On March 30, 2023, the Department of Commerce’s Bureau of Industry and Security released a series of Frequently Asked Questions (FAQs) regarding human rights concerns and export controls. The FAQs address BIS’ authority under the Export Administration Regulations (EAR) to consider human rights concerns when reviewing export license applications, and states that exporters “are expected to exercise due diligence with regard to identifying human rights concerns.” The FAQs highlight that exporters should “know your customer” and may not “self-blind” by ignoring information that may indicate a proposed export may contribute to human rights violations or abuses.
In reviewing any license application for human rights concerns, BIS considers: (i) the items involved, (ii) country of destination, (iii) end-user(s), (iv) the specific nature of the end-use(s), and (v) the risk of unauthorized use or diversion as well as any assurances or safeguards to minimize such risk. The FAQs provide helpful links to policy guidance as well as Department of State and United Nations (UN) reference sources and advisories. BIS also notes that export controls for human rights concerns may be controlled under the “Crime Control,” “National Security,” “Regional Stability” and “Surreptitious Listening” reasons for control categories.
The FAQS also confirm that BIS has the authority to place parties on the Entity List for engaging in or enabling human rights violations or abuses. See Update of March 30, 2023.