Commerce’s Bureau of Industry and Security (BIS) published guidance outlining the different actions that BIS takes to inform industry and academia about parties – beyond those identified on public screening lists like the Entity List – that present risks of diversion of items subject to BIS export controls to countries or entities of concern. Thew guidance also contains a new recommended best practice asking that exporters, reexporters, and transferors of Common High Priority List (CHPL) items screen transaction parties using online resources made newly available by the Trade Integrity Project (TIP).

The new Iran Foreign Direct Product rules go into effect next month, and the unusual way the rule was imposed may have left some practitioners unprepared.  Enacted by Congress with no input from the Deparetment of Commerce, the provisions of (HR. 6603) introduced by Rep. Nathaniel Moran (R-TX) were included in the massive emergency supplemental appropriation [HR 815] signed into law April 24th.  "This is the first time in the history of Congress that it passed a bill to codify a foreign direct product rule," Mr. Moran's office stated.

ASML, a Dutch semiconductor producer, had its license to ship two types of machines that make semiconductors partially revoked. This comes after ASML canceled some of its shipments ahead of tightening Dutch restrictions on exports. "China opposes the US’s overstretching the national security concept and using all sorts of pretexts to coerce other countries into joining its technological blockade against China," said Foreign Ministry Spokesperson Wang Wenbin.  

In a wide ranging conversation at Georgetown University, Under Secretary of Commerce for Industry and Security Alan Estevez shared his perspective on the evolution of export controls and the road ahead. "I believe now that we are at sort of a foundational inflection point as to the role and purpose of export controls," Estevez said. " Commerce is in the middle of national security in a number of spheres these days.

"We do it from two perspectives. We do it from offense and we do it from defense. Offense is things like Chips Act. So how are we going to build chip production in the United States, where we have assured supply? Semiconductors are the foundation of a lot of what goes on in our economy. "The core of the defense structure is our export controls. Protecting the technology that our adversaries could use against us, should it ever come to any kind of kinetic action...

A report by the House Foreign Affairs Committee highlights shortcomings in the U.S. export control system and calls for reforms, legislative and administrative.   Drawing extensively on the work of former Defense Department Export Control Official Stephen Coonen, the report offers a preview of the reception BIS officials can expect in next week's hearing. "Both the Trump and Biden administrations, principally from the White House, have rightly begun exerting more control over the Commerce Department’s Bureau of Industry and Security (BIS). However, no administration will be able to fully leverage the power of export controls to protect U.S. national security without Congressional action. Now, Congress must solidify the efforts of successive administrations so our future will be better secured," the authors assert. Central to the committee's findings is the concern that BIS, under the Commerce Department, has been too lenient in granting licenses for dual-use technology transfers to China, failing to adequately consider the likelihood of military or surveillance use.

Defense Chiefs of the AUKUS military-industrial alliance met at the Defense Innovation Unit Headquarters at Moffett Field in  California to discuss progress for the partnership, especially Pillar II, the broad based defense industrial collaboration. The three nations are also establishing an AUKUS Industry Forum with trilateral government and industry representatives to help inform policy, technical and commercial frameworks to facilitate the development and delivery of advanced capabilities. The initial meeting of that forum will occur in the first half of 2024.  In a Joint Statement, the Secretaries and Deputy Prime Minister reaffirmed the three nations' commitment to maximize the strategic and technological advantage of AUKUS .  They agreed that advancing AUKUS requires continued commitment to streamlining defense trade controls and information-sharing while minimizing policy and financial barriers across public and private sectors.

Assistant Secretary of Commerce for Export Administration Thea Kendler held a briefing November 6 to discuss the rules issued October 17th. She explained the new parameters, associated license requirements, the new notified advanced computing license exception, and some of the measures put into place to address possible circumvention of the controls.

On Tuesday 17 October, the Commerce Department tightened controls over exports of AI-specific semiconductors. This move makes it more challenging for U.S. firms like Nvidia and Intel to market their current products in China or to launch new products as workarounds. Addressing oversights: This step is designed to mend potential oversights in the export regulations declared last year. Those regulations had been met with notable resistance from the international semiconductor sector and increased strains with Beijing.

The Department of Commerce’s Bureau of Industry and Security (BIS) has published new best practice guidance for industry to help prevent items that are considered the most significant to Russian weaponry requirements from being diverted for use in Russia’s war against Ukraine. The. Septermber 28 guidance recommends that exporters and reexporters of these highest priority items seek written assurances of compliance from their customers to help prevent diversion.

After complaining since at least 2005 that "we really need to do something about ITAR. It is really hurting U.S. industry,” and citing export controls for not hiring eligible non-citizens, South African immigrant Elon Musk's company SpaceX has been sued by the Justice Department for employment discrimination. The United States Department of Justice has filed a lawsuit against Space Exploration Technologies Corp. (SpaceX) for discriminating against asylees and refugees in its hiring process. The lawsuit contends that from September 2018 to May 2022, SpaceX deliberately discouraged such individuals from applying for positions within the company, violating the Immigration and Nationality Act (INA).

The Bureau of Industry & Security published an advisory opinion on the release of licensed technology to employees of the foreign subsidiary while on temporary work assignment at the home office.  No additional deemed export license is required for these employees, while any new “technology” or “software” that is either “released” to those employees in the United States or created in the United States that is not authorized by the existing BIS license would require a new export license or other authorization from BIS.

Free and Open Source Software (FOSS) refers to software that is released with a license that grants users the freedom to use, modify, and distribute the software. FOSS provides numerous benefits for developers, including collaborative development, flexibility, and the ability to leverage existing solutions. However, it also requires careful license compliance, intellectual property considerations, security awareness, community evaluation, integration management and as you will come to understand, unique Trade Control challenges.

A year ago, a breakthrough was expected in the U.S.-Cuba economic relationship when the Biden administration approved the first OFAC license allowing direct investment in and direct financing to a privately-owned Cuban company. However, no funds have been delivered, due to a lack of regulatory framework by the Cuban government, and conviction in Washington is lacking.

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