The United States, like many countries, regulates the export and reexport not only of military items, but items that are considered “dual-use”. Any item that is exported from the U.S., or has more than a minimal amount of U.S. content, will be subject to U.S. export control laws. Dual-use items are items that have both commercial and military or “proliferation” applications. Proliferation refers to the spread or growth of weapons of mass destruction. Exports of these dual-use items are governed by the Export Administration Regulations.
Because the scope of the EAR is wide, commercial items that have no obvious military use are still governed by the EAR. This does not mean that export of the item is forbidden. It means that in order to export the item or share technology with a foreign national, a license might need to be obtained from the Department of Commerce Bureau of Industry and Security (BIS). Whether a license is required depends both upon the product and where it falls in the EAR classification scheme (broken out based upon function/use), and the country of proposed export. It can also depend on the intended end use or the intended end user of the product.
In addition to exports, the EAR regulates “reexports”, a shipment between two foreign countries of items that originated in the U.S., and restricts the transfer of controlled technology that is “deemed exported.” Under the regulations, technology is “released” for export or “deemed exported” when “it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology.”
When most people think of an export they think of a shipping container filled with tangible items to be shipped to a foreign land to be sold into the commerce of that land. People tend not to associate the release of information to an individual in the United States as constituting an export.
But a “deemed export” is exactly that. Under the Export Administration Regulations (“EAR”), it is unlawful to expose certain foreign nationals in the U.S. to certain technology or source code without an export license. The type of exposure can vary, ranging from an oral exchange of information with visiting scientists to a demonstration or visual inspection of U.S. origin equipment or other facilities on a lab tour.Attorneys at Barnes, Richardson have hands-on experience fashioning export compliance programs to deal with EAR and BIS compliance. Whether it be counseling on issues involving a deemed export or assisting a client procure a BIS license, our lawyers understand the complexity of the EAR and can provide guidance to companies looking for help meeting their export regulatory requirements.
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