This Guidance does not create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, organization, party, or witness in any administrative, civil, or criminal matter.
U.S. -EU Trade & Technology Council (TTC) Export Control Working Group
U.S. – EU TRADE & TECHNOLOGY COUNCIL STAKEHOLDER MEETING
Summary
October 27, 2021
The EU-U.S. Joint Stakeholder Outreach event – hosted by the European Commission DG TRADE in an online format – was attended by more than 200 participants from the EU and US and featured keynote speeches by EU and U.S. government representatives, followed by extensive open sessions with stakeholders’ contributions. The event was therefore an important opportunity for discussing priorities in the agenda of the Working Group on Export Controls with representatives from the industry and civil society. Comments and inputs showcased great interest and support for the Working Group, especially from industry associations and academic experts.
In opening remarks, EU representatives signaled a strong sense of engagement and hopes to enhance transatlantic cooperation as well as to reinforce the export control multilateral system.
The EU provided an update on its revised export control regulation 2021/821, with an emphasis on:
- New autonomous controls at the EU level to prevent cyber-surveillance items from contributing to human rights abuses.
- A framework for EU member states to trigger EU-wide controls for emerging technologies.
- Increased opportunities for stakeholder engagement through technical experts groups and dialogue with stakeholders and third countries.
EU representatives highlighted that export controls are just one aspect of a multifaceted security strategy, which must also include investment screening mechanisms and frameworks to prevent cyber exfiltration of controlled data.
US Department of Commerce called stakeholders’ attention to opportunities to comment on recently-published notices and rules, including those involving brain-control interface, License Exception Strategic Trade Authorization, and cybersecurity controls. BIS expressed a desire for increased engagement and information sharing with stakeholders, not only in terms of public comments on proposed regulations, but also on suspicious purchase inquiries and transactions of concern. The Department of State noted that export control regulations should maximize national security benefits while minimizing regulatory burdens by considering both the scope (range of items) and level (expansiveness of license requirements, availability of license exceptions) of controls.
Private sector stakeholders from the following organizations provided verbal input: Orgalim, European Semiconductor Industry Association (ESIA), U.S. Chamber of Commerce, Digital Europe, Intel, BusinessEurope, SIEPS, Danish Industry Association, Semiconductor Industry Association (SIA), Imperial College of London, ELMISystems, and DGAP (German Council on Foreign Relations). Collectively, they expressed views that:
- Export controls should be implemented on a multilateral, rather than unilateral, basis.
- Stakeholders would like to see further alignment of export controls’ policies in the US and the EU, while several participants advocated the adoption of well-balanced export control practices, that preserve security and do not hinder innovation
- The EU should consider lessons learned from the U.S. Export Control Reform initiative and determine whether the continued regulation of “600 series” items under the EU’s military, vice dual-use, export control framework places EU companies at a competitive disadvantage.
- The extraterritorial application of U.S. export controls creates regulatory burdens on European stakeholders and discourages European entities from collaborating with U.S. counterparts, creating incentives to avoid U.S. technology or, in some cases, hire U.S. persons (due to ITAR, EAR, and OFAC controls on certain activities of U.S. persons).
- The need to address the challenges associated with the fast pace of innovation and quickly evolving emerging technologies by developing a holistic approach that will protect and promote these technologies.
- The need for a common approach and understanding of the Wassenaar Arrangement Decontrol Notes.
- U.S. and EU licensing authorities should increase information sharing on license denials to ensure transactions rejected by export control authorities in one jurisdiction are not backfilled under export authorizations issued in another jurisdiction.
- The U.S. and the EU should clarify export control exemptions applicable to public domain information and fundamental research.
In concluding remarks, the U.S. and EU thanked the stakeholders for a productive and informative dialogue. The U.S. and EU expressed a need for continued engagement with stakeholders in order to address the changing landscape on the threats, emerging technologies, and the balance between multilateral export control regimes and bilateral engagements.
[1] BAFA directed participants to a brochure on its website setting forth the German interpretation of the EU’s new autonomous cyber-surveillance controls: https://www.bafa.de/SharedDocs/Kurzmeldungen/DE/Aussenwirtschaft/Ausfuhrkontrolle/20210816_eu-dual-use-vo_merkblaetter.html
This Guidance does not create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, organization, party, or witness in any administrative, civil, or criminal matter.
PROMOTING HUMAN RIGHTS AND DEMOCRACY
The Bureau of Industry and Security (BIS) is actively engaged in formulating, coordinating, and implementing various export controls to counter the use of items subject to the Export Administration Regulations (EAR) that could enable human rights abuses or repression of democracy throughout the world. These controls are a mix of list-based, end-user, and end-use controls, as well as specific licensing policies that allow review of transactions for concerns about human rights abuses and repression of democracy. The purpose of this page is to clarify to the exporting community that licensing decisions are based in part upon whether items may be used to enable abuses of human rights or repression of democracy including through censorship; surveillance; abusive genetic collection and analysis schemes; detention; excessive use of force; and forced labor.
Notably, BIS has taken singular action, as well as joint action in concert with interagency partners, in response to the People’s Republic of China (PRC) government’s brutal repression of the Uyghurs, Kazakhs, Kyrgyz, and members of other ethnic and religious minority groups in Xinjiang; denial of the autonomy and freedom of the people of Hong Kong; and to the overthrow of the democratically elected government of Burma by the military and security forces of that country.
Recent Updates
Biden Administration and International Partners Release Export Controls and Human Rights Initiative Code of Conduct
Press Release
March 30, 2023
Commerce Adds Eleven to Entity List for Human Rights Abuses and Reaffirms Protection of Human Rights as Critical U.S. Foreign Policy Objective
Press Release
March 30, 2023
BIS Actions
Expansion of Export Controls on Cambodia
December 2021
August 2021
Expansion of Export Controls on Burma
April 2021
March 2021
https://www.federalregister.gov/documents/2021/03/08/2021-04745/burma-implementation-of-sanctions
February 2021
https://www.federalregister.gov/documents/2021/02/18/2021-03350/burma-implementation-of-sanctions
Licensing Policy to Promote Respect for Human Rights (October 2020)
New Controls on Water Cannon Systems (October 2020)
Notice of Inquiry on Advanced Surveillance Systems and Other Items of Human Rights Concern (July 2020)
Addition of Entities Engaged in, or Enabling, Human Rights Abuses and Repressing Democracy to the Entity List
July 2021 (China)
July 2021 (Burma)
June 2021 (China)
March 2021 (Burma)
December 2020 (China)
July 2020 (China)
June 2020 (China)
October 2019 (China)
For additional information relating to the Entity List, and compliance with its prohibitions, please view the following webpage: https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/entity-list
Hong Kong: Tiananmen Square Sanctions
On December 23, 2020, pursuant to Executive Order 13936, the Bureau of Industry and Security published a regulatory amendment confirming that exports, reexports and transfers (in-country) to Hong Kong will be treated under the Export Administration Regulations as transactions destined for the People’s Republic of China (PRC or China). This action was taken in response to security measures imposed on Hong Kong by the government of China which fundamentally undermine Hong Kong’s autonomy. These measures have resulted in a suppression of democracy and increasing human rights violations in Hong Kong.
Additionally, Hong Kong’s loss of autonomy has increased the risk that sensitive U.S. items, including crime control and detection items, will be diverted to unauthorized end uses and end users in China. As a result, a licensing policy of denial for crime control and detection items pursuant to the Tiananmen Square Sanctions applies to Hong Kong.
This statutory requirement encompasses all items controlled under Sec. 742.7 of the EAR , identified by a Crime Control (“CC”) reason for control on the Commerce Control List.
Executive Order 13936
Removal of Hong Kong as a Separate Destination under the Export Administration Regulations
Tiananmen Square Sanctions
Sec. 902(a)(4) of Public Law 101-246 )
Interagency Actions
Burma Business Advisory (January 2022)
https://www.bis.doc.gov/index.php/documents/policy-guidance/2901-burma-advisory-20220126/file
Cambodia Business Advisory (November 2021)
https://www.state.gov/cambodia-business-advisory-on-high-risk-investments-and-interactions/
Xinjiang Supply Chain Business Advisory (July 2021)
https://www.state.gov/xinjiang-supply-chain-business-advisory/
Hong Kong Business Advisory (July 2021)
https://www.state.gov/wp-content/uploads/2021/07/HKBA-FOR-FINAL-RELEASE-16-JUL-21.pdf
Department of State Guidance on Implementing the UN Guiding Principles for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities (September 2020)
https://www.state.gov/wp-content/uploads/2020/09/DRL-Industry-Guidance-Project-FINAL-508.pdf
Faq
BIS issues guidance and FAQ on human rights, exports, and licensing
https://www.bis.doc.gov/index.php/documents/pdfs/3239-2023-bis-human-rights-faqs/file
Statement of Principles for
U.S.-India High Technology Commerce
During their November 2001 meeting in Washington D.C., Prime Minister Vajpayee and President Bush affirmed their commitment to qualitatively transform India-U.S. relations. They further agreed that the two sides should discuss ways to stimulate bilateral high technology commerce as a step toward enhancing the new relationship between the United States and India.
In pursuit of this goal, the Governments of the United States and India decided in November 2002 to work expeditiously toward developing a new statement of principles regarding bilateral cooperation in high technology trade, including trade in "dual-use" goods and technologies, in a way that broadly advances the relationship between the two countries in this area and reinforces their mutual interest in stemming the proliferation of sensitive goods and technologies.
The two Governments have set forth the principles to further promote and facilitate bilateral high technology commerce in its broadest sense:
1. The two Governments note that there is immense untapped potential for India-U.S. high technology commerce and recognise the importance of taking steps to remove systemic tariff and non-tariff barriers, identify and generate awareness of market opportunities, and build additional confidence in the two countries for such trade, in a way that reflects their new relationship and common strategic interests.
2. The two Governments recognize that the private sectors in India and the United States are important partners in this endeavour.
3. The two Governments should focus on steps to create the appropriate environment for successful high technology commerce. The Government of India appreciates the importance that the Government of the United States attaches to a supportive regulatory and institutional environment in India for robust bilateral high technology commerce, including easing barriers to such commerce. The Government of India intends to do its utmost in this regard.
4. The two Governments should seek to identify market opportunities in high technology commerce and related regulations that affect such commerce.
5. The two Governments, in partnership with the private sector, should consider steps for trade promotion efforts to generate awareness about market potential, relevant regulatory issues, collaboration opportunities, and financing possibilities.
6. The two Governments understand the importance of enhancing trade between India and the United States in "dual-use" items, including controlled "dual use" goods and technologies, while protecting the national security and foreign policy interests of both countries, and intend to take steps to facilitate such trade, which is a component of high technology commerce.
7. The two Governments should encourage outreach and educational activities to ensure that the private sectors in India and the United States have full and accurate information regarding the export control laws, regulations, and policies of the two countries.
8. The two Governments attach the highest importance to preventing the proliferation of sensitive goods and technologies. They further recognise the importance of continuing their export control cooperation programme and activities to achieve the shared goal of strengthening export control systems through laws, regulations, and enforcement, in accordance with modern export control standards.
9. The Government of the United States appreciates the importance that the Government of India attaches to the widest possible access to U.S. "dual-use" goods and technologies and to efficiency, continuity, stability, and transparency in the export license application process. The Government of the United States intends to do its utmost in this regard, consistent with its laws and national security and foreign policy objectives, including compliance with international commitments.
10. The two Governments recognize that U.S. "dual-use" export controls currently apply to only a very small fraction of total U.S.-India high technology commerce, and that a broad range of "dual-use" goods and technologies is currently available to India.
11. The Government of the United States should seek to identify and review licensing processes and policies for exports to India of goods and technologies controlled for reasons of anti-terrorism (AT), crime control (CC), encryption (EI), national security (NS), regional stability (RS), and short supply (SS), in a manner that seeks to facilitate further trade in these "dual-use" goods and technologies.
12. For authorized transfers of "dual-use" goods and technologies controlled for missile technology or nuclear proliferation reasons, including exports to entities in civilian space and civilian nuclear energy fields, the Government of India will consider a mutually satisfactory system of assurances regarding end use, diversion, transfers and retransfers within and outside India, re-export, and, where necessary, physical protection and access to the controlled items by third parties.
13. The two Governments should examine cooperative steps to ensure that all parties adhere to license conditions for "dual-use" goods and technologies and should outline the manner in which suspected violations and infractions are to be addressed. The Government of India will cooperate with the Government of the United States in verifying Indian end users and end uses.
14. The two Governments should seek to keep each other informed about changes in their export control laws, regulations, and policies; exchange information on export licences that are approved, denied, or returned without action; and establish a mechanism for prompt discussion of any bilateral "dual-use" export control issues.
15. This Statement of Principles constitutes the basis for further steps to enhance high technology commerce between the two countries.
16. The two Governments plan to convene as soon as possible the India-U.S. High Technology Cooperation Group (HTCG), decided upon in November 2002, to further this Statement of Principles and develop a schedule of meetings and activities for this purpose.
Kenneth I. Juster
Under Secretary
U.S. Department of Commerce
Kanwal Sibal
Foreign Secretary
Indian Ministry of External Affairs
February 5, 2003
Washington, D.C.