The United States imposes export controls to protect national security interests and promote foreign policy objectives related to dual-use goods and less-sensitive military items through implementation of the Export Administration Regulations (EAR) (15 CFR Parts 730 – 774). The Bureau of Industry and Security (BIS) is comprised of two elements: Export Administration (EA), which is responsible for processing license applications, counselling exporters, and drafting and publishing changes to the EAR; and Export Enforcement (EE), which is responsible for compliance monitoring and enforcement of the EAR. BIS works closely with U.S. embassies, foreign governments, industry, and trade associations to ensure that exports from the United States of items subject to the EAR comply with the regulations. BIS officials conduct site visits, known as End-Use Checks (EUCs), globally with end-users, consignees, and/or other parties to transactions involving items subject to the EAR to verify compliance. As regulations are regularly updated, it is important for companies to stay abreast of changes to the EAR.
An EUC is an on-site verification of a non-U.S. party to a transaction to determine whether the party is a reliable recipient of items subject to the EAR. EUCs are conducted as part of BIS’s licensing process, as well as its compliance program, to determine if items were exported in accordance with a valid BIS authorization or otherwise consistent with the EAR. Specifically, an EUC verifies the bona fides of transactions subject to the EAR, to include confirming the legitimacy and reliability of the end use and end user; monitoring compliance with license conditions; and ensuring items are used, re-exported or transferred (in-country) in accordance with the EAR. These checks might be completed prior to the export of items pursuant to a BIS export license in the form of a Pre-License Check (PLC) or following an export from the U.S. during a Post-Shipment Verification (PSV), regardless of whether or not a BIS license was required.
BIS officials rely on EUCs to safeguard items subject to the EAR from diversion to unauthorized end uses/users and destinations. The verification of a foreign party’s reliability facilitates future trade, including pursuant to BIS license reviews. If BIS is unable to verify the reliability of the company or is prevented from accomplishing an EUC, the company may receive, for example, more regulatory scrutiny during license application reviews or be designated on BIS’s Unverified List or Entity List, as applicable.
BIS has developed a list of “red flags”, or warning signs, and compiled “Know Your Customer” guidance intended to aid exporters in identifying possible violations of the EAR. Both of these resources are publicly available, and their dissemination to industry members is highly encouraged to help promote EAR compliance.
BIS also provides a variety of training sessions to U.S. exporters throughout the year. These sessions range from one to two-day seminars that focus on the basics of exporting to coverage of more advanced, industry specific topics. Interested parties can check a list of upcoming seminars and webinars or reference BIS provided online training. BIS’s Export Control Officers (ECOs) located at U.S. embassies and consulates in seven overseas locations also conduct outreach to raise awareness of reexport control requirements with foreign business communities.
BIS and the EAR regulate transactions involving the export of “dual-use” and less-sensitive military items (commodities, software and technology) as well as some U.S. person activities. For advice and regulatory requirements on items under the export control jurisdiction of other U.S. Government agencies, exporters should consult the other U.S. Government agencies. For example, the U.S. Department of State’s Directorate of Defense Trade Controls has authority over the defense articles and services that are not subject to the EAR. A list of other agencies involved in export control can be found on the BIS website and in Supplement No. 3 to Part 730 of the EAR.
The Consolidated Screening List (CSL) is a list of parties for which the United States Government maintains restrictions on certain exports, reexports or transfers of items. The CSL consolidates eleven export screening lists of the Departments of Commerce, State and the Treasury into a single data feed as an aid to industry in conducting electronic screens of parties to regulated transactions. Exporters should determine the export requirements specific to their proposed transaction by classifying their items prior to export and reviewing the EAR’s requirements specific to the item(s) and the proposed end use and end user, as well as consulting the CSL to determine if any parties to the transaction may be subject to specific license requirements.
Assistance is available from BIS by calling one of the following numbers:
- (202) 482-4811 - Outreach and Educational Services Division (located in Washington, DC – open Monday-Friday, 8:30 am-5:00 pm ET);
- (949) 660-0144 - Western Regional Office (located in Irvine, CA – open Monday-Friday, 8:00 am-5:00 pm PT); or
- (408) 998-8806 - Northern California branch (located in San Jose, CA – open Monday-Friday, 8:00am-5:00 pm PT).
You may also e-mail your inquiry to the Export Counseling Division of the Office of Exporter Services at ECDOEXS@bis.doc.gov.
Contact information for BIS’s overseas ECOs can be found at: https://www.bis.doc.gov/index.php/enforcement/oea/eco
Under the Export Administration Regulations (EAR) (15 C.F.R. Parts 730 – 774), a license is required to export, reexport, or transfer (in-country) certain controlled items to end users in the PRC. See the Commerce Control List in Supplement No. 1 to Part 774 of the EAR for item-specific information. U.S. exporters are required to obtain an End-User Statement from the PRC’s Ministry of Commerce (MOFCOM) for license applications involving items on the Commerce Control List (CCL) valued over $50,000. In certain circumstances, an End-User Statement may be required for transactions of a lower dollar value. (15 C.F.R. § 748.10). U.S. exporters also must provide the Export Control Classification Number (ECCN) for any CCL export destined to China in its Automated Export System filing, regardless of whether a license is required for export.
Generally, the licensing policy for the PRC is to approve items for civil end use to civil end users. In addition to the license requirements for items specified on the CCL, there are additional restrictions on items listed in Supplement No. 2 to Part 744 of the EAR if you have knowledge that those items are intended, entirely or in part, for a military end user or end use. In addition, a license is required for any item subject to the EAR if you have knowledge that the items are intended, entirely or in part, for a military-intelligence end use or end user (MIEU), or if a U.S. person, wherever located, is providing any ‘support’ as defined in § 744.6(b) to an MIEU. Similarly, there are licensing requirements for any item subject to the EAR where you have knowledge that the item will be used for certain weapons of mass destruction- (WMD) related end uses, or if a U.S. person, wherever located, is providing any ‘support’ as defined in § 744.6(b) for certain WMD end uses. These license applications generally are reviewed with a presumption of denial. See Parts 742 and 744 of the EAR for additional license review policies and end use and end user controls. Additional party-based license requirements also exist and generally apply to all items subject to the EAR; these parties are included on the U.S. Government Consolidated Screening List.
Exporters are urged to check lists identifying specific parties (persons, companies, and entities) that are under U.S. government sanctions or for whom export licenses or other authorization may be required. Information on these lists, which include the Entity List, Denied Persons List, Unverified List, Military End-User List, Specially Designated Nationals and Blocked Persons List, and Debarred List, is available on the BIS website. Exporters who engage in unauthorized transactions with listed parties may themselves become subject to administrative and/or criminal penalties.
Entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entity has been involved, is involved, or poses a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such entities may be added to the Entity List. Inclusion on BIS’s Entity List creates a license requirement for the export of items subject to the EAR to listed parties supplemental to those elsewhere in the EAR. Exports to listed parties generally require a license regardless of the commodity classification (EAR99 or under an ECCN). Specific license requirements are included within the party’s Entity List entry. For example, a listing may indicate a license requirement for only those items on the CCL or for only specified ECCNs. In recent years, the additions of Chinese entities on the Entity List have been predicated upon a determination that those entities have been involved in prohibited military end use activities, diverted EAR items to embargoed destinations, enabled human rights violations in the Xinjiang Uyghur Autonomous Region (XUAR) or against people from that region, or facilitated military activities in the South China Sea, amongst other reasons.
On July 13, 2021, the U.S. Department of State, alongside the U.S. Department of the Treasury, the U.S. Department of Commerce, the U.S. Department of Homeland Security, the Office of the U.S. Trade Representative, and the U.S. Department of Labor issued an updated Xinjiang Supply Chain Business Advisory to highlight the heightened risks for businesses with supply chain and investment links to Xinjiang, given the entities’ complicity in forced labor and other human rights abuses there and throughout China: https://www.state.gov/xinjiang-supply-chain-business-advisory/. Importers should also be aware of the Uyghur Forced Labor Prevention Act(UFLPA), signed into law by President Biden on December 23, 2021. It establishes a rebuttable presumption that the importation of any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region, or produced by certain entities, is prohibited from entry to the United States. The presumption applies unless the Commissioner of U.S. Customs and Border Protection (CBP) determines that the importer of record has complied with specified conditions and, by clear and convincing evidence, that the goods, wares, articles, or merchandise were not produced using forced labor.
Consult the updated Xinjiang Supply Chain Business advisory for additional information relevant to conducting business within the XUAR.
Validated End-User Program
End users in China can apply for the Validated End-User (VEU) program. This allows end users who have an established track record of exclusive engagement in appropriate end-use activities to receive exports of specified items for civil end uses without the need for their suppliers to first obtain individual export or reexport licenses. Interested companies can apply by submitting a request for an advisory opinion to BIS, as described in Section 748.15 of the EAR.
U.S. exporters should consult the EAR for information on how export license requirements may apply to the sale of their items to China. If necessary, a commodity classification request may be submitted in order to determine how an item is controlled (i.e., the Export Control Classification Number (ECCN)). Exporters may also request a written advisory opinion from BIS about the application of the EAR’s end-use- and end-user-based licensing requirements. Information on commodity classifications, advisory opinions, and export licenses can be obtained through the BIS website at www.bis.doc.gov.
Additional information about the export controls administered by BIS may be obtained from BIS’s website, or by contacting one of BIS’s counseling desks or BIS Export Control Officers at the U.S. Commercial Service, U.S. Embassy Beijing.
BIS Export Control Officers (Beijing, China):
Tel: (86) (10) 8531-3301
Tel: (86) (10) 8531-4484
Executive Orders or Regulatory Actions Impacting Exports or Re-exports to China
In 1990, the U.S. Congress passed P.L. 101-246, Title IX of which is commonly referred to as the “Tiananmen Square Sanctions.” Among other things, this law restricts the U.S. licensing of exports and re-exports of crime control and crime detection equipment and instruments listed in the EAR to China, as well as the licensing of defense articles and defense services subject to the International Traffic in Arms Regulations (ITAR). These restrictions apply regardless of the end-user in the PRC. The prohibition on exports of munitions to the PRC remains in place.
In addition, although foreign-made items incorporating less than 25% controlled U.S.-origin content are generally not subject to the EAR for purposes of export or reexport to the PRC, there is no de minimis for exports to China of foreign-made items incorporating U.S.-origin 600-series and 9x515 content. Items classified under these ECCNs were previously listed on the USML and cannot be exported to China without prior authorization.
The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) expands the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS) to address growing national security concerns over foreign exploitation of specific investment structures, which traditionally have fallen outside of CFIUS jurisdiction. While the PRC is not explicitly mentioned in FIRRMA, this can impact PRC investment in the United States. CFIUS has greater visibility of PRC investment into the United States, which in turn will lead to heightened scrutiny of potential PRC investments in areas related to critical technologies, critical infrastructure, businesses with sensitive personal data, and certain types of real estate transaction.
Other U.S. agencies regulate exports of more specialized items. For example, the U.S. Department of State’s Directorate of Defense Trade Controls administers U.S. export controls covering defense articles and defense services that appear on the U.S. Munitions List under the ITAR. Information on U.S. Department of State export licensing procedures, the ITAR, and the Arms Export Control Act can be found at Tel: (202) 663-1282.
The point of contact for U.S. Department of State licensing issues at the U.S. Embassy Beijing is the Economic Section, Tel: (86) (10) 8531-3000, Fax: (86) (10) 8531-4949.
The Department of Energy, Nuclear Regulatory Commission, FDA, and other agencies may also control and licenses exports to China.