Proper and timely review of export licensing requirements is critical to your international business ventures.
Export of technology, know-how, and hardware are a major concern in international contracts and even in domestic contracts with foreign national employment, VISAs, visitors, consultants, or access to programs. Your company might be a company involved in many areas and technologies that are controlled because of DOD and U.S. Government interests.
Export laws were enacted to control the flow of vital U.S. technology for national security purposes, implement foreign policy, control U.S. technology, and to halt the proliferation of weapons of mass destruction.
The Department of State (DOS) is charged with controlling exports and defense services under the International Traffic in Arms Regulations (ITAR), which contains the U.S. Munitions List (USML). The ITAR restricts the export of USML articles and services that may be used for military applications. The Department of Commerce (DOC) implements and enforces the Export Administration Regulations (EAR), which contains the Commerce Control List. The DOC administers the export of commercial and dual use items, and their associated software and technical data.
In some cases, exports governed by the EAR require prior written assurances from the foreign customer that the export not be further released to other countries. Specific statements may also be required on the shipping documents. The use of exemptions may require written reporting. The following activities, if conducted prior to obtaining DOS and/or DOC approval, could constitute a violation of a U.S. Law:
- Talking to or emailing a foreign person – here in the U.S. or overseas – about data/technology.
- Permitting access or conducting a plant tour through sensitive areas (areas that are not necessarily classified) showing manufacturing know-how.
- Carrying technical documents (or memory device) on a business trip overseas.
- Shipping parts, components or hardware.
The key steps are to: identify what is an export; determine when the export may/will take place; if there are any foreign national issues, and take adequate measures to obtain advance approval from the DOS or DOC.
– Mike Lisagor