International Law Advisory - BIS Issues Proposed Rule Requiring Electronic Filing for Certain Submissions

October 22, 2007

On October 19, 2007, the Department of Commerce, Bureau of Industry and Security (BIS) issued a proposed rule to amend the Export Administration Regulations (EAR) to make the electronic filing of certain licenses, requests, and notifications mandatory (see 72 Fed Reg. 59231-59238). The proposed rule would make certain amendments to the EAR to require electronic filing of license applications and other requests in most cases and to set forth related requirements and criteria.

Part 748 of the EAR (15 C.F.R. Section 748) lays out procedures for submitting to BIS the various documents required from parties wishing to engage in certain transactions or seeking advice on the proper classification of items subject to the EAR. Currently parties may submit license applications, encryption review requests, and any required notifications to BIS either via the Simplified Network Application Process (SNAP–R) system, the Electronic License Application Information Network (ELAIN), or the paper BIS Multipurpose Application Form BIS 748-P.

If implemented, the proposed rule would amend Parts 748.1, 748.3, and 748.6 of the EAR – as well as other EAR provisions that currently employ language related to the paper forms – with the effect of discontinuing ELAIN and requiring that the following types of submissions and their related attachments be filed via BIS’s SNAP-R system, unless BIS specifically authorizes paper submissions:

all export and reexport license applications (other than Special Comprehensive License applications);
classification requests;
encryption review requests; and
License Exception AGR (Agricultural Commodities) notifications.

Under the proposed rule, BIS may continue to authorize paper submissions if: (1) BIS has received no more than one submission from the party in the twelve months immediately preceding the current submission; (2) the party does not have access to the Internet; (3) BIS has rejected the party’s electronic filing registration or revoked its eligibility to file electronically; (4) BIS has requested that the party submit on paper for a particular transaction; or (5) BIS has determined that certain conditions justify allowing paper submissions on a particular instance. (Please note that advisory opinion requests are exempt from the proposed rule.)

The current proposed rule is the latest evolution in the improvements that BIS is making to increase the efficiency and security of its processes and is part of the agency’s effort to use improved Internet-based technology to make it easy for citizens and businesses to interact with the government, save taxpayer dollars, and streamline citizen-to-government communications (see the reference to the E-Gov initiative in BIS’s Annual Report for Fiscal Year 2006).

Public comments on the proposed rule must be received by BIS by December 18, 2007. If you have any questions regarding the proposed rule, please contact Ed Krauland at 202.429.8083 or at ekrauland@steptoe.com.