Dual-Use Export Controls on Nanotechnology

Dual-Use Export Controls on Nanotechnology JAMIE A. JOINER ABSTRACT One of the most important policy challenges posed by the proliferation of nanoscience and nanotechnology is preventing dangerous uses of the technology while cultivating development and commercialization of nanotech-based products. The export control laws were drafted prior to the widespread development and commercialization of engineered nanomaterials. As a result, there are a variety of ambiguities about how the regulations apply to nanotechnology. In this article, lawyer and export control expert Jamie Joiner provides an overview of the relevant laws and engages in a detailed analysis of how they apply to nanomaterials and products incorporating nanomaterials. She offers guidance to companies, universities, and research institutions in navigating the export control regimes. I. OVERVIEW OF DUAL-USE EXPORT CONTROL REGIMES 1. Multilateral Control Regimes P erhaps because the United States has been one of the most vocal countries when it comes to export controls there is a misconception among some that only the U.S. maintains controls on exports of dual-use items. 1 While the U.S. in some instances may enforce its export restrictions more aggressively than others, virtually all developed nations of the world have an export control regime in place. Many nations are party to one or more international treaties, agreements or conventions, the purpose of which is to make the world more secure by the harmonized implementation and enforcement of export controls by member nations. The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies 2 (the Wassenaar Arrangement ) was established to contribute to regional and Jamie A. Joiner is a Partner in the International Trade, Customs and Export Controls practice group in the Houston office of Baker & Hostetler LLP. 1 The U.S., for example, conducts export compliance training overseas, including training on U.S. reexport controls for the public, as well as training of foreign Customs and other governmental officials by U.S. export regulators. Trainings are currently scheduled in the following foreign locales for calendar year 2008: Tokyo, Osaka, Hong Kong, Singapore, and Kuala Lumpur. See Bureau of Industry and Security, U.S. Dept. of Commerce, http://www.bis.doc.gov/seminarsandtraining/elsem.htm (last visited Feb. 23, 2008). 2 The name Wassenaar Arrangement comes from Wassenaar, a town located in a suburb of the Hague, Netherlands, where an agreement was reached in 1995 to form a new type of multilateral export control cooperation. NANOTECHNOLOGY LAW & BUSINESS SPRING 2008 53

Joiner international security and stability by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilizing accumulations. 3 Officially established in December 1995, the Wassenaar Arrangement grew out of the former Coordinating Committee for Multilateral Export Controls ( COCOM ) export control regime which operated during the Cold War. 4 There are currently 40 member countries participating in the Wassenaar Arrangement. 5 The Wassenaar Arrangement maintains a Control List of the products, software and technology that are determined to be Dual Use and Military Goods and Technologies. 6 Each Member state imposes its own national policies, generally based on or in keeping with the Wassenaar Control List, to ensure that transfers of dual-use goods and technologies do not support or lead to the enhancement of military capabilities which might undermine the Wassenaar Arrangement s goals, either through direct supply or unauthorized diversion. 7 In practice, there are occasionally inconsistent interpretations by member states of their national lists. With respect to nanotechnology this may be the case currently and will likely remain so in the near future. Of the various multilateral control regimes, the Wassenaar Arrangement may be the most likely to entertain and eventually adopt a multilateral policy on export controls on nanotechnology materials based on its coverage of Advanced Materials. There are a number of other multilateral export control conventions and agreements that also may have an impact on nanotechnology materials and products, including: The Australia Group, an informal forum of countries which, through the harmonization of export controls, seeks to ensure that exports do not contribute to the development of chemical or biological weapons; 8 The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and On Their Destruction, also referred to as the Chemical Weapons Convention ( CWC ), an agreement whose aim is to eliminate chemical weapons by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties; 9 and The Missile Technology Control Regime ( MTCR ), an informal and voluntary association of countries which share the goals of non-proliferation of unmanned delivery systems capable of delivering weapons of mass destruction ( WMD ), and which seek to coordinate national export licensing efforts aimed at preventing proliferation. 10 See Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Frequently Asked Questions, www.wassenaar.org/faq/index.html (last visited Feb. 23, 2008). 3 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Introduction, http://www.wassenaar.org/introduction/index.html (last visited Feb. 23, 2008). 4 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Genesis of the Wassenaar Arrangement, http://www.wassennaar.org/introduction/origins.html (last visited Feb. 23, 2008). 5 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Introduction, http://www.wassenaar.org/participants/index.html (last visited Feb. 23, 2008) (list of member countries). 6 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Control Lists, http://www.wassenaar.org/controllists/index.html (last visited Feb. 23, 2008) (control lists of dual use goods, technologies and munitions). 7 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Introduction, http://wassenaar.org/introduction/index.html (last visited Feb. 23, 2008). 8 The Australia Group, http://www.australiagroup.net/en/index.html (last visited Feb. 23, 2008). 9 Organisation for the Prohibition of Chemical Weapons, The Chemical Weapons Ban: Facts and Figures, http://www.opcw.org/factsandfigures/index.html (last visited Feb. 23, 2008). 10 Missile Technology Control Regime, http://www.mtcr.info/english/index.html (last visited Feb. 23, 2008). 54 NANOTECHNOLOGY LAW & BUSINESS Volume 5 No. 1

Dual-Use Export Controls on Nanotechnology These existing multilateral control regimes may leave a whole host of products based on nanotechnology that have military or dual-use applications uncontrolled because the existing regimes were not crafted with nanotechnology in mind. 11 While some member nations such as the United States apply existing controls to cover products based on nanotechnology, others may not. 2. U.S. Export Controls The United States implements the various multilateral controls discussed above as well as its own unilateral controls on exports of certain items 12 to certain destinations. While a number of different agencies have a hand in the regulation of U.S. exports, there are generally two primary separate export control regimes in the United States. The first is the regime for dual-use exports, which is administered and enforced by the U.S. Department of Commerce, Bureau of Industry and Security ( BIS ). This regime is the focus of this article. The second is the regime for defense articles and services, which is administered and enforced by the U.S. Department of State, Directorate of Defense Trade Controls ( DDTC ). Export controls are often erroneously viewed as prohibitions on exports. This is not the case. Only in rare instances are proposed dual-use export transactions actually prohibited by U.S. law. The BIS controls on exports typically take the form of a license requirement that may be applied for from the BIS. The BIS does not assess an application or license issuance fee. The purpose of the licensing requirement, which applies to only a small percentage of total U.S. exports, is to enable U.S. Government regulators to review the proposed transaction, including checking via national intelligence sources the legitimacy of the end-users of the items to be exported. Certain other U.S. Government agencies have the right to review license applications submitted to the BIS and these applications therefore undergo what is known as inter-agency review. Reviewing agencies are required to provide BIS with a recommendation either to approve (with or without conditions or riders) or deny the license application within 30 days of receipt of the initial referral. 13 The dual-use export control regulations, called the Export Administration Regulations ( EAR ), contain a list of items that the U.S. Government has designated as dual-use items. Dual-use refers to items that have both a commercial and military or prohibited application. This dual-use control list is called the Commerce Control List ( CCL ). See Table 1 for a listing of the CCL Categories. 11 See generally Juan Pablo Pardo-Duerra & Francisco Aguayo, Nanotechnology and the International Regime on Chemical and Biological Weapons, 2 J. NANOTECHNOLOGY L. & BUS. 55 (2005); Robert D. Pinson, Is Nanotechnology Prohibited by the Biological and Chemical Weapons Conventions?, 22 BERKELEY J. INT L L. 279 (2004) (raising the question of whether nanotechnology is prohibited by the Biological and Chemical Weapons Conventions ). 12 References to items includes products, software and technology. This reflects the definition of items used in the U.S. Export Administration Regulations. 15 C.F.R. 774.1 (2007). 13 15 C.F.R. 750.4(d)(2) (2007). NANOTECHNOLOGY LAW & BUSINESS SPRING 2008 55

Joiner TABLE 1: COMMERCE CONTROL LIST Category 0 Category 1 Category 2 Category 3 Category 4 Category 5 (Part 1) Category 5 (Part 2) Category 6 Category 7 Category 8 Category 9 Nuclear Materials, Facilities & Equipment (and Miscellaneous Items) Materials, Chemicals, Microorganisms, and Toxins Materials Processing Electronics Computers Telecommunications Information Security Sensors and Lasers Navigation and Avionics Marine Propulsion Systems, Space Vehicles and Related Equipment Items listed on the CCL contain one or more control codes that indicate the reason(s) for control of that item. See Table 2 for a listing of the CCL-based reasons for control. TABLE 2: CCL-BASED REASONS FOR CONTROL CB NP NS MT RS CC AT Proliferation of Chemical and Biological Weapons Nuclear Nonproliferation National Security Missile Technology Regional Stability Crime Control Anti-Terrorism To determine whether a particular item requires an export license to be exported to a given country, the item must first be correctly classified on the CCL. The relevant CCL provision will indicate the applicable Reason(s) for Control code(s). Using these codes, one would then look up the country to 56 NANOTECHNOLOGY LAW & BUSINESS Volume 5 No. 1

Dual-Use Export Controls on Nanotechnology which the contemplated export will be made in the Commerce Country Chart. 14 If there is an X in the block for the relevant country corresponding to the applicable Reasons for Control Code(s), an export license is required, unless a License Exception is available. For example, certain pumps and valves with a high content of anti-corrosive metals such as nickel and chromium are controlled for Chemical and Biological Weapons ( CB ) and Anti-Terrorism ( AT ) reasons. These are designated dual-use items because while they could be used in a civilian petrochemical plant, they could also be used in a chemical weapons plant. If someone wanted to export such pumps or valves to India, for example, an export license would be required because items with control code CB2 require an export license to India as indicated by the X in the corresponding block for India and CB2 in the Commerce Country Chart. There are a number of License Exceptions that may be available, depending upon many factors, but a discussion of the License Exceptions is beyond the scope of this article. Additionally, there are other prohibitions that are not dependent upon the CCL classification of the item, that must be reviewed to ensure that the transaction does not require a license and these include restrictions on exporting to a prohibited end-user. 15 While the focus of this article is on dual-use exports, mention must be made of the controls on military or defense articles and services that fall within the purview of the DDTC. The International Traffic in Arms Regulations ( ITAR ) apply to manufacturers and exporters of defense articles and services. The ITAR contains the U.S. Munitions List ( USML ) which is akin to the CCL but lists defense articles as opposed to the dual-use items that are listed on the CCL. The USML is deceptively shorter than the CCL because it is written more broadly. The CCL tends to contain more detailed technical specifications to describe controlled items than does the USML. When it comes to technology in particular, it is crucial to ensure that classification is correct and that both lists are reviewed to determine which set of regulations the ITAR or the EAR applies. Where doubt exists the mechanism for obtaining formal review of a given technology, product or software is a Commodity Jurisdiction ( CJ ) request, which may be filed with the DDTC. A CJ determination will tell the applicant whether the DDTC or the BIS has jurisdiction over the item in question. The proper classification of technology is particularly critical in light of the existence of the deemed export rule under the EAR. Under the deemed export rule, when technology is released to a foreign national in the United States, it is deemed to be an export to the home country of the foreign national. 16 The ITAR contains the same general rule regarding sharing technology with foreign nationals. II. DUAL-USE EXPORT CONTROLS ON THE BUILDING BLOCKS17 OF NANOTECHNOLOGY AND ITEMS PRODUCED WITH OR CONTAINING NANOMATERIALS In December 2005, the International Risk Governance Council ( IRGC ), a Swiss private foundation, published the results of its Survey on Nanotechnology Governance, Volume A: The Role of 14 15 C.F.R. 738 (2007 Supp. No. 1) (commerce country chart), available at http://www.access.gpo.gov/bis/ear/pdf/738spir.pdf. 15 See 15 C.F.R. 736 (2007) (discussing the ten General Prohibitions under the EAR). 16 This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act. 8 U.S.C. 1324b(a)(3); 15 C.F.R. 734.2(b)(2)(ii) (2007). 17 The term building blocks of nanotechnology that is used in this paper is attributable to use of that term in an article by John Miller, K.J. Cho, and Michael D. McGehee. John Miller et al., A Realistic Assessment of the Commercialization of Nanotechnology: A Primer for Lawyers and Investors, 1 J. NANOTECHNOLOGY L. & BUS. 10, 12 (2004) ( We use the term building blocks to describe the nanomaterials that can be positioned and manipulated for a variety of different applications. ) NANOTECHNOLOGY LAW & BUSINESS SPRING 2008 57

Joiner Government. 18 The published results of the survey, which was conducted by the IRGC s Working Group on Nanotechnology, presents the responses of twelve participating countries. This was the first of a series of surveys undertaken by the IRGC in preparation for its project Nanotechnology Risk Governance. 19 Of the twelve countries participating in the survey, only the United States made reference to export controls on nanotechnology in its survey responses. While other countries may be considering the issue of placing export controls on nanotechnology and its building blocks and resulting products, there has not been much public discussion on the topic. The omission of any references to export controls in the responses of Canada, Chinese Taipei, France, Germany, Ireland, Italy, Japan (which filed two separate responses), PR China, South Korea, and the U.K. the other eleven survey respondents is telling and would seem to indicate that the issue of export restrictions has not taken the same priority in those countries as it has in the United States. The U.S. made three references to export controls in its survey response. The first two were in response to the question: Please provide an overview of your country s laws and regulations that apply directly, or could be applied to nanotechnology development. Please provide the name of the regulatory instrument, and briefly describe what it regulates (e.g. environmental impacts, worker safety, etc.) and how it applies to nanotechnology. The first U.S. reference to export regulations appears in a listing of the organizations with primary responsibility for implementing regulations and guidance in areas relevant to nanotechnology materials and products. The second to last on the list was DOC [Department of Commerce] (export/import regulations). The second reference specifically pertains to export controls and, interestingly, falls under the heading: The materials and products based on nanotechnology are regulated today within the existing network of statutes, regulations, rules, guidelines, and other voluntary activities. The response goes on to state that: Under NSET coordination, the EPA, FDA, CPSC, OSHA (Occupational Safety and Health Agency), NIOSH (National Institute for Occupational Safety and Health), NIST, USDA, Export Administration, and other agencies are reviewing existing rules and procedures to determine how to use the existing statutes and regulations to review products of nanotechnology, as these products are developed. Where new nanotechnology products differ from existing products and present unique concerns for the environment or public health, modification or extension of rules will be considered. This is particularly important for the new generations of nanoproducts including active nanostructures and nanosystems. These statements are in line with what U.S. export regulators have been and continue to do in practice. Existing controls are essentially being applied to new nanotechnology, its building blocks, and resulting products. It may come as a surprise to some involved with nanotechnology research and development and commercialization activities to learn that the U.S. Government is not merely considering placing export controls on nanotechnology, but rather, existing controls apply to certain types of nanomaterials, and may also apply to resulting products under either the CCL or the USML, depending on the technology or product. None of the terms nanotechnology, nanotubes, nanomaterials, nanostructures, or any other similar term appears anywhere in the entire ten categories (0-9) of the CCL. Nevertheless, existing provisions in the CCL may be viewed to control certain types of nanomaterials currently. For example, the CCL contains provisions that control the export of certain types of carbon fiber that may, depending upon the technical specifications of the nanostructures at issue, be construed to cover those structures. As 18 INTERNATIONAL RISK GOVERNANCE COUNCIL WORKING GROUP ON NANOTECHNOLOGY, INTERNATIONAL RISK GOVERNANCE COUNCIL, SURVEY ON NANOTECHNOLOGY GOVERNANCE: VOLUME A. THE ROLE OF GOVERNMENT (2005), available at http://www.nsf.gov/crssprgm/nano/reports/wgn06-0124.pdf. 19 The purpose of Project Nanotechnology Risk Governance is to address the need for adequate risk governance approaches at the national and international levels in the development of nanotechnology and nanoscale products. Id. at 5. 58 NANOTECHNOLOGY LAW & BUSINESS Volume 5 No. 1

Dual-Use Export Controls on Nanotechnology fibers made from or with nanomaterials reach longer lengths such provisions may apply more clearly to such spun fibers. This interpretation is in keeping with the United States response to the 2005 IRGC survey: The materials and products based on nanotechnology are regulated today within the existing network of statutes, regulations, rules, guidelines, and other voluntary activities. Other building blocks of nanotechnology may also be controlled for export. For example, existing provisions covering certain metal alloys, metal alloy powders and alloyed materials, could be interpreted to cover certain nanowires made from any of the listed metals if the same interpretive principle applied to carbon fibers was applied to metallic nanowires. Export controls on items built from or containing nanomaterials also depend upon whether an existing provision, not originally drafted with the intent to cover nanotechnology products, can be viewed to cover those items. Many of the current commercial applications of nanotechnology are not exportcontrolled because the end item that incorporates nanotechnology is not itself a listed, dual-use item. For example, stain resistant pants that incorporate nanotechnology in certain types of coatings would not be controlled for export because pants are not a dual-use item. On the other hand, if those pants were made with so-called smart fabrics that are in development and which, it is hoped, would be capable of altering their physical properties based on their surroundings, it may likely be considered exportcontrolled. Whether the U.S. Government would consider these as dual-use items under the jurisdiction of the Commerce Department, or as defense articles under the jurisdiction of the State Department would likely have to be the result of a CJ ruling. Because classifications and other export control decisions are not published it is possible that such rulings have already been issued but are not (and may never be) publicly available. III. EXPORT COMPLIANCE GUIDANCE FOR COMPANIES, UNIVERSITIES, AND RESEARCH INSTITUTIONS WORKING WITH NANOTECHNOLOGY All companies, universities, and research institutions who are working on development and applications of nanotechnology should review their activities to determine if they are subject to U.S. export controls and, if so, implement a program to ensure compliance with export controls. 1. Subject to the Export Administration Regulations The first step is to determine if your products, information, or activities are subject to the EAR. Publicly available technology that (i) is already published or will be published; or (ii) arises during, or results from, fundamental research, is not subject to the EAR. 20 Though this second, so-called fundamental research exemption has been heavily relied upon by universities and research institutions, it is important to carefully review the applicability of this exemption before concluding that it applies to your technology. Information is published when it becomes generally accessible to the public in any form, including publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution. 21 Information is also considered published for purposes of the EAR when it is made readily available at a library open to the public or at a university library, when it is included in patents and 20 21 15 C.F.R. 734.3(b)(3) (2007). 15 C.F.R. 734.7(a)(1) (2007). For further information and illustrations, see 15 C.F.R. 734 (2008 Supp No. 1) (questions (A)(1) (A)(6)). NANOTECHNOLOGY LAW & BUSINESS SPRING 2008 59

Joiner open (published) patent applications available at any patent office, and when released at an open conference, meeting, seminar, trade show, or other open gathering. 22 Research that qualifies as fundamental research is also not subject to the EAR. Fundamental research is basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. 23 Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons or specific national security reasons as defined in the EAR. 24 There are various guidelines for different institutional contexts, including university-based research, research at federal agencies or Federally Funded Research and Development Centers, corporate research, and research based elsewhere. 25 Research conducted by scientists or engineers working for a business entity is considered fundamental research at such time and to the extent that the researchers are free to make scientific and technical information resulting from the research publicly available without restriction or delay based on proprietary concerns or specific national security controls. 26 If research is funded by the U.S. Government and specific national security controls are agreed on to protect information resulting from the research, the public availability exemption will not apply to any export or re-export of such information in violation of export controls. 27 Therefore, it is critical that the applicable contract for any governmentsponsored research be carefully reviewed for restrictions to protect information resulting from the research before concluding that the fundamental research exemption is applicable. For many companies and institutions, the limitations on the applicability of the fundamental research exemption will preclude those organizations from relying on it because there are limitations on publication for proprietary reasons. No matter the type of organization, it is important to carefully review and make a reasoned determination as to whether or not one or more exemptions applies to your activities. Finally, and perhaps most importantly, that review and conclusion, including the reasoning behind the conclusion, should be documented and maintained. 2. Export License Requirements If your items are subject to the EAR, the next step is to determine if an export license is required by first classifying your items on the CCL as discussed above. If your item is not on the CCL, it is known as EAR99. 28 Generally, EAR99 items do not require an export license. 29 Once the item is classified, the other steps regarding reference to the Commerce Country Chart discussed above can be followed to determine if the proposed transaction requires an export license. It is important to keep the deemed export rule in mind when classifying items on the export control lists. Items includes technology and, when technology is released to a foreign national in the United States, it is deemed to be an export to the home country of the foreign national. If an export license would be required to export the technology to the foreign national s home country, then a deemed export license may be required prior to releasing technology to the foreign national in the United States (a deemed export), or abroad (a deemed reexport). 22 23 24 25 26 27 28 15 C.F.R. 734.7(a)(2)-(4) (2007). 15 C.F.R. 734.8(a) (2007). Id. 15 C.F.R. 734.8 (2007). 15 C.F.R. 734.8(d)(1) (2007). 15 C.F.R. 734.11 (2007). 15 C.F.R. 734.3(4)(c) (2007) ( For ease of reference and classification purposes, items subject to the EAR which are not listed on the CCL are designated as EAR99. ). 29 As mentioned above, the other General Prohibitions must also be consulted to determine if an export or reexport license is required. See 15 C.F.R. 736 (2007). 60 NANOTECHNOLOGY LAW & BUSINESS Volume 5 No. 1

Dual-Use Export Controls on Nanotechnology 3. Key Elements of an Export Compliance Program While there are a number of different steps and approaches to compliance programs, four key traits of any successful export compliance program are: An Export Compliance Policy Statement Export Compliance Procedures Education/Training on Export Controls and on the Procedures Audit or Self-Review A compliance policy statement, which some companies issue as a stand-alone policy and others incorporate with other company policies, is a general statement from the management that the company is committed to compliance with export controls and expects employees to do their part to ensure compliance. It typically provides a general explanation as to what export controls are, and provides the name and contact information of the company s designated Export Compliance Manager to whom any questions or concerns may be directed. Export compliance procedures implement the policy by putting controls in place around sensitive or controlled products, software or technology. Compliance procedures should include a flowchart or checklist that is practical, and that will result in the creation of a record that compliance steps were taken to ensure that a transaction complied prior to proceeding. The procedures also should include a recordkeeping policy with respect to export control documents. Education or training for employees, researchers, and others who will be expected to comply with the procedures is critical to ensure understanding of the restrictions, why they are important, and how to proceed with export transactions in a way that complies with export regulations. Finally, an internal audit or self-review process is the means by which organizations determine if the system is working. It also affords the opportunity to make voluntary self-disclosures of any violations that are identified, which typically result in mitigated fines for disclosing companies. There is no one size fits all export compliance program. Risk areas should be identified and targeted and multiple factors taken into consideration to determine the breadth and depth of any compliance program. In some instances, a one-page checklist may be sufficient. In others, a more thorough set of operating procedures for various departments or individuals is necessary. No matter what the level of complexity or simplicity, a written procedure of some sort is important to demonstrate that the organization has reviewed the applicability of export controls to its products, software and technology, and ensure that proper controls are put in place to prevent violations from occurring. IV. CONCLUSION In conclusion, a multilateral approach to export regulation of nanotechnology would arguably be more effective than a unilateral approach and would better serve the national security and economic interests of the United States. The current approach of the U.S. is to apply existing controls to new nanomaterials and nanotechnology-based products. Changes to, or published interpretive guidance regarding the existing controls are needed in order to clarify which materials and products are subject to controls. A number of technical advisory committees, which include members of the private sector, provide advice on the technical parameters for export controls on certain commodities, materials, and technical data to the U.S. Department of Commerce. A Composites Working Group was recently formed NANOTECHNOLOGY LAW & BUSINESS SPRING 2008 61

Joiner to address export controls on nanotechnology building blocks and products. 30 This may result in recommended changes or additions to the existing CCL or other EAR provisions, or other written guidance regarding nanostructures in the future. 31 All companies, universities, research laboratories, and others involved in nanotechnology research and development, commercialization and sales would be well-served to take steps to incorporate export compliance into their overall compliance programs. 30 Composites Working Group Seeks Volunteers, COMPOSITESWORLD.COM WEEKLY, Dec. 18, 2007, http://www.compositesworld.com/hpc/issues/2008/january/1124041. 31 Bureau of Industry and Security Technical Advisory Committees, U.S. Dept. Commerce, Notice of Partially Closed Meeting of the Materials Technical Advisory Committee (Oct. 11, 2007), available at http://tac.bis.doc.gov/2007/1011107mtacmtg.htm (second agenda item is Presentation on Nanostructures and Discussion ). 62 NANOTECHNOLOGY LAW & BUSINESS Volume 5 No. 1