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On October 15th, comments were due on two proposed rules from the Department of Commerce's Bureau of Industry and Security (BIS) to widen the net of export restrictions targeting military end users (MEU), military intelligence users (MIU) and foreign-security end users (FSEU).

The first proposed rule would expand current military end use and end user controls while foreshadowing tighter licensing restrictions to come. BIS emphasized that items subject to the Export Administration Regulations (EAR) would require a license for export when the products may be destined for military end use in a D:5 country or Macau.

The definition of military end user is proposed to be broadened with the aim of capturing private companies and other unorthodox actors supporting armed forces or who are otherwise involved in military action. BIS has also proposed a wider definition of  “intelligence user” along with a new license application review policy.

The second proposed rule provides for the addition of a Foreign-Security End Use and End User category which would restrict item transfers to both public and private sector entities involved in foreign-security fields such as prisons, labor camps and laboratories. This classification dovetailed with new proposed item controls and license requirements for the export of facial recognition technology, which is used by repressive regimes to violate human rights. Biometric identification tools are growing increasingly available on global markets with the progression of artificial intelligence, and their nefarious use by foreign-security end users has spurred the recognition of the need for controls.

This discussion addresses BIS strategic objectives, new requirements, and best practices for identifying exposure to MEU/MIU/FSEU risk given regulators’ heightened scrutiny.

Speakers:

Mark Nakhla, Chief Research Officer, Kharon

Mark is responsible for the integrity and strategic direction of all Kharon research. Mark has deep domain expertise on the activities of terrorist support networks and other groups targeted by international sanctions. Mark served as a sanctions officer at the U.S. Treasury Department Office of Foreign Assets Control (OFAC) between 2002-2005 and 2012-2013 investigating terrorist groups and their networks of financiers and facilitators in the Middle East, Asia, and beyond. Mark previously served at the U.S. Department of Defense as a Middle East policy adviser, and at Booz Allen Hamilton, where he focused on strategic research and policy planning.

Deborah Curtis, Partner, Arnold & Porter

Deborah Curtis, former Deputy General Counsel for Litigation and Investigations at the CIA and top national security prosecutor, is a member of Arnold & Porter’s White Collar Defense & Investigations practice. Her senior executive leadership experience spans several agencies, including CIA, the Commerce Department’s Bureau of Industry and Security (BIS), and the Department of Justice (DOJ). An accomplished trial lawyer, Deborah is most often recognized for her expertise and creativity in solving seemingly insurmountable classified disputes, including in some of the most prominent national security investigations and litigations in recent history. Prior to joining the firm, she oversaw all litigation and investigations as an advisor to senior CIA leadership, which included congressional inquests, CIA crisis response, criminal inquiries, security issues, and the invocation of state secrets and diplomatic privileges and immunities.