By Tom Reynolds, Export Solutions

The Bureau of Industry and Security (BIS) has opened two requests for comment on different aspects of the EAR – one related to a proposed new license exception, and another seeking input on how to re-write portions of the Commerce Control List (CCL). Both requests stem from efforts to revise current policies in response to President Obama’s call for reforming U.S. export control regulations.

If it goes through, the new exception (tentatively called Strategic Trade Authorization – or “STA”) would allow exports, re-exports and transfers (in-country) of specific items to destinations that pose little risk of unauthorized use of those items. In particular, the STA exception would authorize export to 37 countries for specific items which are controlled for multiple reasons on the CCL; allow export to 2 countries for items which are less sensitive to national security; and allow export to 125 countries for less sensitive national security items destined for civil end-use.

Of course, a variety of “exceptions” apply before an exporter could claim the STA exception. (No one ever said exporting was easy!) Some of those conditions include:

  • Requirements for exporters to use a specific destination control statement when shipping their items under STA
  • The exception could not be claimed for embargoed countries, prohibited end uses, or proscribed end users
  • STA would not apply to items controlled for SS, SL, MT or CW reasons, or to ECCNs 0A981 and 0A893.
The other proposed changes open for comment involve helping BIS create more “positive” and definitive terminology on the CCL. This traces back to President Obama’s eventual goal of combining the two control lists (USML and CCL), and re-writing those lists to include more “bright line” or clearly-defined items.

To aid in this effort, BIS is seeking comments from industry to help make these revisions. Some of the feedback requested includes:

  • Suggestions to improve the wording of ECCNs
  • Recommendations for creating the proposed “tiered” structure to the CCL, which would tightly control items at the top tier, and which would contain lesser controls on items in the bottom tiers.
  • Input on BIS definitions for various phrases, like: “significant,” “substantial,” “almost exclusively available” and “grave threat to U.S. national security.” (The idea of nit-picking phrases like this has lawyers around the world jumping for joy!)
Before you start compiling all of your thoughts on what the EAR should/should not do, however, be sure to read the last section of the notice, which describes the types of comments BIS is not interested in receiving at this time.

Aside from that, it’s officially “open season” on comments and proposals! You have until Feb. 7 to give BIS your two cents. So, what do you think?

Tom Reynolds is the Vice President of Operations for Export Solutions, a consultancy firm which specializes in ITAR and EAR compliance.