Having served as the prior Undersecretary to the Department of Commerce’s Bureau of Industry and Security, Cordell Hull has a unique and important perspective on its future. This is Part II of a three-part series with his reflections on several topics pertaining to BIS.
If you missed Part I on license processing and emerging and foundational technologies, click here. Stay tuned for Part III later this week.
BIS should continue to use the authorities granted in ECRA to investigate potential violations. ECRA also increased the penalties for export control violations. ECRA provides a maximum fine of $1 million and 20 years in prison for criminal violations. For civil violations, there is a maximum fine of $300,000 (adjustable for inflation; it’s now $308,901) or twice the value of the transaction, whichever is greater. Twice the value of the transaction can be significant. Just last year, for instance, BIS affirmed an administrative penalty of more than $31 million for unlawful exports of seismic equipment for use in oil surveys in Iranian waters.
BIS has had some notable enforcement over the past several years. The resolution against Chinese telecommunications company ZTE is significant and required more than $1 billion in fines, a BIS-administered monitorship, and a court-appointed monitorship. With some of the new rules – MEU and Foreign-Produced Direct Product to name a couple – as well as significant companies on the Entity List, BIS and its law enforcement partners should closely monitor compliance.
Entity List and Military End Use
The Entity List and MEU Rule are two items that gained prominence during the Trump administration and will likely continue to have a leading role in export control policy. BIS used the Entity List to target parties that use U.S.-origin items to act in a way that’s contrary to the national security and foreign policy interest of the United States.
Huawei, certain companies involved in activities in the Xinjiang region in China, and SMIC are all prominent examples. Continuing this trend, the Biden administration has already added to the Entity List seven of China’s supercomputing entities.
BIS and its interagency partners should continue targeted use of the Entity List.
But the Entity List is one tool in a suite of government options to target malign behavior. Financial sanctions and visa restrictions should also be a part of the conversation.BIS should continue to add to the Military End User List as appropriate and aggressively enforce violations of the Military End-User Rule. The regimes of certain foreign countries – China, Russia, Venezuela, and Burma at present – operate in a way that blurs or eliminates the line between civilian and military uses of items.Using the full resources of the U.S. government, BIS should ensure that our innovation is not being used against us by these regimes’ military or intelligence services.
 Civil Monetary Penalty Adjustments for Inflation, 86 Fed. Reg. 1764 (Jan. 11, 2021), https://www.federalregister.gov/documents/2021/01/11/2020-29024/civil-monetary-penalty-adjustments-for-inflation.
 Final Decision and Order, In the Matter of Nordic Maritime Pte. Ltd., et al., 85 Fed. Reg. 52312 (Aug. 25, 2020), https://www.federalregister.gov/documents/2020/08/25/2020-18615/in-the-matters-of-nordic-maritime-pte-ltd-and-morten-innhaug-respondents-final-decision-and-order.
 Addition of Entities to the Entity List, 86 Fed. Reg. 18437 (Apr. 8, 2021), https://www.federalregister.gov/documents/2021/04/09/2021-07400/addition-of-entities-to-the-entity-list.
 Expansion of Export, Reexport, and Transfer (in-Country) Controls for Military End Use or Military End Users in the People’s Republic of China, Russia, or Venezuela, 85 Fed. Reg. 23459 (Apr. 28, 2020), https://www.federalregister.gov/documents/2020/04/28/2020-07241/expansion-of-export-reexport-and-transfer-in-country-controls-for-military-end-use-or-military-end.
 Burma: Implementation of Sanctions, 86 Fed. Reg. 13173 (Mar. 8, 2021), https://www.federalregister.gov/documents/2021/03/08/2021-04745/burma-implementation-of-sanctions.