The Bureau of Industry and Security is issuing a technical correction to the Export Administration Regulations and clarifying its rules that cover releases of certain software, the agency said in a final rule issued last week. The rule, effective Sept. 18, clarifies an “ambiguity” in the EAR and notes that releases of software include both source code and object code “for purposes of transfer of access information.” The change will “eliminate potential uncertainty that the § 734.15 definition of 'release' limits § 734.19 to only controlling transfers of access information that release source code, rather than both source code and object code,” BIS said.
Republicans are asking the Biden administration to strengthen export controls against Huawei and Semiconductor Manufacturing International Company after Huawei this month unveiled a new smartphone that may have been made through means that violated U.S. export restrictions (see 2309120005). They said both technology companies should be subject to “full blocking sanctions” and their executives should face criminal investigations, adding that the Commerce Department should revoke all of their existing license applications, add all their subsidiaries to the Entity List and take other measures to cut off a broad range of shipments to both firms.
The Bureau of Industry and Security should explore several changes to the Export Administration Regulations to better prevent exported technologies from being used for human rights violations, including by maintaining a regularly updated list of EAR99 items that are likely to be misused by authoritarian regimes, said Annie Boyajian, vice president for policy and advocacy for Freedom House. Boyajian also suggested BIS engage more with civil society groups, including by creating a formal mechanism that would allow those groups to inform the agency about new ways technologies are being misused.
The U.S. Census Bureau clarified who the ultimate consignee would be for certain scenarios, in a blog post on Sept. 7. The blog post includes a few scenarios wherein the Foreign Principal Party in Interest (FPPI) or foreign buyer is listed as the ultimate consignee, and two of those wherein "reseller/distributor" is listed as the Ultimate Consignee Type if they are reselling or distributing the goods.
The Bureau of Industry and Security is drafting a proposed rule to revise license exception Additional Permissive Reexports, which allows certain reexports of controlled U.S. items from U.S. allies, including those listed under Country Group A:1 of the Export Administration Regulations. BIS sent the rule for interagency review Sept. 1. The agency in 2020 proposed reducing the number of countries eligible for the license exception, but trade groups and companies said the move could damage U.S. competitiveness (see 2009220037).
The U.S. shouldn’t be targeting American companies that exclude foreign applicants for job openings if those policies are meant to protect American sensitive technologies, Sen. J.D. Vance, R-Ohio, said in a letter to DOJ. Vance’s letter came after DOJ in recent enforcement actions targeted both SpaceX and General Motors for using export control laws to justify restrictive hiring practices, highlighting the risks facing companies looking to fill positions that involve export-controlled items, Barnes & Thornburg said in a recent client alert.
The Bureau of Industry and Security will now be able to renew its temporary denial orders for one year instead of the previous maximum of 180 days, the agency said in a final rule. BIS said it can now request extended renewals of TDOs if it demonstrates the parties subject to the orders -- which generally suspend them from participating in transactions subject to the Export Administration Regulations -- have “engaged in a pattern of repeated, ongoing and/or continuous apparent violations of the EAR.”
The Bureau of Industry and Security sent a final rule for interagency review that would align its export controls with changes recently made by the multilateral Missile Technology Control Regime. The final rule, sent to the Office of Information and Regulatory Affairs Aug. 25, would revise the Export Administration Regulations with MTCR decisions from 2018, 2019, 2021 and 2022. The rule also would make revisions to the eligibility of one or more license exceptions.
A bill was introduced in the House that could lead to new export controls on genetic mapping technology and sanction entities in China and elsewhere involved in certain genetic mapping efforts. The bill would specifically direct the Commerce Department to deny licenses for those exporting these items to certain countries unless the exporter can submit documentation to the government "to demonstrate by clear and convincing evidence that, if the license is approved, the technology will not be used for human rights abuses or by an entity that has engaged in human rights abuses."
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