Clifford Chance

With Release Of FAQs, BIS Clarifies Approach To Human Rights In License Applications – But Key Questions Remain

March 10, 2023

In March 2023, the US Department of Commerce, Bureau of Industry and Security ("BIS") released responses to frequently asked questions ("FAQ Responses") regarding its final rule "Amendment to Licensing Policy for Items Controlled for Crime Control Reasons" (the "Final Rule"). Issued on October 6, 2020, the Final Rule amended the US Export Control Regulations ("EAR") to expand how BIS uses the license application process to deter human rights abuses abroad. The passage of over two years since the Final Rule's issuance signals renewed interest within BIS in the human rights implications of items under review. The FAQ Responses crystallize when BIS will consider human rights in its reviews of license applications (that is, which categories of items might trigger review for human rights concerns), and details both the factors that BIS considers and the obligations of prospective exporters when assessing human rights risks in applications. However, the FAQ Responses remain silent on how exactly BIS will weigh human rights risks when present.

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