On March 28, 2023, the Department of Commerce’s Bureau of Industry and Security (BIS) amended the Export Administration Regulations (EAR) to confirm that the foreign policy interest of protecting human rights worldwide is a basis for adding entities to the Entity List. Specifically, this Final Rule amends 15 C.F.R. § 744.11 of the EAR regarding the criteria for revising the Entity List “to explicitly confirm a longstanding position that the protection of human rights throughout the world is a foreign policy interest considered in assessing whether the activities of an entity – and those acting on behalf of such entity – are contrary to the national security or foreign policy of the United States.” BIS states that this amendment is consistent with U.S. foreign policy objectives set forth at 50 U.S.C. 4811(2)(D), as well as a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit in Changji Esquel Textile Co. Ltd. v. Raimondo, which affirmed BIS’ authority to add parties to the Entity List for human rights-related reasons. Accordingly, the first sentence of Section 744.11(c)(3) now reads as follows:
The export, reexport, or transfer (in-country) of specified items to a certain party because 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, including the foreign policy interest of the protection of human rights throughout the world, and those acting on behalf of such entity. (emphasis added)
BIS also added 11 entities in Burma, the People’s Republic of China (China), Nicaragua, and Russia to the Entity List for engaging in activities contrary to U.S. foreign policy interests in the area of human rights abuses. The entities are:
- Miya Win International Ltd.
- Myanmar New Era Trading Company Ltd.
- Suntac Group
- Luopu Haishi Dingxin Electronic Technology Co., Ltd.
- Moyu Haishi Electronic Technology Co., Ltd.
- Pishan Haishi Yong’an Electronic Technology Co., Ltd.
- Urumqi Haishi Xin’an Electronic Technology Co., Ltd.
- Yutian Haishi Meitian Electronic Technology Co., Ltd.
NOTE: These entities are reportedly subsidiaries of Hikvision, a Chinese company previously placed on the Entity List in 2019
- Nicaraguan National Police (NNP)
- Aviatech Supply Ltd.
- Aviazapchast PLC
For each of these entities, BIS now imposes a license requirement for all items subject to the EAR and will review license applications under a presumption of denial. However, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this Final Rule that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on March 28, 2023, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) before April 27, 2023. Any such items not actually exported, reexported, or transferred (in-country) before midnight, on April 27, 2023, require a license in accordance with this Final Rule.