U.S. Export Controls Administered by
the Departments of Commerce, State, and the Treasury

The United States government regulates exports of goods and technology from the United States for three primary reasons:  to restrict the flow of goods and technology which could make a significant contribution to the potential of countries and organizations that threaten the national security of the United States; to advance the foreign policy goals of the United States; and to preserve supplies of scarce materials.  Such trade restrictions may be on the particular country to which the goods are destined; on the type of good, service, or technology involved; on the type of end-use to which the good, service, or technology will be put; or on the identity of the purchaser.

The United States implements these policies by authorizing U.S. agencies to promulgate regulations controlling exports of goods or technology subject to U.S. jurisdiction.  The principal U.S. agency responsible for regulating exports is the Bureau of Industry and Security (“BIS”), an agency of the Department of Commerce (“DOC”).  Other U.S. agencies with significant responsibility for export controls include the Department of State’s Directorate of Defense Trade Controls (munitions) and the Department of Energy (nuclear equipment).  The Treasury Department’s Office of Foreign Assets Control regulates transactions (both out-bound and in-bound) with particular countries whose regimes are deemed to present a security or humanitarian threat, as well as with certain proscribed persons or organizations, chiefly those involved in terrorism or narcotics trafficking or that are agents of proscribed regimes.

The regulations administered by these agencies restrict not only exports of weapons and directly related technologies but also of so-called “dual-use” articles and technologies – that is, articles and technologies that have benign civilian uses but that could also contribute to undesirable technological developments in the hands of hostile countries or individuals.  In addition, the United States restricts the export of information or technical data and software relating to a controlled commodity.  Exports of weapons and directly related technologies are generally regulated by the State Department’s Office of Defense Trade Controls (“ODTC”) under the International Traffic in Arms Regulations.  Dual-use items are regulated by the Commerce Department’s Bureau of Industry and Security through its Export Administration Regulations (“EAR”).  In certain instances, the OFAC rules cover transactions involving U.S. persons even where no U.S. goods or technology are involved or where such goods are not otherwise controlled.

deKieffer & Horgan, PLLC’s attorneys have extensive experience in counseling clients on export control matters.  The United States is continuously revising its export controls to accommodate technological, political, and economic developments in world trade; and deKieffer & Horgan, PLLC helps clients to cope with constantly evolving export control regulations by developing export control compliance programs, obtaining licenses needed to export advanced technology, and counseling clients on how to avoid running afoul of U.S. export control laws.  Such counseling includes not only advice on the technical application of the rules to a client’s particular circumstances but also sensitive strategic advice when a client discovers that a violation of the export rules has occurred. 

RELEVANT PUBLICATIONS AND PRESENTATIONS BY D&H , PLLC ATTORNEYS

Donald E. deKieffer, Export Controls as an Instrument of United States Foreign Policy:  Evaluating the Costs, Law and Policy of Export Controls (American Bar Association, 1993).

Donald E. deKieffer, American Sanctions, New Law Journal (U.K.) Vol. 142, No. 6570 (Oct. 2, 1992).

Donald E. deKieffer, Foreign Policy Trade Controls and the GATT, 22 Journal of World Trade 73 (June 1988).

Donald E. deKieffer, Foreign Policy Export Controls:  A Proposal for Reform, 11 North Carolina Journal of International Law and Commercial Regulation (Winter 1986).

Donald E. deKieffer, The Purpose of Sanctions, 15 Case Western Reserve Journal of International Law 205 (Spring 1983).

Donald E. deKieffer, Extraterritorial Application of U.S. Export Controls - The Siberian Pipeline, Proceedings, 77th Annual Meeting, The American Society of International Law 241 (April 14-16, 1983).

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