Final Rule Amending EAR
Date of publication: December 21, 2020
In November 2020, the Bureau of Industry and Security (BIS) of the United States Commence Department released a final rule amending and clarifying certain provisions of the Export Administration Regulations, or EAR.
Through the EAR, BIS controls the export of dual-use goods and goods that are not controlled by other regulations. It also covers the export of goods for reasons of national security, foreign policy, non-proliferation, and short supply. Some of the product categories subjected to EAR include:
- Nuclear and miscellaneous
- Materials, chemicals, microorganisms, and toxins
- Materials processing
- Information security
- Sensors and lasers
- Navigations and avionics
- Aerospace and propulsion
By controlling the export of the goods in the above categories through the EAR, BIS aims to advance national security and foreign policy by ensuring effective control and compliance. It also serves to promote strategic technology leadership within the United States.
The final rule from BIS, which went into effect on November 18, 2020, promotes compliance with existing EAR requirements. It also implements the export enforcement portion of Export Control Reform Act (ECRA) of 2018. This act affirmed existing authorities under the EAR and provided expanded export control authorities to the Secretary of Commerce. To make certain EAR provisions compliant with ECRA, amendments within the BIS final rule replace existing references to the Export Administration Act of 1979, which was mostly repealed by ECRA. It also removes references to other outdated export laws and regulations. Additionally, the final rule amends the EAR to reflect the expanded scope of authority provide to the Secretary of Commerce under ECRA.
The final rule also implements enforcement provisions, including:
- Overseas investigative authority
- Pre-license checks
- Post-shipment verifications
- Searches, inspections, detentions, and seizures concerning export, reexports, and transfers
- Inspection of books, records, and other information
- Violations and penalties under ECRA
An additional rule also went into effect on December 4th, 2020. With this rule, which is referred to as the Wassenaar Arrangement 2018 Plenary Decisions Implementation, BIS corrects errors within a September 2020 publication on EAR.
For more information about BIS’s rules and regulations on EAR, including the recent final rule, please see https://www.bis.doc.gov/index.php/federal-register-notices#fr78684. To stay aware of any changes that need to be made in compliance of the EAR final rule, update internal controls to reflect the recent changes.
This content is intended for informational purposes. Due to the generality of this content, the provided information may not be applicable in all situations. We encourage the reader to review the most up-date-regulations directly with the U.S. government’s sources on EAR, which can be found here.