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Danger Zone: Tightening Export Controls
Export controls are a morass of overlapping jurisdictions dotted with strict liability and criminal landmines. Worse, criminal and civil penalties have been severely ratcheted up recently, and more appear on the horizon. An October 2004 article by George Prettyman and Gregory Wallace in this newsletter described the regulatory regime governing 'dual-use' products. But even since 2004, prosecution resources have swollen and priorities have shifted markedly. As part of its recently established National Security Division, the Department of Justice (DOJ) appointed a National Export Control Coordinator tasked with building the DOJ's capacity to investigate and prosecute export violations. Specifically, the Coordinator is to create greater synergy between the DOJ and other export enforcement and licensing agencies, oversee prosecutorial training for U.S. Attorneys, and monitor the progress of their export control prosecutions nationwide. For their part, U.S. Attorneys have increased funding and implemented new legal tools (including sending agents overseas or having them work 'undercover') to enable them to carry out their mandate in support of the Coordinator's work.
What's Covered?
Exports are defined broadly. They include items and services transferred by any means, including electronically, to a foreign destination or a foreign national in the United States. Most items can be exported without a license. Controlled items fall under two categories: 1) defense articles and services, and 2) civil and 'dual-use' items. The first category falls under the purview of the Department of State, which maintains the U.S. Munitions List of regulated export items. Dual-use exports under the second category are also regulated for 'national security reasons,' 15 C.F.R.
' 738.2, because they have both civil and military applications. Such items include high-speed cameras, metal alloys, restraint devices, and certain types of computers and software. The principal regulatory agency for these items, however, is the Department of Commerce, which, through its Bureau of Industry and Security (BIS), investigates unlawful exports of civil and dual-use items.
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