Overview & Structure of U.S. Export Controls
Primarily for national security and foreign policy reasons, the United States maintains comprehensive trade controls on the export of goods, software, technology, and services (“items”), and the reexport or transfer of U.S.-origin items or items containing or produced with certain levels of U.S. inputs, to all destinations around the world. The legal authority for these controls is authorized by a variety of laws, and administrated by several different government agencies, depending on the nature of the items, the end-use and end-user, the transactional circumstances, and the country of ultimate destination. Each agency implements and enforces its own regulations. The primary legal authority and regulatory basis for these controls are as follows:
- The Export Control Reform Act of 2018 (ECRA) (50 U.S.C. §4801, et seq.). The ECRA controls all items that are not subject to preemptive jurisdiction by another agency or are not otherwise exempted from control under the ECRA. The ECRA is administrated by the Commerce Department’s Bureau of Industry and Security (BIS) through the Export Administration Regulations (EAR) (15 C.F.R. §§730–774).
- The Arms Export Control Act (22 U.S.C. §2751, et seq.). These controls relate to defense articles and defense services on the U.S. Munitions List (USML) administered through the International Traffic in Arms Regulations (ITAR) (22 C.F.R. §§120–130) by the State Department’s Directorate of Defense Trade Controls (DDTC).
- The Trading with the Enemy Act of 1917 (50 U.S.C. §§4301, et seq.), and the International Emergency Economic Powers Act (50 U.S.C. §1701, et seq.). The Treasury Department’s Office of Foreign Assets Control (OFAC) implements broad financial controls and embargoes over transactions with certain countries, entities, and persons. These regulations, which are found in several sections of 31 C.F.R.) include restrictions and prohibitions imposed on certain countries, such as Cuba, Iran, North Korea, Syria, and, most recently, Russia.
- While not a formal export control agency, the Commerce Department’s Census Bureau is responsible for maintaining and implementing regulations related to the preparation and submission of export declarations. Export declarations are key to the enforcement of the U.S. export control system, and are mandatory unless a specific exemption applies. Census shares this information with BIS, DDTC, OFAC, and other regulatory and enforcement agencies. The U.S. Foreign Trade Regulations (FTR) are found at 15 C.F.R. §30.
Other agencies responsible for certain nuclear-related export controls include the Department of Energy and the U.S. Nuclear Regulatory Commission, whose regulations are found, respectively, at 10 C.F.R. §810 and 10 C.F.R. §110.1.