US Export Controls - Understanding the system

ITAR stands for International Traffic in Arms Regulations (ITAR).  These control ‘defence articles’ and ‘defence services’ designated on the US Munitions List (USML), i.e. ‘military items’. The ITAR is administered by US Government (USG) State Department, Directorate of Defence Trade Controls (DDTC).

EAR stands for Export Administration Regulations (EAR).  This part of the US export control regime is administered by USG Department of Commerce, Bureau of Industry and Security (BIS). This part controls non-ITAR items, i.e.. ‘dual-use’ items, that are allocated Export Control Classification Numbers (ECCNs) on the Commerce Control List (CCL) in the following categories of descending sensitivity / levels of restriction:

• ‘600 Series’ ECCNs for munitions related items (including those reclassified from USML) e.g. xY6zz
• ‘500 Series’ ECCNs for spacecraft related items e.g. 9x515x
• ‘Dual-Use’ items not specifically designed or modified for military use but that could be repurposed for military use. These have ECCNs using the same ten categories (0-9) and five ‘product groups’ (A-E) as the UK and EU Dual-Use lists e.g. 3A001a9 (neural network integrated circuits)

There is an ‘EAR99’ classification for all other items subject to EAR but not on the CCL (thus not generally licensable to export), which remain subject to restrictions regarding certain destinations.

Note: Each of the above EAR categories has specific restrictions and exceptions, making the correct initial jurisdiction classifications crucially important for compliance purposes. Where you are using or producing rated items we strongly recommend consulting the published legislation and guidance to ensure appropriate measures are in place to facilitate compliance.

The US export control system often refers to ‘retransfers’ and ‘reexports’ – these respectively mean:

• Further movement of the controlled items within the original destination country of export (including to discrete locations within a close radius or nationally); or
• Onward transfers to destinations and recipients in any third country

It is important to note that depending upon the jurisdiction (ITAR or EAR etc.), the type of item and the destination, different restrictions may apply in respect of such retransfers and reexports. It is strongly advised that you give careful consideration both in classifying your items and in identifying the rules that apply to them and any proposed movements to ensure compliance with restrictions and other requirements. Furthermore, controlled items originating from the UK may become subject to the US export controls where those items enter US territory and meet or exceed corresponding control ratings or otherwise restricted status under EAR or ITAR. You may contact the Research Office if you need advice.

The US export control regime recognises that certain disclosures or transfers of controlled items to certain individuals (typically foreign nationals that are not exempt) may be deemed to be an export or reexport. This applies specifically to individuals who are not US nationals, permanent residents etc. and who hold or have held nationality, citizenship, or permanent residency in prohibited nations, including dual nationals.

It remains important to note that foreign nationals may not be automatically prohibited from involvement in activities involving items subject to US export controls. For example, technology or source code released by entities outside the US will not be deemed to have been exported where disclosure or access is given to foreign nationals who have permanent residency in the US or the UK-see: eCFR:: 15 CFR 734.20 -- Activities that are not deemed reexports ..

The requirements and restrictions may differ between ITAR and EAR jurisdictions and according to the relevant classifications of the items or involved parties and jurisdictions, in addition to any exemptions. It is advisable to check carefully what the applicable requirements are before commencing a transaction or other activity involving controlled items of US origin.

Incorporation and derivation rules mean that non-US origin items may be subject to control where they are 'bundled’, ‘co-mingled’ with or incorporate any (ITAR) or above a specified proportion (EAR) of US-origin controlled items, or where they have been produced using US technology (certain ‘foreign direct products’ of US technology may be controlled: eCFR :: 15 CFR 734.9 -- Foreign-Direct Product (FDP) Rules.).

De minimis rules may apply to certain classes of EAR items (see: eCFR :: 15 CFR 734.4 -- De minimis U.S. content.), meaning that declarations may not be required in respect of ‘bundled’, ‘co-mingled’ or incorporated items that fall within the exemption thresholds published in the legislation. You are strongly encouraged to consult the published limits prior to exporting any items that incorporate or are derived from US origin items and technology.

The more numerous rules of the US export control regime underline the importance of careful review of end-use documentation (certifications, declarations, prior consignee statements etc.), whereby recipients of controlled items (consignees and end-users) are required to give undertakings regarding intended end-uses and compliance with specific restrictions, consent requirements, prohibitions, and security measures. It is strongly recommended that advice is sought from the Research Office prior to acceptance and signature of such documentation or undertakings.

The US regime has extra-territorial reach – the restrictions apply to designated items and can be enforced irrespective of involved nationalities or locations, retransfers, and re-exports. Furthermore, these rules can apply to items incorporating or derived from certain US technology.

The USG has extensive resources and capabilities to monitor and enforce compliance. This includes end-use monitoring (EUM) programmes e.g. Blue Lantern (Direct Commercial Sales of ITAR items) and Golden Sentry (Foreign Military Sales of ITAR items government to government).

The US regime is closely tied to prohibited nations, and foreign nationals [individuals who are not US nationals, permanent residents etc. and who hold or have held nationality, citizenship, or permanent residency in prohibited nations], including dual nationals. Certain disclosures to or access by them of controlled software or technology may constitute a ‘deemed’ export. Licences are generally required from relevant USG department prior to such exports, with limited exceptions e.g. third country nationals who are not permanent residents of the US or UK. Please see the above section on Deemed Exports for further information.

The US regime has more jurisdictions (USG departments and originating legislation), more categories of items and more combinations of restrictions, exceptions, exemptions, and governing authorities. Overall the US regime remains similar but more restrictive and burdensome than the UK regime.

The US regime may offer more restrictions concerning end-use in the context of specific items being exported to specific destinations e.g. eCFR :: 15 CFR 744.23 --"Supercomputer" and semiconductor manufacturing end use in the context of the People's Republic of China (PRC).

The UK regime has no concept of ‘deemed’ exports i.e. disclosures and transfers under UK law are nationality agnostic. The UK regime applies to transfers and disclosures of controlled items made from within the UK to destinations and recipients outside of the UK (excepting domestic transfers subject to WMD end-use controls). The UK regime has more widely defined end-use controls for unrated items.

The UK regime currently makes more extensive use of open licences and general authorisations (OGELs and GEAs) for exporting predefined items to eligible destinations, as equivalent to US exceptions. The USG is trialling expanded use of open licences alongside existing export licence exceptions.