens.
We can also work with partners to classify your items, audit your export declarations, and respond to a government subpoena or investigation.
Need to learn more about U.S. export controls before you get started?
U.S. export controls take several forms. They follow an item manufactured in the United States for its lifetime, wherever it may travel to, regardless of how many times it may change hands, or whether a non-U.S. person is involved. They also restrict certain U.S. person activities involving both U.S. and foreign-made items. Finally, they apply to some items developed or manufactured outside of the United States. This can happen when items have sufficient U.S.-origin content pursuant to the U.S. “de minimis” and ITAR “see-through” rules. Or it can occur when items contain no U.S.-origin content at all but were (a) made directly or indirectly using U.S. origin technology or software and are (b) destined for certain sensitive jurisdictions, end uses, or end users pursuant to one of the U.S. “foreign direct product rules.”
In the United States, there are two export control regimes, each with its own regulator: The Export Administration Regulations (“EAR”), administered by the Department of Commerce’s Bureau of Industry and Security (“BIS”), and the International Traffic in Arms Regulations (“ITAR”), administered by the U.S. Department of State’s Directorate of Defense Trade Controls (“DDTC”).
The EAR governs the export of “items” (a term of art in the export control world that covers physical goods, equipment, materials, software, and ideas) that are primarily or even entirely used for a civilian or commercial purpose, but that could be misused for a military purpose by a motivated party. These items are known as “dual-use” goods because they have both a commercial and a military use.
The ITAR governs the export of items designed for military use and certain activities involving those items. The ITAR refers to the items it covers as “defense articles”—a term that includes physical items, software, and ideas—and the activities it covers as “defense services” and “brokering” (i.e., brokering the sale of a defense article or service).
Unsurprisingly, the ITAR—with its emphasis on defense articles—is significantly more restrictive than the EAR is. The default is that all ITAR-controlled items require U.S. government review and authorization (in the form of a license) prior to export, while EAR-controlled items only sometimes do. More cumbersome still, if the ITAR controls items that a company makes, sells, or exports, that company has to pre-register with the DDTC (and renew that registration annually) before it can even consider getting a transaction-specific license. That is, ultimately any exporter of defense articles will need both a registration and one or more licenses. On top of that, ITAR registrants must notify DDTC and update their registration when certain facts, like ownership or management, change or are about to change.
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