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.
In their September 14 guidance BIS, together with allies and partner countries, identified forty-five Harmonized System (HS) codes covering controlled items at heightened risk of being diverted illegally to Russia because of their importance to Russia’s war efforts.
Of these, BIS has prioritized nine HS codes as the most significant to Russian weaponry requirements (the Highest Priority Items List).
Given the heightened threat resulting from Russia’s continued attempts to evade U.S. export controls through third countries for which a BIS export license is generally not required, it is recommended that, at least for transactions involving these nine "Highest Priority Items" with parties in countries outside of the Global Export Controls Coalition (GECC), exporters seek assurances of compliance with U.S. export controls.
It is a best practice to receive these assurances in writing, for example, through a signed certification statement.
BIS has identified the following information and assurances that can help prevent the diversion of Highest Priority Items to Russia through non-GECC countries. For exporters that already are using customer certifications or end-user statements, the suggestions below are not meant to replace what you have already determined best mitigates diversion risk.
BIS does, however, encourage you to review the information below and consider whether it’s worth adding any of the suggested questions to your existing documentation to help prevent diversion through third countries to Russia.
Full name and address of the non-GECC customer, line of business, website address, and role in the transaction (i.e., purchaser, intermediate consignee, ultimate consignee, or end user). For new customers, request a copy of the business license.
Activity the customer intends to take with the item: Consumed, Transformed into a different item (e.g., through further processing, integration, or incorporation), Maintained for stock, including the likelihood for reexport v. transfer (in-country), Resold with a specification as to who the next customer is (name and address)
If the customer is not the end user, the name and address of the known end user.
List of items covered by the transaction and confirmation from the customer that the item requires a license if exported or reexported to Russia or Belarus.
Attestation that the customer will comply with the Export Administration Regulations (EAR) and flow-down these EAR requirements to its customers and other parties to the subsequent reexport or transfer (in-country) transaction to:
o Ensure that before reexporting or transferring (in-country) the item, subsequent parties to a reexport or transfer (in-country) transaction will be screened against the U.S. Consolidated Screening List6 and comply with any restrictions related to any such transaction parties.
o Not providing the item for end use by or to end users of the military, intelligence, or national police of Belarus or Russia.
o Not providing the item for end uses or to end users tied to nuclear weapons, chemical and biological weapons, or missiles or unmanned aerial vehicles capable of a range of at least 300 kilometers (or when such range is unknown).
o Not providing the item for ultimate end use in Belarus or Russia or temporarily occupied regions of Ukraine and covered regions of Ukraine pursuant to Part 746.6 of the EAR.
Certification by the customer, including name, title, phone number, email address, date, and signature.
The new guidance, along with a sample written certification form, can be found [here].