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Foreign Policy-Based Export Controls Subject of Annual BIS Review

Thursday, September 04, 2014
Sandler, Travis & Rosenberg Trade Report

The Bureau of Industry and Security is seeking comments by Oct. 6 for its annual review of whether the foreign policy-based export controls in the Export Administration Regulations should be modified, rescinded or extended from January 2015 to January 2016.

Coverage of Controls. Foreign-policy based export controls apply to a range of countries, items, activities and persons, including the following.

- entities acting contrary to U.S. national security or foreign policy interests

- certain general purpose microprocessors for military end-uses and military end-users

- hot section technology for the development, production or overhaul of commercial aircraft engines, components and systems

- encryption items

- crime control and detection items

- specially designed implements of torture

- certain firearms and related items

- regional stability items

- equipment and related technical data used in the design, development, production or use of certain rocket systems and unmanned air vehicles

- chemical precursors and biological agents, associated equipment, technical data, and software

- various chemicals included on the list of those controlled pursuant to the Chemical Weapons Convention

- communication intercepting devices, software and technology

- nuclear propulsion

- exports and reexports to certain persons designated as proliferators of weapons of mass destruction

- certain cameras to be used by military end-users or incorporated into a military commodity

- countries designated as supporters of acts of international terrorism

- certain entities in Russia

- individual terrorists and terrorist organizations

- certain persons designated by Executive Order 13315 (“Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members”)

- certain sanctioned entities

- embargoed countries

- U.S. and UN arms embargoes

In addition, the EAR impose foreign policy-based export controls on certain nuclear-related commodities, technology, end-uses and end-users.

 

Criteria for Determining Whether to Continue Controls. Among the criteria considered in determining whether to extend U.S. foreign policy-based export controls are the following.

- the likelihood that such controls will achieve their intended foreign policy purposes in light of other factors, including the availability from other countries of the goods, software or technology proposed for such controls

- whether the foreign policy objective of such controls can be achieved through negotiations or other alternative means

- the compatibility of the controls with U.S. foreign policy objectives and overall U.S. policy toward the country subject to the controls

- whether the reaction of other countries to the extension of such controls is not likely to render the controls ineffective in achieving the intended foreign policy objective or be counterproductive to U.S. foreign policy interests

- the comparative benefits to U.S. foreign policy objectives versus the effect of the controls on U.S. export performance, the competitive position of the U.S. in the international economy and the international reputation of the U.S. as a supplier of goods and technology

- the ability of the U.S. to effectively enforce the controls

- the economic impact of proliferation controls

Industry Information Sought. BIS is interested in industry information relating to the following.

- the effect of foreign policy-based export controls on sales of U.S. products to third countries (i.e., those not targeted by sanctions), including the views of foreign purchasers or prospective customers regarding these controls

- controls maintained by U.S. trade partners (e.g., the extent to which they have similar controls on goods and technology on a worldwide basis or to specific destinations)

- licensing policies or practices by U.S foreign trade partners that are similar to U.S. foreign policy-based export controls, including license review criteria, use of conditions and requirements for pre- and post-shipment verifications (preferably supported by examples of approvals, denials and foreign regulations)

- revisions to foreign policy-based export controls that would bring them more into line with multilateral practice

- actions that would make multilateral controls more effective

- the effect of foreign policy-based export controls on trade or acquisitions by the intended targets of the controls

- the effect of foreign policy-based export controls on overall trade at the level of individual industrial sectors

- how to measure the effect of foreign policy-based export controls on trade

- the use of foreign policy-based export controls on targeted countries, entities or individuals

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