EAR Compliance Services

EAR Compliance Lawyers Representing Companies in All Regulated Industries

The Export Administration Regulations (EAR), one of the primary sets of federal export control regulations, impose numerous restrictions and requirements on companies’ U.S. export operations. These restrictions and requirements are intended to protect national security and help facilitate the federal government’s foreign policy objectives; and, as a result, noncompliance can have serious consequences. To avoid substantial penalties, exporters and other companies must effectively manage all aspects of EAR compliance. 

At Oberheiden P.C., we provide comprehensive EAR compliance representation, and compliance representation for broader export regulations, to companies operating across the United States. We work closely with our clients to help them implement efficient and custom-tailored compliance programs that mitigate their risk of facing scrutiny from the U.S. Bureau of Industry and Security (BIS) and other federal authorities. We assist our clients with documenting their EAR compliance efforts as well—so that they are prepared to withstand scrutiny from the BIS or other federal authorities if necessary.

About Oberheiden P.C.’s EAR Compliance Team  

Our EAR compliance team is composed of senior lawyers and consultants, many of whom have prior experience working for the U.S. Department of Justice (DOJ) and other federal law enforcement authorities. With extensive experience in the public and private sectors, our lawyers and consultants are extremely well-versed in ITAR and EAR compliance and compliance under related statutes, including the Export Administration Act and the Arms Export Control Act. Since we also defend companies during EAR investigations, we have an intimate understanding of BIS’s and the DOJ’s enforcement priorities as well, and we rely on these insights when providing advice to our EAR compliance clients. 

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

3 Key Areas of EAR Compliance 

While there are numerous aspects of EAR compliance, companies’ obligations under U.S. export control laws and regulations broadly fall into three key areas. These include: (i) proper classification of exported items; (ii) obtaining required export authorizations; and, (iii) ensuring transactional compliance under the EAR. 

1. Proper Classification of Exported Items

Complying with the EAR starts with properly classifying items that fall within the scope of the regulations. Classification is a two-part process that involves identifying the correct category under the Commerce Control List (CCL) before applying the relevant regulations based on the item’s Export Control Classification Number (ECCN) product group. The 10 CCL categories are: 

• Category 0 – Nuclear Materials Facilities & Equipment [and Miscellaneous Items]
• Category 1 – Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins”
• Category 2 – Materials Processing
• Category 3 – Electronics
• Category 4 – Computers
• Category 5 Part 1 – Telecommunications
• Category 5 Part 2 – Information Security
• Category 6 – Sensors and Lasers
• Category 7 – Navigation and Avionics
• Category 8 – Marine
• Category 9 – Aerospace and Propulsion

The five ECCN product groups are: 

• Group A – Systems, Equipment, and Components 
• Group B – Test, Inspection, and Production Equipment
• Group C – Material 
• Group D – Software 
• Group E – Technology 

Our EAR compliance lawyers assist companies with identifying the relevant CCL and ECCN classifications for their products before assisting with developing and implementing custom-tailored compliance policies and procedures. These policies and procedures serve as the foundation of our clients’ EAR compliance programs, and proper implementation of these policies and procedures helps to ensure effective EAR compliance management on an ongoing basis. 

2. Obtaining Required Export Authorizations 

Products that are subject to the EAR often require export authorizations before they can be shipped or transmitted to foreign parties. These export authorizations typically take the form of an export license, and ensuring export licensing compliance is a key aspect of broader EAR compliance as well. We assist our clients with export licensing compliance matters including (but not limited to): 

• Determining when export licenses are required
• Documenting the applicability of export license exemptions 
• Documenting proper use of export license exemptions 
• Obtaining required export licenses prior to shipment or transmission 
• Ensuring that transactions comply with all applicable export license conditions 

Licensing issues (or apparent licensing issues) are a common trigger of EAR investigations. As a result, by duly prioritizing compliance in this area, companies can often reduce their risk of facing scrutiny from the BIS and its Office of Export Enforcement (OEE) significantly. 

3. Ensuring Transactional Compliance Under the EAR 

Along with managing classification and export authorization compliance, companies with U.S. export operations must also manage transactional compliance under the EAR. Companies’ transactional compliance obligations fall into two broad categories: (i) compliance with the 10 “general prohibitions” under the EAR; and, (ii) compliance with the EAR’s end-use-based and end-user-based controls. 

Complying with the 10 “General Prohibitions” Under the EAR

The EAR’s general prohibitions “describe certain exports, reexports, transfers (in-country), and other conduct, subject to the scope of the EAR, in which [companies] may not engage unless [they] either have a license from the Bureau of Industry and Security (BIS) or qualify under part 740 of the EAR for a License Exception from each applicable general prohibition.” Failure to comply with the general prohibitions with respect to any single transaction can expose companies to BIS (or OEE) enforcement action, which may lead to denied export privileges or other penalties. When failures are significant, systemic, or consistently overlooked, the risk of enforcement increases substantially. The 10 general prohibitions under the EAR are: 

• General Prohibition 1 – Export and Reexport of Controlled Items to Listed Countries 
• General Prohibition 2 – Reexport and Export from Abroad of Foreign-Made Items Incorporating More Than a De Minimis Amount of Controlled U.S. Content 
• General Prohibition 3 – Foreign-Direct Products
• General Prohibition 4 – Engaging in Actions Prohibited By a Denial Order 
• General Prohibition 5 – Export, Reexport, or Transfer (In-Country) to Prohibited End Uses and End Users 
• General Prohibition 6 – Export, Reexport, or Transfer (In-Country) to Embargoed Destinations 
• General Prohibition 7 – Support or Proliferation Activities and Certain Military-Intelligence End Uses and End Users
• General Prohibition 8 – In-Transit Shipments and Items to Be Unladen from Vessels or Aircraft 
• General Prohibition 9 – Violation of Any Order, Terms, or Conditions 
• General Prohibition 10 – Proceeding with Transactions with Knowledge that a Violation has Occurred or is About to Occur

Each of the 10 general prohibitions is detailed within the EAR, and determining whether a general prohibition applies (and, if so, what its implications are for a particular transaction) requires a careful review of the relevant regulatory provisions. Our EAR compliance lawyers assist our clients with both assessing the applicability of the general prohibitions on a case-by-case basis and implementing protocols designed to ensure that this assessment takes place when necessary. 

Complying with the EAR’s End-Use-Based and End-User-Based Controls

The EAR’s end-use-based controls and end-user-based controls place further restrictions on exporting controlled products from the United States to foreign countries. The end-use-based controls and end-user-based controls can both implicate export licensing requirements, and the BIS’s Supplement No. 3 to Part 732, “Know Your Customer” Guidance and Red Flags, provides some additional insight into when these controls apply. 

However, as the BIS acknowledges, its guidance will not provide a clear answer in all cases. As a result, as with other aspects of EAR compliance, it is critical that companies rely on the advice of counsel and take a custom-tailored approach to complying with the EAR’s end-use-based controls and end-user-based controls. 

FAQs: Managing EAR Compliance (and Understanding the Risks of Noncompliance) 

Speak with a Senior EAR Compliance Lawyer at Oberheiden P.C.

If you would like more information about our firm’s EAR compliance practice, we invite you to get in touch. We work with companies of all sizes and in all industries nationwide. To speak with a senior EAR compliance lawyer at Oberheiden P.C. in confidence, please call 888-680-1745 or request a call online today. 

Disclaimer:
The content on this site is informational only and describes mere allegations. The content does not suggest evidence, proof, or guaranteed liability. The merits of each case depend on specific facts. Prior results do not guarantee similar outcomes in future cases. For more details, please see our FTC and general disclaimers. Oberheiden Law is the law firm in charge.