Export Control Regulations

Export controls are implemented through five regulatory regimes, as follows:

(1) Export Administration Regulations (EAR): These are the Commerce Department’s “dual-use” controls under Title 15 CFR 700-799 governing hardware, materials, equipment, software, technology and technical data that Commerce defines as “dual use” i.e., having civilian and inherent military or defense application. Commerce places destination (country) and end-use/user-based controls by requiring prior authorization (license) prior to export.  Not all items on the Commerce Control List (CCL) are controlled for all countries. For example, the type of control such as “National Security,” “Nuclear Proliferation,” or “Biological/Chemical” (among other types controls), determines what types of items are controlled for particular countries and end uses based on the items specifications, capability and use.  

(2) International Traffic in Arms Regulations (ITAR): These are the State Department’s defense-based controls under Title 22 CFR 120-129 governing defense articles and activities. Defense articles are defined generally as hardware,materials, equipment, software, technology and technical data specifically designed or modified for defense or military application, without a civil performance or use equivalent. The ITAR governs many types of commercially available items built to military specifications commonly used in research activities, including but not limited to the Engineering, Biological, Information, and Space sciences. Unlike the EAR’s dual-use universe, exports of ITAR items are subject to licensing regardless of destination or end user/use, unless a specific license exception is met. In other words, all destinations potentially require licenses. And further, unlike the EAR, certain countries, such as China, are per se prohibited destinations under ITAR: no licenses will be issued.  

In addition, the ITAR also regulates a category of activities defined as “defense services.” Essentially these are activities which either involve disclosing ITAR technical data to foreign nationals (or data related to a defense article) even in the pursuit of fundamental research; or disclosing any technical data (including that which is not-controlled, dual use controlled or already in the public domain) to a foreign national or related organization affiliated with a military purpose. Activity that meets one or more of these definitions likewise triggers a licensing requirement.

(3) Office of Foreign Assets Controls (OFAC): These are the Treasury Department’s economic embargo controls under Title 31 CFR 500-598 governing which types of transactions are restricted with certain countries which OFAC defines as terrorist-sponsoring nations. Exports constitute only one of many types of restricted transactions which OFAC defines as providing a restricted service. While OFAC maintains economic embargoes with numerous countries, the only countries that directly impact exports (outbound and laboratory access) for our purposes are Cuba, Iran, Syria, N. Korea and Sudan. Similar to the EAR and ITAR, transactions with these countries require licenses, which may or may not be authorized depending on the country and nature of transaction.