On September 7, 2017, the Bureau of Industry and Security (BIS) published in the Federal Register a request for comments [Docket No. 170816771-7771-01] on the effect of existing foreign policy-based export controls in the Export Administration Regulations (EAR). Section 6 of the Export Administration Act requires BIS to consult with industry on the effect of such controls and to report the results of the consultations to Congress. BIS is conducting the consultations through this request for public comments. Comments from all interested persons are welcome and will help BIS determine whether its foreign policy-based export controls should be continued for another year. All comments will be made available for public inspection and copying and included in a report to be submitted to Congress.
Foreign policy-based controls in the EAR are implemented pursuant to section 6 of the Export Administration Act of 1979, as amended, (50 U.S.C. §§ 4601-4623 (Supp. III 2015)) (EAA). The current foreign policy-based export controls maintained by the BIS are set forth in the EAR (15 C.F.R. parts 730-774), including in parts 742 (CCL Based Controls), 744 (End-User and End-Use Based Controls) and 746 (Embargoes and Other Special Controls). These controls apply to a range of countries, items, activities and persons, including:
- Chemical precursors and biological agents, associated equipment, technical data, and software related to the production of chemical and biological agents (§§ 742.2 and 744.4) and various chemicals included on the list of those chemicals controlled pursuant to the Chemical Weapons Convention (§ 742.18);
- Equipment and related technical data used in the design, development, production, or use of certain rocket systems and unmanned air vehicles (§§ 742.5 and 744.3);
- Regional stability (§ 742.6);
- Crime control and detection items (§ 742.7);
- Countries designated as Supporters of Acts of International Terrorism (§§ 742.8, 742.9, 742.10, 742.19, 746.4, 746.7, and 746.9);
- Specially designed implements of torture (§ 742.11);
- Communication intercepting devices, software and technology (§ 742.13);
- Significant items (SI): Hot section technology for the development, production, or
- overhaul of commercial aircraft engines, components, and systems (§ 742.14);
- Encryption items (§ 742.15);
- Certain firearms and related items based on the Organization of American States Model Regulations for the Control of the International Movement of Firearms, their Parts and Components and Ammunition included within the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (§ 742.17);
- Maritime nuclear propulsion (§ 744.5);
- Certain foreign aircraft and vessels (§ 744.7);
- Certain persons designated as proliferators of weapons of mass destruction (§ 744.8);
- Certain cameras to be used by military end-users or incorporated into a military commodity (§ 744.9);
- Certain entities in Russia (§ 744.10);
- Individual terrorists and terrorist organizations (§§ 744.12, 744.13 and
- Entities acting contrary to the national security or foreign policy interests of the United States (§ 744.11);
- Certain general purpose microprocessors for ‘‘military end-uses’’ and ‘‘military endusers’’ (§ 744.17);
- Certain persons designated by Executive Order 13315 (‘‘Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members’’) (§ 744.18);
- Certain sanctioned entities (§ 744.20);
- Embargoed countries (Part 746);
- U.S. and U.N. arms embargoes (§ 746.1 and Country Group D:5 of Supplement No. 1 to Part 740); and
- Industry sectors and regions related to U.S. policy towards Russia (§ 746.5).
In addition, the EAR impose foreign policy-based export controls on certain nuclear related commodities, technology, end-uses and end-users (§§ 742.3 and 744.2), in part, implementing section 309(c) of the Nuclear Non-Proliferation Act (42 U.S.C. 2139a).
Under the provisions of section 6 of the EAA, export controls maintained for foreign policy purposes must be extended annually. Section 6 of the EAA requires a report to Congress when foreign policy-based export controls are extended. The EAA expired on August 20, 2001. Executive Order 13222 of August 17, 2001 (3 C.F.R., 2001 Comp., p. 783 (2002)), as amended by Executive Order 13637 of March 8, 2013 (3 C.F.R., 2013 Comp., p. 223 (2014), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017, (82 Fed. Reg. 39005 (August 16, 2017)) continues the EAR and, to the extent permitted by law, the provisions of the EAA, in effect under the International Emergency Economic Powers Act (50 U.S.C. § 1701, et seq. (2012)). The Department of Commerce, as appropriate, follows the provisions of section 6 of the EAA by reviewing its foreign policy-based export controls, conducting consultations with industry on such controls through public comments and preparing a report to be submitted to Congress. In January 2017, the Secretary of Commerce, on the recommendation of the Secretary of State, extended for one year all foreign policy-based export controls then in effect. BIS is now soliciting public comment on the effects of extending the existing foreign policy-based export controls from January 2018 to January 2019.
The criteria considered in determining whether to extend U.S. foreign policy-based export controls is set forth in the Federal Register document. BIS is particularly interested in receiving comments on the economic impact of proliferation controls. Parties submitting comments are asked to be as specific as possible.
Comments must be received by October 10, 2017.