There are generally three categories of key export control regulations, each of which is administered by a separate agency of the U.S. government:
1. Export Administration Regulation (“EAR”):
The EAR covers commercial items as well as “Dual Use” items that are on the Commerce Control List (“CCL”). “Dual use” refers to items that have both commercial and potential military or proliferation uses. These regulations are administered by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”).
Under the EAR, an export includes “release of technology or source code subject to the EAR” to a foreign national, including disclosing technical data to a foreign national in the United States.
2. International Traffic in Arms Regulations (“ITAR”):
The ITAR covers items on the United States Munitions List (“USML”) and generally applies to items that are inherently military in nature. These regulations are administered by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”).
Under the ITAR, an export is defined to include "disclosing of technical data to… (or) performing a defense service on behalf of… a foreign national," including disclosing technical data to a foreign national in the United States. In general, most transfers or releases of ITAR technical data or services to a foreign national requires an export license.
3. U.S. Economic Sanction Regulations:
The U.S. Department of Treasury, Office of Foreign Assets Control ("OFAC") administers sanction regulations, including comprehensive embargoes as well as sanctions against certain persons, e.g., Specially Designated Terrorists ("SDT"), Foreign Terrorist Organizations ("FTO"), Specially Designated Global Terrorists ("SDGT"), and Specially Designated Narcotics Traffickers ("SDNT")