The U.S. Bureau of Industry and Security ("BIS") has issued a request for public comments regarding the effect of extending current foreign policy-based export controls for another year. 76 Federal Register 54,426 (Sept. 1, 2011).
Pursuant to Section 6 of the Export Administration Act of 1979,
as amended, the Export Administration Regulations ("EAR")
include certain foreign policy-based export controls. Such controls
require an annual extension, including a review by BIS, a request
for public comment and a related report to Congress.
U.S. foreign policy-based export controls apply to a variety of
items, persons and activities through the EAR's Commerce
Control List, end-user and end-use controls, as well as embargoes
and other special controls. Examples include:
- Certain general purpose microprocessors for "military
end-uses" and "military end-users." (§
744.17)
- Encryption items. (§ 742.15)
- Crime control and detection items. (§ 742.7)
- Certain sanctioned entities. (§ 744.20)
- Certain cameras used by military end-users or incorporated into
a military commodity. (§ 744.9)
- Hot section technology for the development, production, or overhaul of commercial aircraft engines, components and systems. (§ 742.14)
Criteria used by BIS to determine whether to extend foreign policy-based export controls include, among others:
- The likelihood that such controls will achieve their intended
foreign policy purposes in light of other factors, such as foreign
availability of the applicable item.
- Whether such objectives can be achieved through negotiation or
other means.
- Whether the reaction of other countries would render the
controls ineffective in meeting the foreign policy goal or be
counterproductive to U.S. foreign policy interests.
- The benefits to U.S. foreign policy objectives when compared with the effect on U.S. exports and competitiveness in international markets.
BIS indicated several areas in which it is interested in receiving information on the economic impact of foreign policy-based controls including sales of U.S. products to other countries (those not subject to sanctions), controls maintained by U.S. trade partners including licensing policies and practices, and the effect of such controls on overall trade at the industrial sector level.
In light of all the recent changes (including proposed rules) in U.S. export controls resulting from the President's Export Control Reform Initiative announced in 2009, this request provides a good opportunity to voice any concerns you may have with regard to foreign policy-based controls and their impact on your business and/or industry sector. Comments must be received by BIS by October 3, 2011.
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