HWG Regulatory Advisory: New BIS License Notice

December 15, 2014

Through a December 8, 2014 email list posting and website update, the Department of Commerce Bureau of Industry and Security (“BIS”) announced that all export licenses henceforth issued by it would contain a new notice.  Notwithstanding the informal and irregular means of announcement (e.g., no Federal Register publication, no proposal for comment, no deferral of effective date), this Notice is one that could have a significant impact on companies involved in export activity.  The purpose of this HWG Regulatory Advisory is to provide an alert to this easy to overlook development, rather than to provide detailed analysis of it.

              This Notice consists of two elements—the list serve announcement linked above and the new content added to the Frequently Asked Questions section of the BIS website linked below.

License Notice Text

              Unless limited by a condition set forth below, the export, reexport or transfer (in-country) authorized by this license is for the item(s), end-use(s), and parties described in the license application and any letters of explanation. The applicant is responsible for informing the other parties identified on the license, such as ultimate consignees and end-users, of the license’s scope and of the specific conditions applicable to them. BIS has granted this license in reliance on representations the applicant made in the license application, letters of explanation, and other documents submitted.

1.      FAQs

            The FAQs regarding the new language that BIS has added to its website in conjunction with the Notice run over two pages.  HWG urges readers to review these and to consider how their practices may be affected. 

2.      Some Impacts and Issues

            The “applicant” is responsible for informing other parties “of the license’s scope and of the specific conditions applicable to them.”  What would be involved in determining “applicable” conditions?  Is the “scope” anything different from what is expressed in the license?

            The language of the new license condition appears to be designed to require BIS authorization for any in-country transfer of the licensed items.  The basic regulatory authority in the Export Administration Regulations is to control “export and re-export,” and “re-export” is defined to mean shipment or transmission from one foreign country to another.  BIS has previously asserted control over some in-country transfers in specified circumstances, but the Notice appears to be a much broader reach that may well concern foreign customers and governments.

3.      The BIS Rationale

            One stated aim of the Notice is to eliminate redundant license conditions that restate provisions of the regulations the license and that may risk giving rise to an inference that actions not expressly barred by a stated condition are permitted.  This may be a valid concern in some cases, but surely it is within the ability of the licensing agencies that have allowed the proliferation of unnecessary conditions to eliminate them going forward without placing new and uncertain burdens on the businesses concerned.

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For more information, please contact Cecil Hunt by telephone at +1 202 730 1309 or by e-mail at chunt@hwglaw.com,or contact the HWG lawyer with whom you regularly work.

This client advisory is not intended to convey legal advice.  It is circulated to our clients as a convenience and is not intended to reflect or create an attorney-client relationship as to its subject matter.

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