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EAR / ITAR INTRODUCTION EAR / ITAR INTRODUCTION

EAR / ITAR INTRODUCTION - PowerPoint Presentation

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EAR / ITAR INTRODUCTION - PPT Presentation

Back to Basics Ammon Hansen Raytheon Missile Systems Jason Prince Holland amp Hart US Export Controls How to Comply with Commercial DualUse and and Defense Article Regulations and US Trade Sanctions ID: 674789

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Slide1

EAR / ITAR INTRODUCTION Back to BasicsAmmon Hansen – Raytheon Missile SystemsJason Prince – Holland & Hart

U.S. Export Controls

How to Comply with Commercial, Dual-Use, and

and Defense Article Regulations and U.S. Trade SanctionsSlide2

Disclaimer

This presentation, related materials and subsequent discussion are provided for educational purposes only. They do not constitute legal advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the speaker. This presentation is not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel. Slide3

AGENDA

IntroductionsEAR / ITAR Overview Licensing and Commodity JurisdictionOFAC Compliance Lunch KeynotesEconomic Espionage and Theft of Trade Secrets

Export Regulations EnforcementExport Control Reform Initiative Update

ITAR Registration Requirements (Including ITAR Part 129 Brokering

)

Export Controls Compliance Programs (Including Key Lists to Check) and Voluntary DisclosuresSlide4

EXPORTS AND INTERNATIONAL BUSINESS

U.S. export controls apply to all international businessUnderstanding the regulatory schemeThe consequences of failing to comply with the regulationsTaking steps to minimize the risk of violations

Compliance and risk mitigationSlide5

REGULATORY ENVIRONMENT

Enforcement of export controls is a priority for the U.S. governmentNational securityForeign policyRisk of enforcement varies depending on product/destinationDemonstrably effective compliance programs and policies

have become a necessity

Slide6

TRAINING AND CORPORATE COMPLIANCE

Cost Effective MeasureA compliance program designed to protect against inadvertent violations is an effective defensive tool (if implemented)In the event of a potential violation, demonstrable training and good recordkeeping can avert an investigationAvoid expensive legal feesSlide7

UNDERSTANDING THE CONSEQUENCES

Criminal prosecution of executives (up to 20 years in jail).Denial

of U.S. export privileges.For foreign companies, violations can result in denial of entry to U.S. market or access to U.S. technology.

Debarment

from U.S. Government contracts.Slide8

UNDERSTANDING THE CONSEQUENCES

Potential Monetary Penalties in the MillionsCommerce Department/Treasury Department

Up to $250,000 civil penalty per violation

$

1,000,000 for willful violations (criminal) for corporations

(or 5 x the value of the export, whichever is greater).

State

Department =

Up to $500,000

per

violationSlide9

WHY YOU SHOULD CARE ABOUT EXPORT

CONTROLSIn summary:

U.S. export control laws are premised on national security and foreign policy

Risk of enforcement varies depending on

product, international

(or domestic)

developments

Penalties and defense

costs can be

highSlide10

ROADMAP TO THE AGENCIES THAT REGULATE U.S. EXPORTSSlide11

U.S. EXPORT CONTROL LAWS IN GENERAL

With whom do we conduct business?What do we export, i.e., services, know-how, data?How do we conduct business?

How can we demonstrate compliance?Slide12

U.S. EXPORT CONTROL LAWS IN GENERAL

What’s Covered?Physical commodities, products, componentsSoftwareTechnology / technical dataKnow-howServices, including training, teaching, etc.Slide13

THE AGENCIES AND THE REGULATIONS

U.S. Commerce Department Bureau of Industry and Security (BIS)Export Administration Act (Expired)

International Emergency Economic Powers Act (IEEPA)Export

Administration Regulations (EAR)Slide14

Export and reexport of:

items materials software

technologyCommercial vs. Dual-Use

Denied Persons List, Entity List, Unverified List

Antiboycott restrictions

THE AGENCIES AND THE REGULATIONS Slide15

U.S. State Department Directorate of Defense Trade Controls

Arms Export Control Act (AECA)International Traffic in Arms Regulations (ITAR)THE AGENCIES AND THE REGULATIONS Slide16

Export, re-export and temporary import of:

Defense ArticlesTechnical Data Furnishing of:Defense Services

Debarred Parties List Brokering

THE AGENCIES AND THE REGULATIONS Slide17

THE AGENCIES AND THE

REGULATIONSU.S. Treasury Department Office of Foreign Assets Control (OFAC)

International Emergency Economic Powers Act (IEEPA)Trading with the Enemy Act

Foreign Assets Control RegulationsSlide18

Specially Designated Nationals (SDN) and Blocked Persons List

Drug traffickersTerroristsOthersOther sanctioned persons lists

Many sanctions programs/many different restrictionsComprehensive vs. Targeted

ITAR Section 126.1 countries

THE AGENCIES AND THE

REGULATIONSSlide19

THE AGENCIES AND THE REGULATIONS

Other agencies and related controls:U.S. Department of Defense

Defense Technology and Security Administration (DTSA)Homeland Security

Customs and Border Protection

U.S. Department of Energy

Nuclear Regulatory Commission

There are many other agencies playing different roles in international tradeSlide20

THE ITAR AND THE EAR: STRUCTURE, KEY CONCEPTS, AND DEFINITIONSSlide21

CLASSIFICATION - ITAR

PartTopic120

Definitions

121

USML

122

Registration

123

Export

of Articles

124

Export of Services

125

Export of Data

Part

Topic

126

General Policies

127

Violations/Penalties

128

Enforcement Proceedings

129

Brokering

130

Fees,

Commissions and Political

ContributionsSlide22

CLASSIFICATION - EAR

The U.S. Commerce Control List (CCL)

describes items subject to the jurisdiction of the EAR

It consists of 10 general categories divided into 5 more specific categories of items

A. System Equipment and Components

B. Test, Inspection and Production Equipment

C. Materials

D. Software

E. Technology

Export Control Classification Numbers vs. EAR99

EAR Section 738 – the Country ChartSlide23

KEY DEFINITIONS UNDER ITAR AND EAR

ExportForeign Person / Foreign National

Defense Article / Dual-Use ItemTechnical Data / Technology

Defense

ServicesSlide24

EXPORT - ITAR

Under the ITAR, “export” means:Sending or taking defense articles outside the U.S. in any manner

Sending or taking technical data outside the U.S. in any manner Disclosing or transferring technical data to a foreign person whether in the U.S. or abroad

The performance of a defense service on behalf of, or for the benefit of, a foreign person whether in the U.S. or abroad

Slide25

Under the EAR, “export” means: an actual shipment or transmission of items subject to the EAR out of the U.S., or the release of technology or software subject to the EAR to a foreign national in the U.S. “Deemed Export” rule “Sending or taking” (ITAR) vs.

“actual shipment” (EAR) “Defense services” (ITAR) vs. no mention of services (EAR)

EXPORT

-

EARSlide26

FOREIGN PERSON - ITAR

The ITAR define “foreign person” as:Any person, including a company employee, who is not a citizen or national of the United States, or who has not been lawfully admitted for permanent residence in the United States

Includes all visa holders, including those who are employees of U.S. companies, and U.S. or foreign persons who are employees of foreign companies, international organizations, foreign governments, or any agency or subdivision of foreign governments (e.g

., diplomatic missions)

Includes corporations and organizations organized in foreign countriesSlide27

FOREIGN NATIONAL - EAR

Under the EAR, the equivalent term is “foreign national”Any individual who is

not (a) a U.S. legal permanent resident; (2) a U.S. citizen; or (3) a “protected person” under 8 U.S.C. 1324b(a)(3)

Different criteria for foreign person / foreign national:

Country of birth (ITAR)

Country of permanent residence (EAR)

Same definition of “U.S. person” under the ITAR and the EARSlide28

DEFENSE ARTICLE - ITAR

The ITAR define “defense article” as: Any item on the U.S. Munitions List and any technical data directly related to such item

It includes “technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in the U.S. Munitions List” It also includes forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles

It does

not

include basic marketing information on function or purpose or general system descriptionsSlide29

DUAL-USE ITEM - EAR

The EAR control the export and re-export of purely commercial and dual-use items “Dual-use” items are:

Items that have both commercial and military or proliferation applications“Dual-use” items present special risks Commodity Jurisdiction Requests may be required to determine if an item is dual-use or a defense articleSlide30

TECHNICAL DATA - ITAR

The ITAR define “technical data” as:

Information which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of “defense articles” (e.g., blueprints, photographs, plans, instructions, documentation)

Classified information

related

to “defense articles”

Information

covered

by an invention secrecy order

Software directly related to “defense articles”Slide31

TECHNOLOGY - EAR

The EAR control the release of “technology” to foreign nationals

“Technology” refers to: Specific information necessary for the “development,” “production,” or “use” of a product and that takes the form of “technical data” or “technical assistance”

Controlled “technology” is defined in the General Technology Note and in the Commerce Control List

It is key to understand the defined terms within the definition of “technology” to determine if a license may be requiredSlide32

TECHNOLOGY - EAR

“Development” is: Related to all stages prior to serial production, such as design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, and layouts

“Production” means:

All production stages, such as product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality

assuranceSlide33

TECHNOLOGY - EAR

“Use” means: Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing

“Technical data” may consist of:

Blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, and read-only memories

“Technical assistance” may consist of:

Instruction, skills training, working knowledge, consulting services, and it may involve transfer of “technical data”Slide34

The ITAR define “defense service” as:The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; The furnishing to foreign persons of any technical data

, whether in the United States or abroad; or Military training of foreign units, whether in U.S. or abroadAgain

, the EAR do not mention the term “defense service”

DEFENSE SERVICE - ITARSlide35

EXPORT CONTROL REFORM

Harmonization of Key DefinitionsDepartment of State and Department of Commerce review/harmonization of key terms in the ITAR and the EAR, including:

Technical DataTechnology

Public Domain

Fundamental Research

Electronic transmission and storage of data (cloud computing)

STATUS – Under Review / Proposed RulesSlide36

QUESTIONS?