By: John Black

The US Bureau of Industry and Security has added Venezuela to the list of countries subject to special military end-use (user) controls.  EAR 744.21 imposes controls on exports/reexports of certain ECCNs to “military end-uses” in the PRC.  744.21 imposes control on exports/reexports of certain ECCNs to “military end-uses” and “military end-users” in Russia.  Venezuela is now subject to the same rules that were already applicable to Russia, and which are broader than the rules applicable to the PRC, because the PRC rule does not prohibit delivery to “military end-users.”

An often overlooked critical aspect of the PRC, Russia and Venezuela rules are that they apply only uses that fall within the EAR definition of “military end-use” and only to users (for Russia and Venezuela only) military end-users” as defined in the EAR.  Many exporters make the mistake of assuming the rules use a common sense definition of military end-use and military end-user, but that is not the case.  For example, military end-use rules may apply in cases where you deliver to a manufacturer in China and the military end-user rule may apply in cases where you deliver items to the national police in Russia.  The other common mistake is that some people assume the rules are applicable to all EAR items, when, in fact, the rules apply only to those items identified in Supp. 2 to 744 of the EAR, which, for example, does not include EAR99 items.

“Military end use,” as defined in 744.21, includes delivery to activities involving the production of military items (on the USML, the Wassenaar Munitions List or in xx018 of 600 series ECCNs in the CCL), but does not include a complete ban on delivery to military entities, as it focuses on the nature of the end use, not on the end user.

The military end user rule for Russia and Venezuela is a complete ban on delivery of the items in Supp. 4 to “military end users,” which is defined to include national armed services (army, navy, marine, air force or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations or any person or entity whose actions or functions are intended to support “military end uses” as defined in 744.21.

If you already have procedures in place to comply the long standing rules for China and the new rules for Russia, just update your procedures to apply to Venezuela the same procedures you use for Russia.  If you don’t have procedures for China or Russia, this Venezuela rule will spurn you to get something in place ASAP.

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