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December 21, 2010 

U.S. Export Controls Involving India: A Reality Check

Following the President's trip to India last month there has been a great deal of misinformation in the Indian press regarding the "lifting" and "relaxation" of dual-use export controls on India, including the removal of Indian entities from the Bureau of Industry and Security's Entity List (15 CFR Part 744, Supplement 4). (See previous post on importance of complying with Entity List.)

Although U.S. dual-use export controls affect less than one percent of U.S. trade with India trade, there has been a good deal of misunderstanding on the scope of U.S. export controls involving exports of goods, software and technology to India. An excellent report by the American Enterprise Institute noted that in in 1999 24 percent of total U.S. exports to India required a “dual-use” license from BIS.  That number is less than 0.2 percent today.

Here is a summary of the pending changes to U.S. export controls on India:

First, only the following India companies and organizations will be removed from the Entity List:

  • Bharat Dynamics Limited
  • Four remaining subordinates of the Defense Research and Development Organization (DRDO): 
    • Armament Research and Development Establishment (ARDE)
    • Defense Research and Development Lab (DRDL) 
    • Missile Research and Development Complex
    • Solid State Physics Laboratory
  • Four remaining subordinates of the Indian Space Research Organization (ISRO): 
    • Liquid Propulsion Systems Center,
    • Solid Propellant Space Booster Plant (SPROB)
    • Sriharikota Space Center (SHAR), and 
    • Vikram Sarabhai Space Center (VSSC).
The entities associated with India's Department of Atomic Energy, including India's nuclear reactors, will remain on the Entity List for the foreseeable future. As a result, an export license is required to export all items "subject to the EAR" to Department of Atomic Energy facilities. BIS has a case-by-case licensing approval policy for controlled items and a presumption of approval for EAR99 items.


Note that the entities listed above will remain on the Entity List until BIS issues a final rule in the Federal Register amending the Entity List, which is expected in the coming weeks.

Second, BIS will “realign” India in the Export Administration Regulations to reflect its status as a strategic partner and therefore treating India similarly to other close allies and partners. This realignment will remove India from categories within the EAR that connote it as a “country of concern”—with a focus on Country Groups A and D. In exchange, India has agreed to undertake to harmonize its national control list with the multilateral regimes and impose reexport controls on certain U.S.-origin items.

Third, the U.S. has agreed to support India’s membership in the four multilateral export control regimes—the Nuclear Suppliers Group, Missile Technology Control Regime, Australia Group, and Wassenaar Arrangement. India will undertake to adopt the multilateral regimes’ export control requirements to reflect its prospective membership. The U.S. has indicated that India should qualify for membership in the Australia Group and the Wassenaar Arrangement once India imposes export controls over all items on these regimes’ control lists.


Exports to India will not be eligible for the proposed Strategic Trade Authorization (STA) License Exception that was recently published by BIS in the Federal Register.

In general, exports to India of items classified as EAR99 (the designation for items not on the Commerce Control List) can take place without having to obtain an export license from BIS. As with all exports, no unlicensed exports can be made to prohibited parties or for prohibited end-uses. An export license is required to export most items to India included on the Commerce Control List.

No change has been made to U.S. exports of defense articles to India subject to the ITAR. An export license from the Directorate of Defense Trade Controls is required to export all items to India that are subject to the jurisdiction of the ITAR and the Arms Export Control Act.

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