On January 23, 2015, the Bureau of Industry and Security (BIS) at the US Commerce Department issued a final rule that amended the Export Administration Regulations (EAR) in order to further implement the US-India bilateral understanding that was announced in a Joint Statement by President Obama and Prime Minister Singh on November 8, 2010. The amendment removes licensing requirements for export to India of certain items controlled under the EAR for crime control and regional stability reasons.
In January 2011, BIS published a rule implementing the US commitment to reform its export control regulations and policies with respect to India. As summarized in our previous advisory, BIS removed certain Indian defense and space related entities from the Entity List. Exporters therefore no longer needed to obtain a separate or additional license beyond those otherwise required under the EAR to trade with those entities. Furthermore, BIS also removed India from EAR Country Groups that impose restrictions for reasons of nuclear proliferation (Country Group D:2), chemical and biological nonproliferation (D:3), and missile technology (D:4). As a result, license requirements were eased for exports related to certain nuclear-related activities, medical products containing certain pathogens and toxins, and items related to certain rocket systems and unmanned aerial vehicle end uses.
New Rule Relaxing Export Restrictions
BIS has made additional changes to the EAR that further ease licensing requirements for certain exports to India.
First, BIS has removed India from Crime Controls (CC) columns 1 and 3, and from Regional Stability (RS) column 2, on the Commerce Country Chart. This reflects BIS’s determination that the Government of India has taken appropriate steps to ensure that items controlled for CC and RS reasons will not be re-exported from India without a license. As a result, companies do not need a license to export to India items controlled for CC columns 1 and 3 reasons, and RS column 2 reasons. However, it should be noted that:
- There is still a license requirement for items under ECCNs 6A003.b.4.b (certain imaging cameras) and 9A515.e (certain microelectronic circuits specifically designed for defense articles) that are controlled for RS column 2 reasons.
- BIS has not removed India from RS column 1 controls in the Commerce Country Chart. Therefore, a license is still required to export or reexport to India an item controlled for RS column 1 reasons, unless an exception applies.
Furthermore, while BIS has removed India from CC columns 1 and 3 and RS column 2, there are new export clearance requirements related to the export of CC- and RS-controlled items to India. First, exporters are required to file a record of export in the Automated Export System (AES) when exporting such items to India. Second, exporters are required to include a notation on export control documents such as the invoice and bill of lading that accompanies the shipment from the US indicating: (i) the item’s ECCN, (ii) that the items are destined for India, and (iii) that any re-export of the items may require authorization from the US Department of Commerce.
BIS also made a few amendments to the EAR to conform these changes to licensing requirements for items controlled for CC columns 1 and 3 reasons. Of particular note is that BIS added India to paragraph (a)(4)(i) of Part 740.2, excluding India from restrictions on the use of all license exceptions for exports of items controlled for CC reasons. Since there are no longer any CC controls on exports to India, this conforming amendment permits the use of an applicable licensing exception for items controlled for CC and any other reason. India now joins a group of countries that includes Australia, Japan, New Zealand and NATO member states for whom license exceptions may be available for CC controlled items.
The United States continues to liberalize US export controls for India. There have been several high-level diplomatic meetings between the two countries in recent months, including Prime Minister Modi’s visit to Washington on September of 2014, and President Obama’s recent visit to India. Leaders from both sides have emphasized the importance of the strategic global partnership between the two democracies. The United States supports India’s phased entry into the Nuclear Suppliers Group, the Missile Technology Control Regime, the Wassenaar Arrangement and the Australia Group. In light of India’s evolving role in strengthening global nonproliferation and export control regimes, the United States will likely continue to take incremental steps to reform its export controls regulations and policies for India.