On May 22, local time in the United States, the US Department of Commerce's Bureau of Industry and Security (BIS) announced that it would include a total of 33 Chinese companies and institutions on the "Entity List". These companies include Beijing Computational Science Research Center, Qihoo 360 Technology Co., Ltd., Harbin Institute of Technology, Harbin Engineering University, K Logistics (China) Limited and other technology companies and institutions. Being included in the "Entity List" by the United States means that the US government can restrict the export, import, or re-export to these companies in accordance with the Export Administration Regulations.
1. About the Export Administration Regulations (EAR).
EAR is a set of regulations issued under the Export Administration Act to regulate the export of certain U.S.-origin commodities, including foreign-made products that incorporate certain U.S.-origin commodities, technology or software. Generally, companies seeking to export, re-export or transfer products covered by the EAR (the domestic company) must obtain a license or license waiver from BIS based on the purchasing entity and destination country or district.
As an important annex to the Export Administration Regulations, the Commerce Control List classifies all commodities under the jurisdiction of the EAR, and implements corresponding control measures according to technical characteristics of different products, destination countries, end-users, and end uses. Each controlled item has its own code, called "Export Control Classification Number". It categorizes export controls on exported goods to determine their export control classification codes and corresponding control measures.
2. About the Entity List.
The Entity List is the export control regulation formulated by the United States to safeguard its national security interests. In short, an "entity list" is a "blacklist." Once on this list, it actually deprives relevant companies of trade opportunities in the United States. According to relevant US export regulations, these enterprises and institutions will be restricted from exporting, importing, and re-exporting after being included in the Entity List. Any business transactions between these companies and the US must be approved by the US Department of Commerce.
Although a company is included in the entity list, it may still sell goods and services to buyers in the United States because the EAR only involves the export, re-export and transfer of certain goods to the listed entities. However, if the goods involved are regulated goods referred to by the EAR, these Chinese entities must still comply with the EAR or otherwise find themselves punished for violating the EAR.
3. Legal Remedies.
In general, companies listed on the entity list can appeal the decision by submitting a written request to the U.S. Department of Commerce’s Industry and Security Bureau End-User Review Committee (ERC) to modify or delete their entries.
Before making a request to ERC, the listed company should conduct internal or the third party assessment to evaluate whether to appeal the ERC decision, These assessments include whether reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. Then collect all relevant information in preparation for submission and subsequent appeal with ERC.
To be more specific, according to the Code of Federal Regulations, the appeal procedure is as follows: (a) The request and its reasons must be submitted to the ERC in writing, and the ERC will review it in accordance with the prescribed procedures. (b) After review, the deputy assistant secretary of the committee will convey the decision on the request to the requester in writing.
It is undeniable that in the current situation, it is very difficult to remove from the entity list. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote. For national security considerations and the confidential nature of commercial information reviewed by ERC, BIS is not at liberty to provide to the public detailed information on which the ERC relies to make the decisions to remove these entities. In addition, the information included in a removal request is exchanged between the applicant and the ERC, which by law, BIS is restricted from sharing with the public.
Although a tough job, it does not mean that there is no possibility to win the appeal and be removed from the entity list. Once an appeal is successful, it will bring positive guidance and set a good example for Chinese companies. So far, several companies have been removed from the entity list through various relief channels, including ZTE Kangxun Telecommunications Ltd., China National Commercial New Tone Trading, Yantai Jereh Oilfield Services Group Co., Ltd. and the well-known ZTE Corporation. These cases also remind Chinese companies that appealing in accordance with legal procedures is still an important way to claim legitimate economic rights and interests, and should not be ignored.
1. 关于《出口管理条例》（Export Administration Regulations 简称EAR）
而作为《出口管理条例》的重要附件，《商业管制清单》（The Commerce Control List） 将EAR管辖范围内的所有商品进行分类，根据不同产品的技术特点、目的国、最终用户和最终用途等参数施行相应的管制措施。这其中每一个受管制的项目都有一个属于自己的代码，叫作“出口管制分类代码”（The Export Control Classification Number）。在分类代码框架下对出口商品进行归类以确定其相应的管制措施。
2. 关于“实体名单”（Entity List）
一般来说，被列入实体清单的公司可以通过向美国商务部工业与安全局最终用户审核委员会（End-User Review Committee，简称ERC）提交书面请求来修改或删除其条目来对决定提出申诉。
具体而言，依照联邦法规守则(Code of Federal Regulations)规定，申诉程序如下：（a）必须将请求及其理由以书面形式提交给ERC，ERC会将会按照规定的程序进行审核。（b）经过审核后委员会副助理秘书将传达对申诉请求的书面决定。
尽管去除标准高、难度大，但这不并不意味着主动申诉并被移出实体清单毫无可能性，而且一旦申诉成功后会给中国企业带来良好的正面指引和示范效应。迄今为止已有数家公司通过各类救济途径而被移出清单实体，这其中包括中兴康迅电信有限公司，China National Commercial New Tone Trading，烟台杰瑞石油服务集团股份有限公司以及众所周知的中兴公司。这些案例也提醒中国企业方依照法律程序去申诉依然是主张合法经济权益的重要途径，不应该被忽视。