Additional Documentation Requirements Take Effect for Exports and Reexports of U.S. Items to and from Hong Kong
April 19, 2017
Effective today, the U.S. Department of Commerce Bureau of Industry and Security (BIS) has implemented support documentation requirements for a significant number of commodities, technologies, and software (collectively "items") controlled under the Export Administration Regulation (EAR) for export and reexport to and from Hong Kong.1 The requirements entail obtaining a copy of the Hong Kong import license or a written statement from the Hong Kong government for exports and reexports to Hong Kong, and obtaining a Hong Kong export license or a statement from the Hong Kong government that such a license is not required in order to comply with the EAR for shipments from Hong Kong (collectively the "Documentation Requirements"). These Documentation Requirements apply irrespective of whether a license is required under the EAR, and the required documentation must be obtained prior to the export or reexport.
To provide exporters and reexporters with advance notice of the new requirements, these amendments were published in the Federal Register on January 19, 2017.2 The Documentation Requirements do not impose new license requirements.
Covered Commodities, Technologies, and Software
The Documentation Requirements apply to any item subject to the EAR that is controlled for national security (NS), missile technology (MT), nuclear nonproliferation (NP column 1), or chemical and biological weapons (CB) reasons. So, while EAR99 items, anti-terrorism (AT)-only items, and crime control (CC)-only controlled items are exempt from the Documentation Requirements, a significant number of items are covered. Examples of EAR items that are subject to the requirements include but are not limited to:
- encryption hardware controlled under 5A002;
- software with encryption functionality controlled under 5D002;
- telecommunications equipment controlled under 5A001 of 5A101;
- optical sensors, including focal plane arrays and image intensifier tubes, controlled under 6A002;
- lasers controlled under 6A005;
- integrated circuits, microprocessors, and analog-to-digital converters controlled under 3A001;
- CAD (computer-aided-design) software for semiconductors controlled under 3D003; and
- protective and detection equipment controlled under ECCN 1A004 and 1A005.
As stated above, for exports and reexports to Hong Kong, the required documentation is either a copy of the Hong Kong import license or a written statement from the Hong Kong government that a license is not required. Exporters and reexporters should work with their Hong Kong-based importers to obtain copies of the import license or No Import License Verification. Examples of a No Import License Verification include:
- a written communication to a license applicant from the Hong Kong government notifying the applicant that no license is required; or
- a statement available to the general public (i.e., on Hong Kong's government website) that a license is not required.
Additionally, persons seeking to ship the covered EAR items from Hong Kong must obtain a Hong Kong export license or a statement from the Hong Kong government that a license is not required to comply with the EAR. Further, the exporter/reexporter must maintain copies of the applicable Hong Kong license or the Hong Kong government's written statement for a period of at least five years from the date of shipment. Civil monetary penalties for a violation of the EAR can be up to $289,238 or twice the value of the transaction, whichever is greater, for each violation.
No Import License Verification for Intangible Transfers
An illustrative example of a Hong Kong government statement of a No Import License Verification is the FAQ section of the Hong Kong government's Trade and Industry Development website, which discusses whether Hong Kong controls intangible transfers of technology.3 Specifically, the response to FAQ No. 9 states that the "export or transfer of software and technology via intangible means, such as fax transmissions, e-mails, downloads from the Internet, oral transmission (e.g., conversation, speeches, and lectures" is not controlled (no import license required). Thus, for electronic downloads of software controlled under the EAR for NS, MT, NP column 1, or CB reasons, such as software controlled under 5D002, the exporter or reexporter may simply save a copy of the website's FAQ for its files to meet the Documentation Requirements.
If you would like to discuss this matter or have any questions about export compliance in light of this information, please contact Josephine Aiello LeBeau (202-973-8813; firstname.lastname@example.org), Melissa Mannino (202-973-8856; email@example.com), or Anne Seymour (202-973-8874; firstname.lastname@example.org) of the export control and economic sanctions regulatory practice at Wilson Sonsini Goodrich & Rosati.