How can exporters leverage the new interagency process for resolving license application disputes under ECRA?

1 What is ECRA and why does it matter?

ECRA is a comprehensive law that governs the export, reexport, and transfer of items that have dual-use, military, or proliferation-related applications. It authorizes the Department of Commerce, through the Bureau of Industry and Security (BIS), to administer the Export Administration Regulations (EAR), which cover most commercial and some defense-related items. It also establishes the Export Administration Review Board (EARB), which is composed of representatives from various agencies, such as the Departments of State, Defense, Energy, and Treasury, as well as the Director of National Intelligence and the Attorney General. The EARB is responsible for reviewing and resolving license application disputes among the agencies.

2 How does the interagency process work?

The interagency process for resolving license application disputes under ECRA is similar to the one that was in place under the Export Administration Act of 1979. However, ECRA provides more clarity and transparency on the roles and responsibilities of the EARB and the agencies involved. This process includes three levels of review. At Level 1, the BIS Licensing Officer makes an initial decision on the license application based on the EAR and the advice of other agencies. If any agency objects to this decision, they can elevate it to Level 2 within 10 days. At Level 2, the BIS Assistant Secretary for Export Administration reviews the case and consults with the objecting agency. If they are unable to resolve the dispute, either party can refer it to Level 3 within 15 days. Finally, at Level 3, the EARB reviews the case and makes a final decision by majority vote within 30 days, unless extended by the President or Secretary of Commerce for national security or foreign policy reasons.

3 How can exporters leverage the interagency process?

As an exporter, you have the right to request information and provide input at each level of review, and can also appeal the decision of any level to the next higher level. To leverage the interagency process to your advantage, communicate with the BIS Licensing Officer and other agencies involved in your case, explaining the purpose and end-use of your export and providing supporting documentation. Monitor the status of your license application and be aware of the deadlines for each level of review. If you disagree with a decision, request a written explanation and appeal to the next higher level while providing additional information or arguments to support your position. You can also seek legal counsel or consult with trade associations or experts for guidance. In urgent or exceptional circumstances, you can request an expedited review by the EARB by submitting a written justification and evidence of the urgency or exceptionality to the BIS Assistant Secretary for Export Administration; they will decide whether to grant or deny your request within 10 days.

4 What are the benefits and challenges of the interagency process?

The interagency process for resolving license application disputes under ECRA offers exporters several advantages, including a consistent framework for interagency coordination, enhanced accountability and transparency, and the opportunity to participate in the process. However, it can also be time-consuming and complex if multiple agencies are involved or have conflicting views. It may result in unfavorable decisions that limit export opportunities or impose additional costs or burdens, and can be subject to external influences such as political pressures or foreign policy considerations. As an exporter, it is important to take the time to evaluate your options and strategies before engaging in the interagency process. It is also important to stay informed on export control regulations and policies that may affect your business.

5 How can you learn more about the interagency process?

If you want to learn more about the interagency process for resolving license application disputes under ECRA, you can visit the BIS website for information on the EAR, the ECRA, and the EARB, as well as guidance and FAQs on various export control topics. Additionally, the BIS Ombudsman serves as a liaison between exporters and the BIS Licensing Officers and other agencies to help resolve issues or complaints related to export licensing. The BIS Export Counseling Division also offers free advice and assistance on export licensing and compliance issues. Finally, BIS online training modules cover various aspects of export control and licensing, including the interagency process.

6 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?