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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
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Title 15—
For this volume, Kenneth R. Payne and Ruth Green were Chief Editors. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Ann Worley.
(This book contains parts 300-799)
Sec. 6(c), Pub. L. 89-651, 80 Stat. 897, 899; Sec. 2402, Pub. L. 106-36, 113 Stat. 127, 168.
(a)
(b)
(2) Annex D of the Agreement provides that scientific instruments and apparatus intended exclusively for educational purposes or pure scientific research use by qualified nonprofit institutions shall enjoy duty-free entry if instruments or apparatus of equivalent scientific value are not being manufactured in the country of importation.
(3) The Annex D provisions are implemented for U.S. purposes in Subchapter X, Chapter 98, Harmonized Tariff Schedule of the United States (HTSUS).
(c)
(2) An institution wishing to enter an instrument or apparatus under tariff subheading 9810.00.60, HTSUS, must file an application with the Secretary of the Treasury (U.S. Customs Service) in accordance with the regulations in this section. If the application is made in accordance with the regulations, notice of the application is published in the
(3) Repair components for instruments or apparatus admitted duty-free
(4) Tools specifically designed to be used for the maintenance, checking, gauging or repair of instruments or apparatus admitted under subheadings 9810.00.65 and 9810.00.67, HTSUS, require no application and may be entered duty-free in accordance with the procedures prescribed in § 301.10.
(d)
For the purposes of these regulations and the forms used to implement them:
(a)
(b)
(c)
(d)
(e)
(f)
(1) Materials or supplies used in the operation of instruments and apparatus such as paper, cards, tapes, ink, recording materials, expendable laboratory materials, apparatus that loses identity or is consumed by usage or other materials or supplies.
(2) Ordinary equipment for use in building construction or maintenance; or equipment for use in supporting activities of the institution, such as its administrative offices, machine shops, libraries, centralized computer facilities, eating facilities, or religious facilities; or support equipment such as copying machines, glass working apparatus and film processors.
(3) General purpose equipment such as air conditioners, electric typewriters, electric drills, refrigerators.
(4) General-purpose computers. Accessories to computers which are not eligible for duty-free treatment are also ineligible. Scientific instruments containing embedded computers which are to be used in a dedicated process or in instrument control, as opposed to general data processing or computation, are, however, eligible for duty-free consideration.
(5) Instruments initially imported solely for testing or review purposes which were entered under bond under subheading 9813.00.30, HTSUS, subject to the provisions of U.S. Note 1(a), Subchapter XIII, Chapter 98, HTSUS, and must be exported or destroyed within the time period specified in that U.S. Note.
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(a)
(b)
(c)
(d) Five copies of the form, including relevant supporting documents, must be submitted. One of these copies shall be signed in the original by the person in the applicant institution under whose direction and control the foreign instrument will be used and who is familiar with the intended uses of the instrument. The remaining four copies of the form may be copies of the original. Attachments should be fully identified and referenced to the question(s) on the form to which they relate.
(e) A single application (in the requisite number of copies) may be submitted for any quantity of the same type or model of foreign instrument provided that the entire quantity is intended to be used for the same purposes and provided that all units are included on a single purchase order. A separate application shall be submitted for each different type or model or variation in the type or model of instrument for which duty-free entry is sought even if covered by a single purchase order. Orders calling for multiple deliveries of the same type or model of instrument over a substantial period of time may, at the discretion of the Director, require multiple applications.
(f) An application for components of an instrument to be assembled in the United States as described in § 301.2(f) may be filed provided that all of the components for the complete, assembled instrument are covered by, and fully described in, the application. See also § 301.2(k).
(g) Failure to answer completely all questions on the form in accordance with the instructions on the form or to supply the requisite number of copies of the form and supporting documents may result in delays in processing of the application while the deficiencies are remedied, return of the application without processing, or denial of the application without prejudice to resubmission. Any questions on these regulations or the application form should be addressed to the Director.
(a)
(1) Whether the institution is a nonprofit private or public institution established for research and educational purposes and therefore authorized to import instruments into the U.S. under subheading 9810.00.60, HTSUS. In making this determination, the Commissioner may require applicants to document their eligibility under this paragraph;
(2) Whether the instrument or apparatus falls within the classes of instruments eligible for duty-free entry consideration under subheading 9810.00.60, HTSUS. For eligible classes, see U.S. Note 6(a), Subchapter X, Chapter 98, HTSUS; and
(3) Whether the instrument or apparatus is for the exclusive use of the applicant institution and is not intended to be used for commercial purposes. For the purposes of this section, commercial uses would include, but not necessarily be limited to: Distribution, lease or sale of the instrument by the applicant institution; any use by, or for the primary benefit of, a commercial entity; or use of the instrument for demonstration purposes in return for a fee, price discount or other valuable consideration. Evaluation, modification or testing of the foreign instrument, beyond normal, routine acceptance testing and calibration, to enhance or expand its capabilities primarily to benefit the manufacturer in return for a discount or other valuable consideration, may be considered a commercial benefit. In making the above determination, the Commissioner may consider, among other things, whether the results of any research to be performed with the instrument will be fully and timely made
(b)
(a)
(2) If the Director determines that an application is incomplete or is otherwise deficient, he may request the applicant to supplement the application, as appropriate, prior to publishing the notice of application in the
(3)
(4)
(i) Specify the domestic instrument considered to be scientifically equivalent to the foreign article for the applicant's specific intended purposes and include documentation of the domestic instrument's guaranteed specifications and date of availability.
(ii) Show that the specifications claimed by the applicant in response to question 8 to be pertinent to the intended purpose can be equaled or exceeded by those of the listed domestic instrument(s) whether or not it has the same design as the foreign instrument; that the applicant's alleged pertinent specifications should not be considered pertinent within the meaning of § 301.2(s) of the regulations for the intended purposes of the instrument described in response to question 7 of the application; or that the intended purposes for which the instrument is to be used do not qualify the instrument for duty-free consideration under the Act.
(iii) Where the comments regarding paragraphs (a)(4)(i) and (a)(4)(ii) of this section relate to a particular accessory or optional device offered by a domestic manufacturer, cite the type, model or other catalog designation of the accessory device and include the specification therefor in the comments.
(iv) Where the justification for duty-free entry is based on excessive delivery time, show whether:
(A) The domestic instrument is as a general rule either produced for stock, produced on order, or custom-made and;
(B) An instrument or apparatus of equivalent scientific value to the article, for the purposes described in response to question 7, could have been produced and delivered to the applicant within a reasonable time following the receipt of the order.
(v) Indicate whether the applicant afforded the domestic manufacturer an opportunity to furnish an instrument or apparatus of equivalent scientific value to the article for the purposes described in response to question 7 and, if such be the case, whether the applicant issued an invitation to bid that included the technical requirements of the applicant.
(5)
(6)
(b)
(c)
(2) After the comment period has ended (§ 301.5(a)(3)), the complete application and any comments received and related information are forwarded to appropriate technical consultants for their advice.
(3) The technical consultants relied upon for advice include, but are not limited to, the National Institutes of Health (delegated the function by the Secretary of HHS), the National Institute of Standards and Technology and the National Oceanographic and Atmospheric Administration.
(d)
(ii) Programs that may be undertaken at some unspecified future date shall not be considered in the Director's comparison. In making the comparison, the Director shall consider only the instrument and accompanying accessories described in the application and determined eligible by the U.S. Customs Service. The Director shall not consider the planned purchase of additional accessories or the planned adaptation of the article at some unspecified future time.
(iii) In order for the Director to make a determination with respect to the “scientific equivalency” of the foreign and domestic instruments, the applicant's intended purposes must include either scientific research or science-related educational programs. Instruments used exclusively for nonscientific purposes have no scientific value, thereby precluding the requisite finding by the Director with respect to “whether an instrument or apparatus of equivalent scientific value to such article, for the purposes for which the article is intended to be used, is being manufactured in the United States.” In such cases the Director shall deny the application for the reason that the instrument has no scientific value for the purposes for which it is intended to be used. Examples of nonscientific purposes would be the use of an instrument in routine diagnosis or patient care and therapy (as opposed to clinical research); in teaching a nonscientific trade (e.g., printing, shoemaking, metalworking or other types of vocational training); in teaching nonscientific courses (e.g., music, home economics, journalism, drama); in presenting a variety of subjects or merely for presenting coursework, whether or not science related (e.g., video tape editors, tape recorders, projectors); and in conveying cultural information to the public (e.g., a planetarium in the Smithsonian Institution).
(2)
(3)
(4)
(5)
(ii) Notwithstanding a finding under paragraph (d)(5)(i) of this section that no equivalent instrument is being manufactured in the United States, the Director shall disqualify a particular component for duty-free treatment if the Director finds that the component is being manufactured in the United States.
(e) Denial without prejudice to resubmission (DWOP). The Director may, at any stage in the processing of an application by the Department of Commerce, DWOP an application if it contains any deficiency which, in the Director's judgment, prevents a determination on its merits. The Director shall state the deficiencies of the application in the DWOP letter to the applicant.
(1) The applicant has 60 days from the date of the DWOP to correct the cited deficiencies in the application unless a request for an extension of time for submission of the supplemental information has been received by the Director prior to the expiration of the 60-day period and is approved.
(2) If granted, extensions of time will generally be limited to 30 days.
(3) Resubmissions must reference the application number of the earlier submission. The resubmission may be made by letter to the Director. The record of a resubmitted application shall include the original submission on file with the Department. Any new material or information contained in a resubmission, which should address the specific deficiencies cited in the DWOP letter, should be clearly labeled and referenced to the applicable question on the application form. The resubmission must be for the instrument covered by the original application unless the DWOP letter specifies to the contrary. The resubmission shall be subject to the certification made on the original application.
(4) If the applicant fails to resubmit within the applicable time period, the prior DWOP shall, irrespective of the merits of the case, result in a denial of the application.
(5) The Director shall use the postmark date of the fully completed resubmission in determining whether the resubmission was made within the allowable time period. Certified or registered mail, or some other means which can unequivocally establish the date of mailing, is recommended. Resubmission by fax, e-mail or other electronic means is acceptable provided an appropriate return number or address is provided in the transmittal. Resubmissions must clearly indicate the date of transmittal to the Director.
(6) The applicant may, at any time prior to the end of the resubmission period, notify the Director in writing that it does not intend to resubmit the application. Upon such notification, the application will be deemed to have been withdrawn. (See § 301.5(g).)
(7) Information provided in a resubmission that, in the judgment of the Director, contradicts or conflicts with information provided in a prior submission, or is not a reasonable extension of the information contained in the prior submission, shall not be considered in making the decision on an application that has been resubmitted. Accordingly, an applicant may elect to reinforce an orginal submission by elaborating in the resubmission on the description of the purposes contained in a prior submission and may supply additional examples, documentation and/or other clarifying detail, but the applicant shall not introduce new purposes or other material changes in the nature of the original application. The resubmission should address the specific deficiencies cited in the DWOP. The Director may draw appropriate inferences from the failure of an applicant to attempt to provide the information requested in the DWOP.
(8) In the event an applicant fails to address the noted deficiencies in the response to the DWOP, the Director may deny the application.
(f)
(g)
(h) Nothing in this subsection shall be construed as limiting the Director's discretion at any stage of processing to insert into the record and consider in making his decision any information in the public domain which he deems relevant.
(a) An appeal from a final decision made by the Director under § 301.5(f) may be taken in accordance with U.S. Note 6(e), Subchapter X, Chapter 98, HTSUS, only to the U.S. Court of Appeals for the Federal Circuit and only on questions of law, within 20 days after publication of the decision in the
(b) An appeal may be taken by: (1) The institution which makes the application;
(2) A person who, in the proceeding which led to the decision, timely represented to the Secretary of Commerce in writing that he/she manufactures in the United States an instrument of equivalent scientific value for the purposes for which the instrument to which the application relates is intended to be used;
(3) The importer of the instrument, if the instrument to which the application relates has been entered at the time the appeal is taken; or
(4) An agent of any of the foregoing.
(c) Questions regarding appeal procedures should be addressed directly to the U.S. Court of Appeals for the Federal Circuit, Clerk's Office, Washington, DC 20439.
(a) Disposition of an application shall be final when 20 days have elapsed after publication of the Director's final decision in the
(b) The Director shall notify the Customs Port when disposition of an application becomes final. If the Director has not been advised of the port of entry of the instrument, or if entry has not been made when the decision on the application becomes final, the Director shall notify the Commissioner of final disposition of the application.
(c) An instrument, the duty-free entry of which has been finally denied, may not be the subject of a new application from the same institution.
Failure to follow the procedures in this section may disqualify an instrument for duty-free entry notwithstanding an approval of an application on its merits by the Department of Commerce.
(a)
(2) If no such claim is made the instrument shall be immediately classified without regard to subheading 9810.00.60, HTSUS , duty will be assessed, and the entry liquidated in the ordinary course.
(3) If a claim is made for duty-free entry under subheading 9810.00.60, HTSUS , the entry shall be accepted without requiring a deposit of estimated duties provided that a copy of the form, stamped by Customs as accepted for transmittal to the Department of Commerce in accordance with § 301.4(b), is filed simultaneously with the entry.
(4) If a claim for duty-free entry under subheading 9810.00.60, HTSUS is made but is not accompanied by a copy of the properly stamped form, a deposit of the estimated duty is required. Liquidation of the entry shall be suspended for a period of 180 days from the date of entry. On or before the end of this suspension period the applicant must file with the Customs Port a properly stamped copy of the form. In the event that the Customs Port does not receive a copy of the properly stamped form within 180 days the instrument shall be classified and liquidated in the ordinary course, without regard to subheading 9810.00.60, HTSUS.
(5) Entry of an instrument after the Director's approval of an application. Whenever an institution defers entry until after it receives a favorable final determination on the application for duty-free entry of the instrument, either by delaying importation or by placing the instrument in a bonded warehouse or foreign trade zone, the importer shall file with the entry of the instrument (i) the stamped copy of the form, (ii) the institution's copy of the favorable final determination and (iii) proof that a bona fide order for the merchandise was placed on or before the 60th day after the favorable decision became final pursuant to § 301.7 of these regulations. Liquidation in such case shall be made under subheading 9810.00.60, HTSUS.
(b)
(c)
(d)
(a) An instrument granted duty-free entry may be transferred from the applicant institution to another eligible institution provided the receiving institution agrees not to use the instrument for commercial purposes within 5 years of the date of entry of the instrument. In such cases title to the instrument must be transferred directly between the institutions involved. An institution transferring a foreign instrument entered under subheading 9810.00.60, HTSUS within 5 years of its entry shall so inform the Customs Port in writing and shall include the following information:
(1) The name and address of the transferring institution.
(2) The name and address of the transferee.
(3) The date of transfer.
(4) A detailed description of the instrument.
(5) The serial number of the instrument and any accompanying accessories.
(6) The entry number, date of entry, and port of entry of the instrument.
(b) Whenever the circumstances warrant, and occasionally in any event, the fact of continued use for 5 years for noncommercial purposes by the applicant institution shall be verified by Customs.
(c) If an instrument is transferred in a manner other than specified above or is used for commercial purposes within 5 years of entry, the institution for which such instrument was entered shall promptly notify the Customs officials at the Port and shall be liable for the payment of duty in an amount determined on the basis of its condition as imported and the rate applicable to it.
(a) An institution owning an instrument that was the subject of an entry liquidated duty-free under subheading 9810.00.60, HTSUS, that wishes to enter repair components or maintenance tools for that instrument may do so without regard to the application procedures required for entry under subheading 9810.00.60, HTSUS. The institution must certify to Customs officials at the port of entry that such components are repair components for that instrument under subheading 9810.00.65, HTSUS, or that the tools are maintenance tools necessary for the repair, checking, gauging or maintenance of that instrument under subheading 9810.00.67, HTSUS.
(b) Instruments entered under subheading 9810.00.60, HTSUS, and subsequently returned to the foreign manufacturer for repair, replacement or modification are not covered by subheading 9810.00.65 or 9810.00.67, HTSUS, although they may, upon return to the United States, be eligible for a reduced duty payment under subheading 9802.00.40 or 9802.00.50, HTSUS (covering articles exported for repairs or alterations) or may be made the subject of a new application under subheading 9810.00.60, HTSUS.
Pub. L. 97-446, 96 Stat. 2331 (19 U.S.C. 1202, note); Pub. L. 103-465, 108 Stat. 4991; Pub. L. 94-241, 90 Stat. 263 (48 U.S.C. 1681, note); Pub. L. 106-36, 113 Stat. 167; Pub. L. 108-429, 118 Stat. 2582.
Nomenclature changes to part 303 appear at 68 FR 56555, Oct. 1, 2003.
(a) This part implements the responsibilities of the Secretaries of Commerce and the Interior (“the Secretaries”) under Pub. L. 97-446, enacted on 12 January 1983, which substantially amended Pub. L. 89-805, enacted 10 November 1966, amended by Pub. L. 94-88, enacted 8 August 1975, and amended by Pub. L. 94-241, enacted 24 March 1976, amended by Public Law 103-465, enacted 8 December 1994 and amended by Public Law 108-429 enacted 3 December 2004. The law provides for exemption from duty of territorial watches and watch movements without regard to the value of the foreign materials they contain, if they conform with the provisions of U.S. Legal Note 5 to Chapter 91 of the Harmonized Tariff Schedule of the United States (“91/5”). 91/5 denies this benefit to articles containing any material which is the product of any country with respect to which Column 2 rates of duty apply; authorizes the Secretaries to establish the total quantity of such articles, provided that the quantity so established does not exceed 10,000,000 units or one-ninth of apparent domestic consumption, whichever is greater, and provided also that the quantity is not decreased by more than ten percent nor increased by more than twenty percent (or to more than 7,000,000 units, whichever is greater) of the quantity established in the previous year.
(b) The law directs the International Trade Commission to determine apparent domestic consumption for the preceding calendar year in the first year U.S. insular imports of watches and watch movements exceed 9,000,000 units. 91/5 authorizes the Secretaries to establish territorial shares of the overall duty-exemption within specified limits; and provides for the annual allocation of the duty-exemption among insular watch producers equitably and on the basis of allocation criteria, including minimum assembly requirements, that will reasonably maximize the net amount of direct economic benefits to the insular possessions.
(c) The amended law also provides for the issuance to producers of certificates entitling the holder (or any transferee) to obtain duty refunds on watches and watch movements and parts (except discrete watchcases) imported into the customs territory of the United States. The amounts of these certificates may not exceed specified percentages of the producers' verified creditable wages in the insular possessions (90% of wages paid for the production of the first 300,000 units and declining percentages, established by the Secretaries, of wages paid for incremental production up to 750,000 units by each producer) nor an aggregate annual amount for all certificates exceeding $5,000,000 adjusted for growth by the ratio of the previous year's gross national product to the gross national product in 1982. Refund requests are governed by regulations issued by the Department of Homeland Security. The Secretaries are authorized to issue regulations necessary to carry out their duties under Headnote 6 and may
(a)
(1)
(2)
(3)
(4)
(5) New firm is a watch firm not affiliated through ownership or control with any other watch duty-refund recipient. In assessing whether persons or parties are affiliated, the Secretaries will consider the following factors, among others: stock ownership; corporate or family groupings; franchise or joint venture agreements; debt financing; and close supplier relationships. The Secretaries may not find that control exists on the basis of these factors unless the relationship has the potential to affect decisions concerning production, pricing, or cost. Also, no watch duty-refund recipient may own or control more than one jewelry duty-refund recipient. A new entrant is a new watch firm which has received an allocation.
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13) Creditable wages, creditable fringe benefits and creditable duty differentials eligible for the duty refund benefit include, but are not limited to, the following:
(i) Wages up to an amount equal to 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the insular possessions employed in a firm's 91/5 watch and watch movement program.
(A) Wages paid for the repair of watches up to an amount equal to 85 percent of the firm's total creditable wages.
(B) Wages paid to watch and watch movement assembly workers involved in the complete assembly of watches and watch movements which have entered the United States duty-free and have complied with the laws and regulations governing the program.
(C) Wages paid to watch and watch movement assembly workers involved in the complete assembly of watches, excluding the movement, only in situations where the desired movement can not be purchased unassembled and the producer has documentation establishing this.
(D) Wages paid to those persons engaged in the day-to-day assembly operations on the premises of the company office, wages paid to administrative employees working on the premises of the company office, wages paid to security employees and wages paid to servicing and maintenance employees if these services are integral to the assembly and manufacturing operations and the employees are working on the premises of the company office.
(E) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations may be credited proportionally provided the firm maintains production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
(F) Wages paid to new permanent residents who have met the requirements of permanent residency in accordance with the Departments' regulations, along with meeting all other creditable wage requirements of the regulations, which must be documented and verified to the satisfaction of the Secretaries.
(ii) The combined creditable amount of individual health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 100 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the individual health plans weighted by the number of individual contracts in each plan. The yearly amount is calculated by the Office of Personnel Management and includes the “weighted average” of all individual health insurance costs for federal employees throughout the United States. The maximum life insurance allowed within this combined amount is $50,000 for each employee.
(A) The combined creditable amount of family health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 120 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the family health plans weighted by the number of family contracts in each plan. The yearly amount is calculated by the Office of Personnel Management and includes the “weighted average” of all family health insurance costs for federal employees throughout the United States. The maximum life insurance allowed within this combined amount is $50,000 for each employee.
(B) The creditable pension benefit, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, is up to 3 percent of the employee's wages unless the employee's wages exceed the maximum annual creditable wage allowed under the program (see paragraph (a)(13)(i) of this section). An employee earning more than the maximum creditable wage allowed under the program will be eligible for only 3 percent of the maximum creditable wage.
(iii) If tariffs on watches and watch movements are reduced, then companies would be required to provide the annual aggregate data by individual HTSUS watch tariff numbers for the following components contained therein: the quantity and value of watch cases, the quantity of movements, the quantity and value of each type of strap, bracelet or band, and the quantity and value of batteries shipped free of duty into the United States. If discrete watch movements are shipped free of duty into the United States, then the annual aggregate quantity by individual HTSUS movement tariff numbers would also be required along with the value of each battery if it is contained within. These data would be used to calculate the annual duty rate before each HTSUS tariff reduction, and the annual duty rate after the HTSUS tariff reduction. The amount of the difference would be creditable toward the duty refund. The tariff information would only be collected and used in the calculation of the annual
(14) Non-creditable wages and non-creditable fringe benefits. Wages ineligible for the duty refund benefit wages include, but are not limited to, the following:
(i) Wages over 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the territories employed in a firm's 91/5 watch and watch movement program.
(A) Wages paid for the repair of watches in an amount over 85 percent of the firm's total creditable wages.
(B) Wages paid for the assembly of watches and watch movements which are shipped outside the customs territory of the United States; wages paid for the assembly of watches and watch movements that do not meet the regulatory assembly requirements; or wages paid for the assembly of watches or watch movements that contain HTSUS column 2 components.
(C) Wages paid for the complete assembly of watches, excluding the movement, when the desired movement can be purchased unassembled, if the producer does not have adequate documentation, demonstrating to the satisfaction of the Secretaries, that the movement could not be purchased unassembled whether or not it is entering the United States.
(D) Wages paid to persons not engaged in the day-to-day assembly operations on the premises of the company office; wages paid to any outside consultants; wages paid to outside the office personnel, including but not limited to, lawyers, gardeners, construction workers, and accountants; wages paid to employees not working on the premises of the company office; and wages paid to employees who do not qualify as permanent residents in accordance with the Departments' regulations.
(E) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations if the producer does not maintain production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
(ii) Any costs, for the year in which the wages were paid, of the combined creditable amount of individual health and life insurance for employees over 100 percent of the “weighted average” yearly individual health insurance costs for all federal employees. The cost of any life insurance over the $50,000 limit for each employee.
(A) Any costs, for the year in which the wages were paid, of the combined creditable amount of family health and life insurance for employees over 120 percent of the “weighted average” yearly family health insurance costs for all federal employee. The cost of any life insurance over the $50,000 limit for each employee.
(B) The cost of any pension benefit per employee over 3 percent of the employee's creditable wages unless the employee's wages exceed the maximum annual creditable annual maximum creditable wage allowed under the program (
(15)
(16)
(17)
(b)
(2)
(3)
(4)
(5)
(a)
(b)
(2) Subject to paragraph (c) of this section, the total annual duty-exemption shall not be decreased by more than 10% of the quantity established for the preceding calendar year, or increased, if the resultant total is larger than 7,000,000, by more than 20% of the quantity established for the calendar year immediately preceding.
(3) The Secretaries shall determine the limit after considering the interests of the territories; the domestic or international trade policy objectives of the United States; the need to maintain the competitive nature of the territorial industry; the total contribution of the industry to the economic well-being of the territories; and the territorial industry's utilization of the total duty-exemption established in the preceding year.
(c)
(2) In addition to the limitations in paragraph (b) of this section, the Secretaries shall not establish a limit exceeding one-ninth of apparent domestic consumption if such consumption, as determined by International Trade Commission, exceeds 90 million units.
(a)
(b)
(2)
(3)
(4)
(a) Application forms (ITA-334P) shall be furnished to producers by January 1, and must be completed and returned to the Director no later than January 31, of each calendar year.
(b) All data supplied are subject to verification by the Secretaries and no allocation shall be made to producer until the Secretaries are satisfied that
(1) Work sheets used to answer all questions on the application form;
(2) Original records from which such data are derived;
(3) Records pertaining to ownership and control of the company and to the satisfaction of eligibility requirements of duty-free treatment of its product by the Bureau of Customs and Border Protection;
(4) Records pertaining to corporate income taxes, gross receipts taxes and excise taxes paid by each producer in the territories on the basis of which a portion of each producer's annual allocation is or may be predicated;
(5) Customs, bank, payroll, production records, and all shipping records including the importer of record number and proof of residency, as requested;
(6) Records on purchases of components, including documentation on the purchase of any preassembled movements, which demonstrate that such movements could not have been purchased from the vendor in an unassembled condition, and records on the sales of insular watches and movements, including proof of payment; and
(7) Any other records in the possession of the parent or affiliated companies outside the territory pertaining to any aspect of the producer's 91/5 watch assembly operation.
(8) All records pertaining to health insurance, life insurance and pension benefits for each employee; and
(9) If HTSUS tariffs on watches and watch movements are reduced, records of the annual aggregate data by individual HTSUS watch tariff numbers for the following components contained therein would be required: the quantity and value of watch cases; the quantity of movements; the quantity and value of each type of strap, bracelet or band; and the quantity and value of batteries shipped free of duty into the United States. In addition, if applicable, records of the annual aggregate quantity of discrete watch movements shipped free of duty into the United States by HTSUS tariff number.
(c) Data verification shall be performed in the territories, unless other arrangements satisfactory to the Departments are made in advance, by the Secretaries' representatives by the end of February of each calendar year. In the event a company cannot substantiate the data in its application before allocations must be calculated, the Secretaries shall determine which data will be used.
(d) Records subject to the requirements of paragraph (b), above, shall be retained for a period of two years following their creation.
(a)
(b)
(2) The excess of a producer's duty-exemption earned under the allocation
(c)
(d)
(e)
(f)
(1) The ability of the established industry to use the duty-exemption;
(2) Whether the duty-exemption is sufficient to support new entrant operations;
(3) The impact upon the established industry if new entrants are selected, particularly with respect to the effect on local employment, tax contributions to the territorial government, and the ability of the established industry to maintain satisfactory production levels; and
(4) Whether additional new entrants offer the best prospect for adding economic benefits to the territory.
(g) Section 303.14 of this part contains the criteria and formulae used by the Secretaries in calculating each watch producer's annual watch duty-exemption allocation, and other special rules or provisions the Secretaries may periodically adopt to carry out their responsibilities in a timely manner while taking into account changing circumstances. References to duty-exemptions, unless otherwise indicated, are to the amount available for reallocation in the current calendar year. Specifications of or references to data or bases used in the calculation of current year allocations (e.g., economic contributions and shipments) are, unless indicated otherwise, those which were generated in the previous year.
(h) The Secretaries may propose changes to § 303.14 at any time they consider it necessary to fulfill their responsibilities. Normally, such changes will be proposed towards the end of each calendar year. Interested parties
(a)
(2) Annual duty-exemption licenses shall be for only that portion of a producer's annual duty-exemption not previously licensed.
(3) If a producer's duty-exemption has been reduced, the Director shall not issue a replacement license for the reduced amount until the producer's previous license has been received for cancellation by the Director.
(4) A producer's license shall be used in their entirety, except when they expire or are cancelled, in order of their date of issuance, i.e., an interim license must be completely used before shipment permits can be issued against an interim supplemental license.
(5) Outstanding licenses issued by the Director automatically expire at midnight, December 31, of each calendar year. No unused allocation of duty-exemption may be carried over into the subsequent calendar year.
(6) The Director shall ensure that all licenses issued are conspicuously marked to show the type of license issued, the identity of the producer, and the year for which the license is valid. All licenses shall bear the signature of the Director.
(7) Each producer is responsible for the security of its licenses. The loss of a license shall be reported immediately to the Director. Defacing, tampering with, and unauthorized use of a license are forbidden.
(b)
(2) Each permit must specify the license and permit number, the number of watches and watch movements included in the shipment, the unused balance remaining on the producer's license, pertinent shipping information and must have the certification statement signed by an official of the licensee's company. A copy of the completed permit must be sent electronically or taken to the designated territorial government officials, no later than the day of shipment, for confirmation that the producer's duty-exemption license has not been exceeded and that the permit is properly completed.
(3) The permit (form ITA-340) shall be filed with Customs along with the other required entry documents to receive duty-free treatment unless the importer or its representative clears the documentation through Customs' automated broker interface. Entries made electronically do not require the submission of a permit to Customs, but the shipment data must be maintained as part of a producer's recordkeeping responsibilities for the period prescribed by Customs' recordkeeping regulations. Bureau of Customs and Border Protection Import Specialists may request the documentation they deem appropriate to substantiate claims for duty-free treatment, allowing a reasonable amount of time for the importer to produce the permit.
(a) The Secretaries may order a producer to show cause within 30 days of receipt of the order why the duty-exemption to which the firm would otherwise be entitled should not be cancelled, in whole or in part, if:
(1) At any time after June 30 of the calendar year:
(i) A producer's assembly and shipment record provides a reasonable basis to conclude that the producer will use less than 80 percent of its total
(ii) The producer refuses a request from the Departments to relinquish that portion of its allocation which they conclude will not be used;
(2) A producer fails to satisfy or fulfill any term, condition or representation, whether undertaken by itself or prescribed by the Departments, upon which receipt of allocation has been predicated or upon which the Departments have relied in connection with the sale or transfer of a business together with its allocation;
(3) A producer, in the judgment of the Secretaries, has failed to make a meaningful contribution to the territory for a period of two or more consecutive calendar years, when compared with the performance of the duty-free watch assembly industry in the territory as a whole. This comparison shall include the producer's quantitative use of its allocations, amount of direct labor employed in the assembly of watches and watch movements, and the net amount of corporate income taxes paid to the government of the territory. If the producer fails to satisfy the Secretaries as to why such action should not be taken, the firm's allocation shall be reduced or cancelled, whichever is appropriate under the show-cause order. The eligibility of a firm whose allocation has been cancelled to receive further allocations may also be terminated.
(b) The Secretaries may also issue a show-cause order to reduce or cancel a producer's allocation or production incentive certificate (see § 303.12, below), as appropriate, or to declare the producer ineligible to receive an allocation or certificate if it violates any regulation in this part, uses a form, license, permit, or certificate in an unauthorized manner, or fails to provide information or data required by these regulations or requested by the Secretaries or their delegates in the performance of their responsibilities.
(c) If a firm's allocation is reduced or cancelled, or if a firm voluntarily relinquishes a part of its allocation, the Secretaries may:
(1) Reallocate the allocation involved among the remaining producers in a manner best suited to contribute to the economy of the territory;
(2) Reallocate the allocation or part thereof to a new entrant applicant; or
(3) Do neither of the above if deemed in the best interest of the territories and the established industry.
(a) The sale or transfer of a duty-exemption from one firm to another shall not be permitted.
(b) The sale or transfer of a business together with its duty-exemption shall be permitted with prior written notification to the Departments. Such notification shall be accompanied by certifications and representations, as appropriate, that:
(1) If the transferee is a subsidiary of or in any way affiliated with any other company engaged in the production of watch movements components being offered for sale to any territorial producer, the related company or companies will continue to offer such watch and watch movement components on equal terms and conditions to all willing buyers and shall not engage in any practice, in regard to the sale of components, that competitively disadvantages the non-affiliated territorial producers
(2) The sale or transfer price for the business together with its duty-exemption does not include the capitalization of the duty-exemption
(3) The transferee is neither directly or indirectly affiliated with any other territorial duty-exemption holder in any territory;
(4) The transferee will not modify the watch assembly operations of the duty-exemption firm in a manner that will significantly diminish its economic contributions to the territory.
(c) At the request of the Departments, the transferee shall permit representatives of the Departments to inspect whatever records are necessary to establish to their satisfaction that the certifications and representations contained in paragraph (b) of this section have been or are being met.
(d) Any transferee who is either unwilling or unable to make the certifications and representations specified in
(a)
(2) Certificates shall not be issued to more than one company in the territories owned or controlled by the same corporate entity.
(b)
(2) All refund requests made pursuant to the certificates shall be entered on the reverse side of the certificate.
(3) Certificates shall be returned by registered, certified or express carrier mail to the Departments when:
(i) A refund is requested which exhausts the entitlement on the face of the certificate,
(ii) The certificate expires, or
(iii) The Departments request their return with good cause.
(4) Certificate entitlements may be transferred according to the procedures described in (c) of this section.
(c)
(2) Regulations issued by the Bureau of Customs and Border Protection, U.S. Department of Homeland Security, govern the refund of duties under Public Law 97-446, as amended by Public Law 103-465 and Public Law 108-429. If the Departments receive information
(3) The insular producer may transfer a portion of all of its certificate entitlement to another party by entering in block C of Form ITA-361P the name and address of the party.
(4) After a Form ITA-361P transferring a certificate entitlement to a party other than the certificate holder has been authenticated by the Department of Commerce, the form may be exchanged for any consideration satisfactory to the two parties. In all cases, authenticated forms shall be transmitted to the certificate holder or its authorized custodian for disposition (see paragraph (b) above).
(5) All disputes concerning the use of an authenticated Form ITA-361P shall be referred to the Departments for resolution. Any party named on an authenticated Form ITA-361P shall be considered an “interested party” within the meaning of § 303.13 of this part.
(a) Any official decision or action relating to the allocation of duty-exemptions or to the issuance or use of production incentive certificates may be appealed to the Secretaries by any interested party. Such appeals must be received within 30 days of the date on which the decision was made or the action taken in accordance with the procedures set forth in paragraph (b) of this section. Interested parties may petition for the issuance of a rule, or amendment or repeal of a rule issued by the Secretaries. Interested parties may also petition for relief from the application of any rule on the basis of hardship or extraordinary circumstances resulting in the inability of the petitioner to comply with the rule.
(b) Petitions shall bear the name and post office address of the petitioner and the name and address of the principal attorney or authorized representative (if any) for the party concerned. They shall be addressed to the Secretaries and filed in one original and two copies with the U.S. Department of Commerce, Import Administration, International Trade Administration, Washington, D.C. 20230, Attention: Statutory Import Programs Staff. Petitions shall contain the following:
(1) A reference to the decision, action or rule which is the subject of the petition;
(2) A short statement of the interest of the petitioner;
(3) A statement of the facts as seen by the petitioner;
(4) The petitioner's argument as to the points of law, policy of fact. In cases where policy error is contended, the alleged error together with the policy the submitting party advocates as the correct one should be described in full;
(5) A conclusion specifying the action that the petitioner believes the Secretaries should take.
(c) The Secretaries may at their discretion schedule a hearing and invite the participation of other interested parties.
(d) The Secretaries shall communicate their decision which shall be final, to the petitioner by registered mail.
(e) If the outcome of any petition materially affects the amount of the petitioner's allocation and if the Secretaries' consideration of the petition continues during the calculation of the annual allocations, the Secretaries shall set aside a portion of the affected territorial share in an amount which, in their judgment, protects the petitioner's interest and shall allocate the remainder among the other producers.
(a)
(i) Fifty percent of the territorial share shall be allocated on the basis of
(ii) Fifty percent of the territorial share shall be allocated on the basis of the number of units of watches and watch movements assembled in the territory and entered by each producer duty-free into the customs territory of the United States.
(2) If there is only one producer in a territory, the entire territorial share, excluding any amount set aside for possible new entrants, may be allocated without recourse to any distributive formula.
(b)
(2) Quartz analog watch movements must be assembled from parts knocked down to the maximum degree possible for the technical capabilities of the insular industry as a whole. The greatest degree of disassembly specified, for each manufacturer's brand and model, by any producer in any territory purchasing such brands and models shall constitute the disassembly required as a minimum for the industry as a whole.
(3) Watch movements and watches assembled from components with a value of more than $35 for watch movements and $800 for watches shall not be eligible for duty-exemption upon entry into the U.S. Customs territory. Value means the value of the merchandise plus all charges and costs incurred up to the last point of shipment (i.e., prior to entry of the parts and components into the territory).
(4) No producer shall accept from any watch parts and components supplier advantages and preferences which might result in a more favorable competitive position for itself vis-a-vis other territorial producers relying on the same supplier. Disputes under this paragraph may be resolved under the appeals procedures contained in § 303.13(b).
(c) Calculation of the value of production incentive certificates. (1) The value of each producer's certificate shall equal the producer's average creditable wages per unit shipped (including non-91/5 units as provided for in § 303.2(a)(13)) multiplied by the sum of:
(i) The number of units shipped up to 300,000 units times a factor of 90%; plus
(ii) Incremental units shipped up to 450,000 units times a factor of 85%; plus
(iii) Incremental units shipped up to 600,000 times a factor of 80%; plus
(iv) Incremental shipments up to 750,000 units times a factor of 75%.
(2) The Departments may make adjustments for these data in the manner set forth in § 303.5(c).
(d)
(e)
(a) This subpart implements the responsibilities of the Secretaries of Commerce and the Interior (“the Secretaries”) under Pub. L. 106-36, enacted 25 June 1999 which substantially
(b) The amended law provides for the issuance of certificates to insular jewelry producers who have met the requirements of the laws and regulations, entitling the holder (or any transferee) to obtain refunds of duties on watches and watch movements and parts (except discrete watch cases) imported into the customs territory of the United States. The amounts of these certificates may not exceed specified percentages of the producers' verified creditable wages in the insular possessions (90% of wages paid for the production of the first 300,000 duty-free units and declining percentages, established by the Secretaries, of wages paid for incremental production up to 750,000 units by each producer) nor an aggregate annual amount for all certificates exceeding $5,000,000 adjusted for growth by the ratio of the previous year's gross national product to the gross national product in 1982. However, the law specifies that watch producer benefits are not to be diminished as a consequence of extending the duty refund to jewelry manufacturers. In the event that the amount of the calculated duty refunds for watches and jewelry exceeds the total aggregate annual amount that is available, the watch producers shall receive their calculated amounts and the jewelry producers would receive amounts proportionately reduced from the remainder. Refund requests are governed by regulations issued by the Department of Homeland Security (
(c) Section 2401(a) of Pub. L. 106-36 and additional U.S. note 5 to chapter 91 of the HTSUS authorize the Secretaries to issue regulations necessary to carry out their duties. The Secretaries may cancel or restrict the certificate of any insular manufacturer found violating the regulations.
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7) Unit of Jewelry means a single article (
(8)
(9) Creditable wages and creditable fringe benefits eligible for the duty refund benefit include, but are not limited to, the following:
(i) Wages up to an amount equal to 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the insular possessions employed in a firm's manufacture of HTSUS heading 7113 articles of jewelry which are a product of the insular possessions and have met the Bureau of Customs and Border Protection's criteria for duty-free entry into the United States, plus any wages paid for the repair of non-insular HTSUS heading 7113 jewelry up to an amount equal to 50 percent of the firm's total creditable wages.
(A) Wages paid to persons engaged in the day-to-day assembly operations at the company office, wages paid to administrative employees working on the premises of the company office, wages paid to security operations employees and wages paid to servicing and maintenance employees if these services are integral to the assembly and manufacturing operations and the employees are working on the premises of the company office.
(B) Wages paid to permanent residents who are employees of a new company involved in the jewelry assembly and jewelry manufacturing of HTSUS heading 7113 jewelry for up to 18 months after such jewelry company commences jewelry manufacturing or jewelry assembly operations in the insular possessions.
(C) Wages paid when a maximum of two producers work on a single piece of HTSUS heading 7113 jewelry which entered the United States free of duty under the program. Wages paid by the two producers will be credited proportionally provided both producers demonstrate to the satisfaction of the Secretaries that they worked on the same piece of jewelry, the jewelry received duty-free treatment into the customs territory of the United States, and the producers maintained production and payroll records sufficient for the Departments' verification of the creditable wage portion (
(D) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations may be credited proportionally provided the firm maintains production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
(E) Wages paid to new permanent residents who have met the requirements of permanent residency in accordance with the Departments' regulations along with meeting all other creditable wage requirements of the regulations, which must be documented and verified to the satisfaction of the Secretaries.
(ii) The combined creditable amount of individual health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 100 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the individual health plans
(A) The combined creditable amount of family health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 120 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the family health plans weighted by the number of family contracts in each plan. The yearly amount is calculated by the Office of Personnel Management and includes the “weighted average” of all family health insurance costs for federal employees throughout the United States. The maximum life insurance allowed within this combined amount is $50,000 dollars for each employee.
(B) The creditable pension benefit, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, is up to 3 percent of the employee's wages unless the employee's wages exceed the maximum annual creditable wage allowed under the program (see paragraph (a)(9)(i) of this section). An employee earning more than the maximum creditable wage allowed under the program will be eligible for only 3 percent of the maximum creditable wage.
(10) Non-creditable wages and non-creditable fringe benefits. Wages ineligible for the duty refund benefit include, but are not limited to, the following:
(i) Wages over 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the territories employed in a firm's 91/5 heading 7113, HTSUS, jewelry program.
(A) Wages paid for the repair of jewelry in an amount over 50 percent of the firm's total creditable wages.
(B) Wages paid to employees who are involved in assembling HTSUS heading 7113 jewelry beyond 18 months after such jewelry company commences jewelry manufacturing or jewelry assembly operations in the insular possessions if the jewelry does not meet the Bureau of Customs and Border Protection's substantial transformation requirements and other criteria for duty-free enter into the United States.
(C) Wages paid for the assembly and manufacturing of jewelry which is shipped to places outside the customs territory of the United States; wages paid for the assembly and manufacturing of jewelry that does not meet the regulatory assembly requirements; or wages paid for the assembly and manufacture of jewelry that contain HTSUS column 2 components.
(D) Wages paid to those persons not engaged in the day-to-day assembly operations on the premises of the company office, wages paid to any outside consultants, wages paid to outside the office personnel, including but not limited to, lawyers, gardeners, construction workers and accountants; wages paid to employees not working on the premises of the company office and wages paid to employees who do not qualify as permanent residents in accordance with the Departments' regulations.
(E) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations if the producer does not maintain production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
(ii) Any costs, for the year in which the wages were paid, of the combined creditable amount of individual health and life insurance for employees over 100 percent of the “weighted average” yearly individual health insurance costs for all federal employees. The cost of any life insurance over the $50,000 limit for each employee.
(A) Any costs, for the year in which the wages were paid, of the combined creditable amount of family health and life insurance for employees over 120 percent of the “weighted average”
(B) The cost of any pension benefit per employee over 3 percent of the employee's creditable wages unless the employee's wages exceed the maximum annual creditable annual maximum creditable wage allowed under the program (
(11)
(12)
(b)
(2)
(3)
(a) Form ITA-334P shall be furnished to producers by January 1 and must be completed and returned to the Director no later than January 31 of each calendar year.
(b) All data supplied are subject to verification by the Secretaries and no duty refund shall be made to producers until the Secretaries are satisfied that the data are accurate. To verify the data, representatives of the Secretaries shall have access to relevant company records including, but not limited to:
(1) Work sheets used to answer all questions on the application form, as specified by the instructions;
(2) Original records from which such data are derived;
(3) Records pertaining to ownership and control of the company;
(4) Records pertaining to all duty-free and dutiable shipments of HTSUS 7113 jewelry, including Customs entry documents, or the certificate of origin for the shipment, or, if a company did not receive such documents from Customs, a certification from the consignee that the jewelry shipment received duty-free treatment, or a certification from the producer, if the producer can attest that the jewelry shipment received duty-free treatment;
(5) Records pertaining to corporate income taxes, gross receipts taxes and excise taxes paid by each producer in the territories;
(6) Customs, bank, payroll, production records, and all shipping records including the importer of record number and proof of residency, as requested;
(7) All records pertaining to health insurance, life insurance and pension benefits for each employee;
(8) Records on purchases of components and sales of jewelry, including proof of payment; and
(9) Any other records in the possession of the parent or affiliated companies outside the territory pertaining to any aspect of the producer's jewelry operations.
(c) Data verification shall be performed in the territories, unless other arrangements satisfactory to the Departments are made in advance, by the Secretaries' representatives by the end of February of each calendar year. In the event a company cannot substantiate the data in its application, the Secretaries shall determine which data will be used.
(d) Records subject to the requirements of paragraph (b) of this section, shall be retained for a period of two years following their creation.
(a) The sale or transfer of a business together with its duty refund entitlement shall be permitted with prior written notification to the Departments. Such notification shall be accompanied by certifications and representations, as appropriate, that:
(1) The transferee is neither directly nor indirectly affiliated with any other territorial duty refund jewelry recipient in any territory;
(2) The transferee will not modify the jewelry operations in a manner that will significantly diminish its economic contributions to the territory.
(b) At the request of the Departments, the transferee shall permit representatives of the Departments to inspect whatever records are necessary to establish to their satisfaction that the certifications and representations contained in paragraph (a) of this section have been or are being met.
(c) Any transferee who is either unwilling or unable to make the certifications and representations specified in paragraph (a) of this section shall secure the Departments' approval in advance of the sale or transfer of the business. The request for approval shall specify which of the certifications specified in paragraph (a) of this section the firm is unable or unwilling to make, and give reasons why such fact should not constitute a basis for the Departments' disapproval of the sale or transfer.
(a)
(2) Certificates shall not be issued to more than one jewelry company in the territories owned or controlled by the same corporate entity.
(b)
(2) All refund requests made pursuant to the certificates shall be entered on the reverse side of the certificate.
(3) Certificates shall be returned by registered, certified or express carrier mail to the Department of Commerce when:
(i) A refund is requested which exhausts the entitlement on the face of the certificate,
(ii) The certificate expires, or
(iii) The Departments request their return with good cause.
(4) Certificate entitlements may be transferred according to the procedures described in paragraph (c) of this section.
(c)
(2) Regulations issued by the Bureau of Customs and Border Protection, U.S. Department of Homeland Security, govern the refund of duties under 19 CFR 7.4. If the Departments receive information from the Bureau of Customs and Border Protection that a producer has made unauthorized use of any official form, they may cancel the affected certificate.
(3) The territorial producer may transfer a portion of all of its certificate entitlement to another party by entering in block C of Form ITA-361P the name and address of the party.
(4) After a Form ITA-361P transferring a certificate entitlement to a party other than the certificate holder has been authenticated by the Department of Commerce, the form may be exchanged for any consideration satisfactory to the two parties. In all cases, authenticated forms shall be transmitted to the certificate holder or its authorized custodian for disposition (
(5) All disputes concerning the use of an authenticated Form ITA-361P shall be referred to the Departments for resolution. Any party named on an authenticated Form ITA-361P shall be considered an “interested party” within the meaning of § 303.21 of this part.
(a) Territorial jewelry producers are entitled to duty refund certificates only for jewelry that they produce which is provided for in heading 7113, HTSUS, is a product of a territory and otherwise meets the requirements for duty-free entry under General Note 3 (a)(iv), HTSUS, and 19 CFR 7.3.
(1) An article of jewelry is considered to be a product of a territory if:
(i) The article is wholly the growth or product of the territory; or
(ii) The article became a new and different article of commerce as a result of production or manufacture performed in the territories.
(2) Eighteen month exemption. Any article of jewelry provided for in HTSUS heading 7113, assembled in the insular possessions by a new entrant jewelry manufacturer shall be treated as a product of the insular possessions if such article is entered into the customs territory of the United States no later than 18 months after such producer commences jewelry manufacturing or jewelry assembly operations in the insular possessions.
(b) Calculation of the value of production incentive certificates. (1) The value of each producer's certificate shall equal the producer's average creditable wages per unit shipped free of duty into the United States multiplied by the sum of:
(i) The number of units shipped up to 300,000 units times a factor of 90%; plus
(ii) Incremental units shipped up to 3,533,334 units times a factor of 85%; plus
(iii) Incremental units shipped up to 6,766,667 times a factor of 80%; plus
(iv) Incremental shipments up to 10,000,000 units times a factor of 75%.
(2) The Departments may make adjustments for these data in the manner set forth in § 303.17(c).
(a) Any official decision or action relating to the issuance or use of production incentive certificates may be appealed to the Secretaries by any interested party. Such appeals must be received within 30 days of the date on which the decision was made or the action taken in accordance with the procedures set forth in paragraph (b) of this section. Interested parties may petition for the issuance of a rule, or amendment or repeal of a rule issued by the Secretaries. Interested parties may also petition for relief from the application of any rule on the basis of hardship or extraordinary circumstances resulting in the inability of the petitioner to comply with the rule.
(b) Petitions shall bear the name and post office address of the petitioner and the name and address of the principal attorney or authorized representative (if any) for the party concerned. They shall be addressed to the Secretaries and filed in one original and two copies with the U.S. Department of Commerce, Import Administration, International Trade Administration, Washington, DC 20230, Attention: Statutory Import Programs Staff. Petitions shall contain the following:
(1) A reference to the decision, action or rule which is the subject of the petition;
(2) A short statement of the interest of the petitioner;
(3) A statement of the facts as seen by the petitioner;
(4) The petitioner's argument as to the points of law, policy or fact. In cases where policy error is contended, the alleged error together with the policy the submitting party advocates as the correct one should be described in full;
(5) A conclusion specifying the action that the petitioner believes the Secretaries should take.
(c) The Secretaries may at their discretion schedule a hearing and invite the participation of other interested parties.
(d) The Secretaries shall communicate their decision, which shall be final, to the petitioner by registered, certified or express mail.
Pub. L. 91-269, 84 Stat. 271 (22 U.S.C. 2801
The regulations in this part are issued under the authority of Pub. L. 91-269 (84 Stat. 271, 22 U.S.C. 2801 et seq.) which establishes an orderly procedure for Federal Government recognition of, and participation in, international expositions to be held in the United States. The Act provides, inter alia, that Federal recognition of an exposition is to be granted upon a finding by the President that such recognition will be in the national interest. In making this finding, the President is directed to consider, among other factors, a report from the Secretary of Commerce as to the purposes and reasons for an exposition and the extent of financial and other support to be provided by the State and local officials and business and community leaders where the exposition is to be held, and a report by the Secretary of State to determine whether the exposition is qualified for registration under Bureau of International Expositions (BIE) rules. The BIE is an international organization established by the Paris Convention of 1928 (T.I.A.S. 6548 as amended by T.I.A.S. 6549) to regulate the conduct and scheduling of international expositions in which foreign nations are officially invited to participate. The BIE divides international expositions into different categories and types and requires each member nation to observe specified minimum time intervals in scheduling each of these categories and types of expositions.
The BIE frequency rules require that an interval of 15 years must elapse between General Expositions of the First Category held in one country. General Expositions of the Second Category require an interval of 10 years. An interval of 5 years must ordinarily elapse between Special Category Expositions of the same kind in one country or three months between Special Category Expositions of different kinds. These frequency intervals are computed from the date of the opening of the exposition.
More detailed BIE classification criteria and regulations are contained in the Paris Convention of 1928, as amended in 1948 and 1966. Applicants not having a copy of the text of this convention may obtain one by writing the Director. (The Convention may soon be amended by a Protocol which has been approved by the BIE and ratified by the United States. This amendment would increase authorized frequencies or intervals for BIE approved expositions.)
For the purpose of this part, except where the context requires otherwise:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a) Applications for Federal recognition of an exposition shall be filed with, and all official communications in connection therewith addressed to, the International Expositions Staff, International Trade Administration, Department of Commerce, Washington, DC 20230.
(b) Every application, exhibit, or enclosure, except where specifically waived by the Director, shall be in quadruplicate, duly authenticated and referenced.
(c) Every application shall be in letter form and shall contain the date, address, and official designation of the applicant and shall be signed by an authorized officer or individual.
(d) Every application, except where specifically waived by the Director, shall be accompanied by the following exhibits:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
(a) Upon receipt of an application, the Director will analyze the application and all accompanying exhibits to insure compliance with the provisions of § 310.3 and report his findings with respect thereto to the Secretary.
(b) If more than one applicant applies for Federal recognition for expositions to be held within three years or less of each other, the applications will be reviewed concurrently by the Director. The following standards will be considered in determining which if any of the competing applicants will be recommended for Federal recognition:
(1) The order of receipt of the applications by the Director, complete with all exhibits required by § 310.3.
(2) The financial plans of the applications. Primary consideration will be given to those applications which do not require Federal financing for exposition development. This does not extend to funding for a Federal pavilion, if one is desired.
(3) The relative merit of the applications in terms of their qualifications as tourism destination sites, both with respect to existing facilities and those facilities planned for the proposed exposition. If necessary, to assist in making this determination, the Director will appoint a panel of travel industry experts representing tour developers, the transportation, entertainment and hotel/motel industries for the purpose of studying the competing applications and reporting to the Director its views as to which proposed site best meets the above criteria. If such a panel is deemed necessary, the provisions of the Federal Advisory Committee Act (86 Stat. 770, 5 U.S.C. App. I) will be applicable.
(c) In analyzing the applications, the Director may hold public hearings with the objective of clarifying issues that might be raised by the application. If desired, the Director may utilize the services of an examiner.
(d) If the Director, in his discretion, decides to hold a public hearing, notice of such hearing shall be published in the
(e) The following general procedure shall govern the conduct of public hearings: (1) Stenographic minutes of the proceedings shall be made; (2) the names and addresses of all parties present or represented at the hearing shall be recorded; and (3) the Director or Examiner shall read aloud for the record and for the benefit of the public such parts of the Act and of these regulations as bear on the application. He shall also read aloud for the record and for the benefit of the public such other important papers, or extracts therefrom, as may be necessary for a full understanding of the issues which require clarification. The Director or Examiner shall impress upon the parties in attendance at the public hearing, and shall specifically state at the commencement of the hearing, that the hearing is not adversary in nature and that the sole objective thereof is to clarify issues that might have been raised by the application.
(f) Statements of interested parties may be presented orally at the hearing, or submitted in writing for the record.
(g) Within six months after receipt of a fully completed application and/or the adjournment of the public hearing, the Director shall submit his report containing his findings on the application to the Secretary.
If the Director's report recommends Federal recognition, the Secretary, within a reasonable time, shall submit a report to the President.
(a) The Secretary's report shall include: (1) An evaluation of the purposes and reasons for the exposition; and (2) a determination as to whether guaranteed financial and other support has been secured by the exposition from affected State and local governments and from business and civic leaders of the region and others in amounts sufficient to assure the successful development and progress of the exposition.
(b) Based on information from, and coordination with the Department of Commerce the Secretary of State shall also file a report with the President that the exposition qualifies for recognition by the BIE.
If the President concurs in the favorable reports from the Secretaries of State and Commerce, he may grant Federal recognition to the exposition by indicating his concurrence to the two Secretaries and authorizing them to seek BIE registration.
If Federal participation in the exposition, as well as Federal recognition thereof is desired, the applicant shall in a statement to the Director outline the nature of the Federal participation
1.
2.
3.
4.
5.
6.
(a) Upon receipt of the statement, and the exhibits referred to in § 310.7, the Director shall prepare a proposed plan in cooperation with other interested departments and agencies of the Federal Government for Federal participation in the exposition.
(b) In preparing the proposed plan for Federal participation in the exposition, the Director shall conduct a feasibility study of Federal participation including cost estimates by utilizing the services within the Federal Government, professional consultants and private sources as required and in accordance with applicable laws and regulations.
(c) The Director, in the proposed plan for Federal participation in the exposition, shall determine whether or not a Federal pavilion should be constructed and, if so, whether or not the Government would have need for a permanent structure in the area of the exposition or whether a temporary structure would be more appropriate.
(d) The Director shall seek the advice of the Administrator of the General Services Administration to the extent necessary in carrying out the proposed plan for Federal participation in the exposition.
(e) Upon completion of the proposed plan for Federal participation in the exposition, the Director shall submit the plan to the Secretary.
Upon receipt of the Director's proposed plan for Federal participation, the Secretary, within a reasonable time, shall submit a report to the President including: (a) Evidence that the exposition has met the criteria for Federal recognition and has been so recognized; (b) a statement that the exposition has been registered by the BIE; and (c) a proposed plan for the Federal participation referred to in § 310.8.
Headnote 2, subpart B, part 6, schedule 6, Tariff Schedules of the United States (19 U.S.C. 1202); sec. 501(2) of Title V, Automotive Products Trade Act of 1965 (19 U.S.C. 2031).
The purpose of this part is to set forth regulations implementing headnote 2 to subpart B, part 6, schedule 6 of the Tariff Schedules of the United States as proclaimed by Proclamation No. 3682 of October 21, 1965 (3 CFR 140-65 Comp.). issued pursuant to the Automotive Products Trade Act of 1965 (19 U.S.C. 2031), by establishing a procedure under which a person may apply to be determined a bona fide motor-vehicle manufacturer. Under headnote 2 to subpart B, part 6, schedule 6 of the Tariff Schedules of the United States, whenever the Secretary of Commerce has determined a person to be a bona fide motor-vehicle manufacturer, such person is eligible to obtain duty-free importation of certain Canadian articles and to issue certain orders, contracts, or letters of intent under or pursuant to which other persons, not themselves bona fide motor-vehicle manufacturers, may obtain duty-free treatment for such Canadian articles. The responsibilities of Secretary of Commerce relating to the development, maintenance and publication of a list of bona fide motor-vehicle manufacturers and the authority to promulgate rules and regulations pertaining thereto have been delegated to Under Secretary for International Trade, Department of Commerce pursuant to Department of Commerce Organization Order 40-1, Amendment 9 of January 22, 1984 (49 FR 4538).
For the purpose of the regulations in this part and the forms issued to implement it:
(a)
(b)
(c)
(d)
(e)
(f)
Any person in the United States desiring to be determined a bona fide motor vehicle manufacturer shall apply to the Under Secretary by filing two copies of Form BIE-3 in accordance with the instructions set forth on the form and this part. Application forms may be obtained from the Under Secretary, District offices of the U.S. Department of Commerce, or from U.S. Collectors of Customs, and should be mailed or delivered to the:
(a) As soon as practicable after receipt of the application, the Under Secretary shall determine whether an applicant has produced no fewer than 15 complete motor vehicles in the United States during the 12-month period preceding the date certified in the application and as of such date, had installed capacity in the United States to produce 10 or more complete motor vehicles per 40 hour week. The Under Secretary may request such additional data from an applicant as he may deem appropriate to establish whether the applicant has satisfied the requirements of this part.
(b) A determination by the Under Secretary under this part shall be effective for a 12-month period to begin on the date as of which the Under Secretary determines that the applicant qualified under this part. Within 60 days prior to the termination of such period, a bona fide motor vehicle manufacturer may apply for another determination under this part.
(c) The Under Secretary will promptly notify each applicant in writing of the final action taken on his application.
The Under Secretary shall maintain and publish from time to time in the
Title III of the Export Trading Company Act, Pub. L. 97-290 (96 Stat. 1240-1245, 15 U.S.C. 4011-4021).
This part contains regulations for issuing export trade certificates of review under title III of the Export Trading Company Act, Pub. L. 97-290. A holder of a certificate of review and the members named in the certificate will have specific protections from private treble damage actions and government criminal and civil suits under U.S. Federal and State antitrust laws for the export conduct specified in the certificate and carried out during its effective period in compliance with its terms and conditions.
As used in this part:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(1) business, repair, and amusement services,
(2) management, legal, engineering, architectural, and other professional services, and
(3) financial, insurance, transportation, informational and any other data-based services, and communication services.
(q)
(a)
(b)
(1) Name and principal address of the applicant and of its controlling entity, if any. Include the name, title, address, telephone number, and relationship to the applicant of each individual to whom the Secretary should address correspondence.
(2) The name and principal address of each member, and of each member's controlling entity, if any.
(3) A copy of any legal instrument under which the applicant is organized or will operate. Include copies, as applicable, of its corporate charter, bylaws, partnership, joint venture, membership or other agreements or contracts under which the applicant is organized.
(4) A copy of the applicant's most recent annual report, if any, and that of its controlling entity, if any. To the extent the information is not included in the annual report, or other documents submitted in connection with the application, a description of the applicant's domestic (including import) and export operations, including the nature of its business, the types of products or services in which it deals, and the places where it does business. This description may be supplemented by a chart or table.
(5) A copy of each member's most recent annual report, if any, and that of its controlling entity, if any. To the extent the information is not included in the annual report, or other documents submitted in connection with the application, a description of each member's domestic (including import) and export operations, including the nature of its business, the types of products or services in which it deals, and the places where it does business. This description may be supplemented by a chart or table.
(6) The names, titles, and responsibilities of the applicant's directors, officers, partners and managing officials, and their business affiliations with other members or other businesses that produce or sell any of the types of goods or services described in paragraph (b)(7) of this section.
(7)(i) A description of the goods or services which the applicant exports or proposes to export under the certificate of review. This description should reflect the industry's customary definitions of the products and services.
(ii) If it is reasonably available, an identification of the goods or services according to the Standard Industrial Classification (SIC) number. Goods should normally be identified according to the 7-digit level. Services should normally be identified at the most detailed SIC level available.
(iii) The foreign geographic areas to which the applicant and each member export or intend to export their goods and services.
(8) For each class of the goods, wares, merchandise or services described in paragraph (b)(7) of this section:
(i) The principal geographic area or areas in the United States in which the applicant and each member sell their goods and services.
(ii) For their previous two fiscal years, the dollar value of the applicant's and each member's (A) total domestic sales, if any; and (B) total export sales, if any. Include the value of the sales of any controlling entities and all entities under their control.
(9) For each class of the goods, wares, merchandise or services described in paragraph (b)(7) of this section, the best information or estimate accessible to the applicant of the total value of sales in the United States by all companies for the last two years. Identify the source of the information or the basis of the estimate.
(10) A description of the specific export conduct which the applicant seeks to have certified. Only the specific export conduct described in the application will be eligible for certification. For each item, the applicant should state the antitrust concern, if any, raised by that export conduct. (Examples of export conduct which applicants may seek to have certified include the manner in which goods and services will be obtained or provided; the manner in which prices or quantities will be set; exclusive agreements with U.S. suppliers or export intermediaries; territorial, quantity, or price agreements with U.S. suppliers or export intermediaries; and restrictions on membership or membership withdrawal. These examples are given only to illustrate the type of export conduct which might be of concern. The specific activities
(11) If the export trade, export trade activities, or methods of operation for which certification is sought will involve any agreement or any exchange of information among suppliers of the same or similar products or services with respect to domestic prices, production, sales, or other competitively sensitive business information, specify the nature of the agreement or exchange of information. Such information exchanges are not necessarily impermissible and may be eligible for certification. Whether or not certification is sought for such exchanges, this information is necessary to evaluate whether the conduct for which certification is sought meets the standards of the Act.
(12) A statement of whether the applicant intends or reasonably expects that any exported goods or services covered by the proposed certificate will re-enter the United States, either in their original or modified form. If so, identify the goods or services and the manner in which they may re-enter the U.S.
(13) The names and addresses of the suppliers of the goods and services to be exported (and the goods and services to be supplied by each) unless the goods and services to be exported are to be supplied by the applicant and/or its members.
(14) A proposed non-confidential summary of the export conduct for which certification is sought. This summary may be used as the basis for publication in the
(15) Any other information that the applicant believes will be necessary or helpful to a determination of whether to issue a certificate under the standards of the Act.
(16) (Optional) A draft proposed certificate.
(c) The applicant must sign the application and certify that (1) each member has authorized the applicant to submit the application, and (2) to the best of its belief the information in the application is true, correct, and fully responsive.
(d)
(e)
(f)
(g)
(a) When these regulations require action to be taken within a fixed time period, and the last day of the time period falls on a non-working day, the time period shall be extended to the next working day.
(b) The day after an application is deemed submitted shall be deemed the first of the days within which the Secretary must make a determination on the application.
(a)
(b)
(1) Result in neither a substantial lessening of competition or restraint of trade within the United States nor a substantial restraint of the export trade of any competitor of the applicant;
(2) Not unreasonably enhance, stabilize, or depress prices within the United States of the class of the goods, wares, merchandise or services exported by the applicant;
(3) Not constitute unfair methods of competition against competitors who are engaged in the export of goods, wares, merchandise or services of the class exported by the applicant; and
(4) Not include any act that may reasonably be expected to result in the sale for consumption or resale within the United States of the goods, wares, merchandise, or services exported by the applicant.
(c)
(2) Not later than thirty days before the day a determination on the application is due, the Secretary shall deliver a proposed certificate to the Attorney General for discussion and comment. If the Attorney General does not agree that the proposed certificate may be issued, he shall, not later than ten days before the day a determination on the application is due, so advise the Secretary and state the reasons for the disagreement. The Secretary with the concurrence of the Attorney General, may modify or revise the proposed certificate to resolve the objections and problems raised by the Attorney General, or deny the application.
(3) If the Attorney General receives the proposed certification by the date specified in the preceding paragraph and does not respond within the time period specified in that paragraph, he shall be deemed to concur in the proposed certificate.
(d)
(e)
(f)
(a) Within ten days after an application is deemed submitted, the Secretary shall deliver to the
(b) If a certificate is issued, the Secretary shall publish a summary of the certification in the
(c) If the Secretary initiates proceedings to revoke or modify a certificate, he shall publish a notice of his final determination in the
(d) If the applicant requests reconsideration of a determination to deny an application, in whole or in part, the Secretary shall publish notice of his final determination in the
An application for an amendment to a certificate shall be treated in the same manner as an original application. The application for an amendment shall set forth the proposed amendment(s) and the reasons for them. It shall contain any information specified in § 325.3(b) that is relevant to the determination on the application for an amendment. The effective date of an amendment will be the date on which the application for the amendment was deemed submitted.
(a)
(2) The Secretary shall advise the applicant within ten days after the application is deemed submitted whether it will receive expedited action. The Secretary may grant the request in whole or in part and process the remainder of the application through the normal procedures. Expedited action may be granted only if the Attorney General concurs.
(b)
(c)
(2) If the Attorney General receives the proposed certificate by the date specified in the preceding paragraph and does not respond within the time period specified in that paragraph, he shall be deemed to concur in the proposed certificate.
(a) If the Secretary determines to deny an application in whole or in part, he shall notify the applicant in writing of his decision and the reasons for his determination.
(b) Within thirty days after receiving a notice of denial, the applicant may request the Secretary to reconsider his determination.
(1) The request for reconsideration shall include a written statement setting forth the reasons why the applicant believes the decision should be reconsidered, and any additional information that the applicant considers relevant.
(2) Upon the request of the applicant, the Secretary and the Attorney General will meet informally with the applicant and/or his representative to discuss the applicant's reasons why the determination on the application should be changed.
(c) The Secretary shall consult with the Attorney General with regard to reconsidering an application. The Secretary may modify his original determination only if the Attorney General concurs.
(d) The Secretary shall notify the applicant in writing of his final determination after reconsideration and of his reasons for the determination within thirty days after the request for reconsideration has been received.
(a)
(1) The export conduct of a person or entity protected by the certificate no longer complies with the requirements set forth in § 325.4(b);
(2) A person or entity protected by the certificate fails to comply with a request for information under paragraph (b) of this section; or
(3) The certificate holder fails to file a complete annual report.
(b)
(c)
(2)
(3)
(4)
(d)
(a)
(b) For purposes of judicial review, determinations of the Secretary are final when notice is published in the
(c)
(d)
(a) Upon the denial or withdrawal of an application for a certificate in its entirety, the applicant may request the return of all copies of the documents submitted by the applicant in connection with the application to the Department of Commerce or the Department of Justice. The applicant shall submit this request in writing to both the Secretary and the Attorney General.
(b) The Secretary and the Attorney General shall return the documents to the applicant within thirty days after they receive the applicant's request.
If the Secretary denies, in whole or in part, an application for a certificate or for an amendment to a certificate, or revokes or amends a certificate, neither the negative determination nor the statement of reasons therefor shall be admissible in evidence in any administrative or judicial proceeding in support of any claim under the antitrust laws.
(a) Not later than each anniversary of a certificate's effective date, the Secretary shall notify the certificate holder of the information to be included in the annual report. This report shall contain any changes relevant to the matters specified in the certificate, an update of the information contained in the application brought current to the anniversary date, and any other information the Secretary considers appropriate, after consultation with the Attorney General.
(b) Not later than forty-five days after each anniversary of a certificate's effective date, a certificate holder shall submit its annual report to the Secretary. The Secretary shall deliver a copy of the annual report to the Attorney General.
(c) Failure to submit a complete annual report may be the basis for modification or revocation of a certificate.
A certificate holder may relinquish a certificate at any time through written notice to the Secretary. The certificate will cease to be effective on the day the Secretary receives the notice.
(a) Any information that is submitted by any person under the Act is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552).
(b)(1) Except as authorized under paragraph (b)(3) of this section, no officer or employee of the United States shall disclose commercial or financial information submitted under this Act if the information is privileged or confidential, and if disclosing the information would cause harm to the person who submitted it.
(2) A person submitting information shall designate the documents or information which it considers privileged or confidential and the disclosure of which would cause harm to the person submitting it. The Secretary shall endeavor to notify these persons of any requests or demands before disclosing any of this information.
(3) An officer or employee of the United States may disclose information covered under paragraph (b)(1) of this section only under the following circumstances—
(i) Upon a request made by either House of Congress or a Committee of the Congress,
(ii) In a judicial or administrative proceeding subject to issuance of an appropriate protective order,
(iii) With the written consent of the person who submitted the information,
(iv) When the Secretary considers disclosure of the information to be necessary for determining whether or not
(A) The Secretary determines that a non-confidential summary of the information is inadequate; and
(B) The person who submitted the information is informed of the intent to disclose the information, and has an opportunity to advise the Secretary of the potential harm which disclosure may cause,
(v) In accordance with any requirement imposed by a statute of the United States.
(c) In any judicial or administrative proceeding in which disclosure is sought from the Secretary or the Attorney General of any confidential or privileged documents or information submitted under this Act, the Secretary or Attorney General shall attempt to notify the party who submitted the information of the request or demand for disclosure. In appropriate circumstances the Secretary or Attorney General may seek or support an appropriate protective order on behalf of the party who submitted the documents or information.
The Secretary may waive any of the provisions of this part in writing for good cause shown, if the Attorney General concurs and if permitted by law.
Title V of the Trade and Development Act of 2000 (Public Law No. 106-200) as amended by Trade Act of 2002 and the Miscellaneous Trade Act of 2004 (Public Law 108-429), Presidential Proclamation No. 7383 (December 1, 2000).
This part sets forth regulations regarding the issuance and effect of licenses for the allocation of Worsted Wool Fabric under the TRQs established by Section 501 of the Act, including the new HTS categories 9902.51.15 and 9902.51.16 added by the amended Act.
For purposes of these regulations and the forms used to implement them:
(a) In each year prior to a Tariff Rate Quota Year, the Department will cause to be published a
(b) An application for a Tariff Rate Quota allocation must be received, or postmarked by the U.S. Postal Service, within 30 calendar days after the date of publication of the
(c) For applying for TRQs 9902.51.11 or 9902.51.15 during the calendar year of the date of the application, an applicant must have cut and sewed in the United States all three of the following apparel products: Worsted Wool Suits, Worsted Wool Suit-Type Jackets, and Worsted Wool Trousers. The applicant may either have cut and sewn these products on its own behalf or had another person cut and sew the products on the applicant's behalf, provided the applicant owned the fabric at the time it was cut and sewn. The application must contain a statement to this effect. For applying for TRQ 9902.51.16 during the calendar year of the date of the application, an applicant must have woven in the United States worsted wool fabrics with average fiber diameters of 18.5 microns or less, suitable for use in making suits, suit-type jackets, and trousers. The application must contain a statement to this effect.
(d) An applicant must provide the following information in the format set forth in the application form provided by the Department:
(1)
(2)(i)
(ii) Applicants for TRQ 9902.51.16 must provide the name and address of each plant or location where Worsted Wool Fabric was woven by the applicant. The quantity and value of the Worsted Wool Fabric woven in the United States by applicant. This data must indicate actual production (not estimates) of Worsted Wool Fabric containing at least 85 percent worsted wool fabric by weight with an average diameter of 18.5 microns or less. For applications for the 2005 Tariff Rate Quota year, production data must be provided for full calendar year 2004. For allocations of Tariff Rate Quota years after 2005, production data must be provided for the first six months of the year of the application. This data will be annualized for the purpose of making Tariff Rate Quota allocations.
(3)
(4)
(e)
(f)
(a) For HTS 9902.51.11 and HTS 9902.51.15 each Tariff Rate Quota will be allocated separately. Allocation will be based on an applicant's Worsted Wool Suit production, on a weighted average basis, and the proportion of imported Worsted Wool Fabric consumed in the production of Worsted Wool Suits. In regards to HTS 9902.51.16 the Tariff Rate Quota will be allocated based on an applicant's Worsted Wool Fabric production, on a weighted average basis.
(b) For the purpose of calculating allocations for HTS 9902.51.11 and HTS 9902.51.15 only, Worsted Wool Suit production will be increased by the percentage of imported fabric consumed in the production of Worsted Wool Suits to total fabric consumed in this production. For example, if an applicant uses 30 percent imported fabric in the production of Worsted Wool Suits, that applicant's production level will be increased by 30 percent.
(c) The Department will cause to be published in the
(a) Each Licensee will receive a license, which will include a unique control number. The license is subject to the surrender and reallocation provisions in § 335.6.
(b) A license may be exercised only for fabric entered for consumption, or withdrawn from warehouse for consumption, during the Tariff Rate Quota Year specified in the license. A license will be debited on the basis of date of entry for consumption or withdrawal from warehouse for consumption.
(c) A Licensee may import fabric certified by the importer as suitable for use in making suits, suit-type jackets, or trousers under the appropriate Tariff Rate Quota as specified in the license (
(d) The term of a license shall be the Tariff Rate Quota Year for which it is issued. Fabric may be entered or withdrawn from warehouse for consumption under a license only during the term of that license. The license cannot be used for fabric entered or withdrawn from warehouse for consumption after December 31 of the year of the term of the license.
(e) The importer of record of fabric entered or withdrawn from warehouse for consumption under a license must be the Licensee or an importer authorized by the Licensee to act on its behalf. If the importer of record is the Licensee, the importer must possess the
(f) A Licensee may only authorize an importer to import fabric under the license on its behalf by making such an authorization in writing or by electronic notice to the importer and providing a copy of such authorization to the Department. A Licensee may only withdraw authorization from an importer by notifying the importer, in writing or by electronic notice, and providing a copy to the Department.
(g) The written authorization must include the unique number of the license, must specifically cover the type of fabric imported, and must be in the possession of the importer at the time of filing the entry summary or warehouse withdrawal for consumption (Customs Form 7501), or its electronic equivalent, in order for the importer to obtain the applicable Tariff Rate Quota duty rate.
(h) It is the responsibility of the Licensee to safeguard the use of the license issued. The Department and the U.S. Customs Service will not be liable for any unauthorized or improper use of the license.
(a) Not later than September 30 of each Tariff Rate Quota Year, a Licensee that will not import the full quantity granted in a license during the Tariff Rate Quota Year shall surrender the allocation that will not be used to the Department for purposes of reallocation through a written or electronic notice to the Department, including the license control number and the amount being surrendered. The surrender shall be final, and shall apply only to that Tariff Rate Quota Year.
(b) For purposes of this section, “unused allocation” means the amount by which the quantity set forth in a license, including any additional amount received pursuant to paragraph (d) of this section, exceeds the quantity entered under the license, excluding any amount surrendered pursuant to paragraph (a) of this section.
(c) The Department will notify Licensees of any amount surrendered and the application period for requests for reallocation. A Licensee that has imported, or intends to import, a quantity of Worsted Wool Fabric exceeding the quantity set forth in its license may apply to receive additional allocation from the amount to be reallocated. The application shall state the maximum amount of additional allocation the applicant will be able to use.
(d) The amount surrendered will be reallocated to Licensees that have applied for reallocation. The entire amount surrendered will be reallocated pro-rata among applicants based on the applicant's share of the annual allocation, but will not exceed the amount set forth in the reallocation application as the maximum amount able to be used.
(e) A Licensee whose unused allocation in a Tariff Rate Quota Year exceeds five percent of the quantity set forth in its license shall be subject to having its allocation reduced in the subsequent Tariff Rate Quota Year. The subsequent Tariff Rate Quota Year allocation will be reduced from the quantity such Licensee would otherwise have received by a quantity equal to 25 percent of its unused allocation from the prior year. A Licensee whose unused allocation in two or more consecutive Tariff Rate Quota Years exceeds five percent of the quantity set forth in its license shall have its allocation reduced in the subsequent Tariff Rate Quota Year by a quantity equal to 50 percent of its unused allocation from the prior year.
(f) No penalty will be imposed under paragraph (e) of this section if the Licensee demonstrates to the satisfaction of the Department that the unused allocation resulted from breach by a carrier of its contract of carriage, breach by a supplier of its contract to supply the fabric, act of God, or force majeure.
Foreign-Trade Zones Act of June 18, 1934, as amended (Pub. L. 397, 73rd Congress, 48 Stat. 998-1003 (19 U.S.C. 81a-81u)).
(a) This part sets forth the regulations, including the rules of practice and procedure, of the Foreign-Trade Zones Board with regard to foreign-trade zones in the United States pursuant to the Foreign-Trade Zones Act of 1934, as amended (19 U.S.C. 81a-81u). It includes the substantive and procedural rules for the authorization of zones and the regulation of zone activity. The purpose of zones as stated in the Act is to “expedite and encourage foreign commerce, and other purposes.” The regulations provide the legal framework for accomplishing this purpose in the context of evolving U.S. economic and trade policy, and economic factors relating to international competition.
(b) Part 146 of the regulations of the United States Customs Service (19 CFR part 146) governs zone operations, including the admission of merchandise into zones, zone activity involving such merchandise, and the transfer of merchandise from zones.
(c) To the extent “activated” under Customs procedures in 19 CFR part 146, and only for the purposes specified in the Act (19 U.S.C. 81c), zones are treated for purposes of the tariff laws and Customs entry procedures as being outside the Customs territory of the United States. Under zone procedures, foreign and domestic merchandise may be admitted into zones for operations such as storage, exhibition, assembly, manufacture and processing, without being subject to formal Customs entry procedures and payment of duties, unless and until the foreign merchandise enters Customs territory for domestic consumption. At that time, the importer ordinarily has a choice of paying duties either at the rate applicable to the foreign material in its condition as admitted into a zone, or if used in manufacturing or processing, to the emerging product. Quota restrictions do not normally apply to foreign goods in zones. The Board can deny or limit the
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(a)
(1) Prescribe rules and regulations concerning zones;
(2) Issue grants of authority for zones and subzones, and approve modifications to the original zone project;
(3) Approve manufacturing and processing activity in zones and subzones as described in subpart D of this part;
(4) Make determinations on matters requiring Board decisions under this part;
(5) Decide appeals in regard to certain decisions of the Commerce Department's Assistant Secretary for Import Administration or the Executive Secretary;
(6) Inspect the premises, operations and accounts of zone grantees and operators;
(7) Require zone grantees to report on zone operations;
(8) Report annually to the Congress on zone operations;
(9) Restrict or prohibit zone operations;
(10) Impose fines for violations of the Act and this part;
(11) Revoke grants of authority for cause; and
(12) Determine, as appropriate, whether zone activity is or would be in the public interest or detrimental to the public interest.
(b)
(1) Appoint the Executive Secretary of the Board;
(2) Call meetings of the Board, with reasonable notice given to each member; and
(3) Submit to the Congress the Board's annual report as prepared by the Executive Secretary.
(c)
(d)
(2) All votes will be recorded.
(3) The Board will issue its determination in proceedings under the regulations in the form of a Board order.
The Executive Secretary has the following responsibilities and authority:
(a) Represent the Board in administrative, regulatory, operational, and public affairs matters;
(b) Serve as director of the Commerce Department's Foreign-Trade Zones staff;
(c) Execute and implement orders of the Board;
(d) Arrange meetings and direct circulation of action documents for the Board;
(e) Arrange with other sections of the Department of Commerce, Board agencies and other governmental agencies for studies and comments on zone issues and proposals;
(f) Maintain custody of the seal, records, files and correspondence of the Board, with disposition subject to the regulations of the Department of Commerce;
(g) Issue notices on zone matters for publication in the
(h) Determine subzone sponsorship questions as provided in § 400.22(d);
(i) Determine whether additional information is needed for evaluation of applications and other requests for decisions under this part, as provided for in various sections of this part, including §§ 400.24, 400.25, and 400.26;
(j) Issue guidelines on information required for subzone applications under § 400.25(a)(6);
(k) Determine whether proposed modifications involve major changes under § 400.26(a)(2);
(l) Determine whether applications meet prefiling requirements under § 400.27(b);
(m) Direct processing of applications, including designation of examiners and scheduling of hearings under §§ 400.27 and 400.32;
(n) Authorize minor modifications to zone projects under § 400.27(f);
(o) Review changes in sourcing under § 400.28(a)(3);
(p) Direct monitoring of zone activity under § 400.31(d);
(q) Direct reviews and make recommendations on requests for manufacturing/processing approvals under § 400.32(b);
(r) Determine questions of scope under § 400.32(c);
(s) Accept rate schedules and determine their sufficiency under § 400.42(b)(3);
(t) Review and decide zone rate complaints cases under § 400.42(b)(5);
(u) Make recommendations in cases involving questions as to whether zone activity should be prohibited or restricted for public interest reasons, including reviews under § 400.43;
(v) Authorize under certain circumstances the return of “zone-restricted merchandise” for entry into Customs territory under § 400.44;
(w) Authorize certain duty-paid retail trade under § 400.45;
(x) Determine the format for the annual reports of zone grantees to the Board and direct preparation of an annual report to Congress from the Board under § 400.46(d); and
(y) Designate an acting Executive Secretary.
The headquarters of the Board is located within the U.S. Department of Commerce (Herbert C. Hoover Building), Pennsylvania Avenue and 14th Street, NW., Washington, DC 20230, as part of the office of the Foreign-Trade Zones staff.
(a)
(i) Each port of entry is entitled to at least one zone project;
(ii) If a port of entry is located in more than one state, each of the states in which the port of entry is located is entitled to a zone project; and
(iii) If a port of entry is defined to include more than one city separated by a navigable waterway, each of the cities is entitled to a zone project.
(2) Zone projects in addition to those approved under the entitlement provision of paragraph (a)(1) of this section may be authorized by the Board if it determines that existing project(s) will not adequately serve the public interest (convenience of commerce).
(b)
(2) The “adjacency” requirement is satisfied if:
(i) A general-purpose zone is located within 60 statute miles or 90 minutes' driving time from the outer limits of a port of entry;
(ii) A subzone meets the following requirements relating to Customs supervision:
(A) Proper Customs oversight can be accomplished with physical and electronic means; and
(B) All electronically produced records are maintained in a format compatible with the requirements of the U.S. Customs Service for the duration of the record period; and
(C) The grantee/operator agrees to present merchandise for examination at a Customs site selected by Customs when requested, and further agrees to present all necessary documents directly to the Customs oversight office.
(a)
(b)
(c)
(d)
(i) The zone grantee of the closest zone project in the same state;
(ii) The zone grantee of another zone in the same state, which is a public corporation, if the Board, or the Executive Secretary, finds that such sponsorship better serves the public interest; or
(iii) A state agency specifically authorized to submit such an application by an act of the state legislature.
(2)
(i) Notify, in writing, the grantee specified in paragraph (d)(1)(i) of this section, who may, within 30 days, object to such sponsorship, in writing, with supporting information as to why the public interest would be better served by its acting as sponsor;
(ii) Review such objections prior to filing the application to determine whether the proposed sponsorship is in the public interest, taking into account:
(A) The complaining zone's structure and operation;
(B) The views of State and local public agencies; and
(C) The views of the proposed subzone operator;
(iii) Notify the applicant and complainants in writing of the Executive Secretary's determination;
(iv) If the Executive Secretary determines that the proposed sponsorship is in the public interest, file the application (see § 400.47 regarding appeals to decisions of the Executive Secretary).
(a)
(1) The need for zone services in the port of entry area, taking into account existing as well as projected international trade related activities and employment impact;
(2) The adequacy of the operational and financial plans and the suitability of the proposed sites and facilities, with justification for duplicative sites;
(3) The extent of state and local government support, as indicated by the compatibility of the zone project with the community's master plan or stated goals for economic development and the views of State and local public officials involved in economic development. Such officials shall avoid commitments that anticipate outcome of Board decisions;
(4) The views of persons and firms likely to be affected by proposed zone activity; and
(5) If the proposal involves manufacturing or processing activity, the criteria in § 400.31.
(b)
(1) Whether the operation could be located in or otherwise accommodated by the multi-purpose facilities of the zone project serving the area;
(2) The specific zone benefits sought and the significant public benefit(s) involved supported by evidence to meet the requirement in § 400.31(c); and
(3) Whether the proposed activity is in the public interest, taking into account the criteria in § 400.31.
(a)
(b)
(c)
(1) The corporation's legal authority to apply;
(2) The type of authority requested from the Board;
(3) The proposed zone site and facilities and the larger project of which the zone is a part;
(4) The project background, including surveys and studies;
(5) The relationship of the project to the community's and state's overall economic development plans and objectives;
(6) The plans for operating and financing the project; and
(7) Any additional pertinent information needed for a complete summary description of the proposal.
(d)
(i) A certified copy of the state enabling legislation described in § 400.22;
(ii) A copy of pertinent sections of the applicant's charter or organization papers; and
(iii) A certified copy of the resolution of the governing body of the corporation authorizing the official signing the application.
(2) Exhibit Two (Site Description) shall consist of:
(i) A detailed description of the zone site, including size, location, address, and a legal description of the area proposed for approval; a table with site designations shall be included when more than one site is involved;
(ii) A summary description of the larger project of which the zone is a part, including type, size, location and address;
(iii) A statement as to whether the zone is within or adjacent to a customs port of entry;
(iv) A description of zone facilities and services, including dimensions and types of existing and proposed structures;
(v) A description of existing or proposed site qualifications including: land-use zoning, relationship to flood-plain, infrastructure, utilities, security, and access to transportation services;
(vi) A description of current activities carried on in or contiguous to the project;
(vii) If part of a port facility, a summary of port and transportation services and facilities; if not, a summary description of transportation systems indicating connections from local and regional points of arrival to the zone; and
(viii) A statement as to the possibilities and plans for zone expansion.
(3) Exhibit Three (Operation and Financing) shall consist of:
(i) A statement as to site ownership (if not owned by the applicant or proposed operator, evidence as to their legal right to use the site);
(ii) A discussion of the operational plan (if the zone or a portion thereof is to be operated by other than the grantee, a summary of the selection process used or to be used, the type of operation agreement and, if available, the name and qualifications of the proposed operator);
(iii) A brief explanation of the plans for providing facilities, physical security, and for satisfying the requirements for Customs automated systems;
(iv) A summary of the plans for financing capital and operating costs, including a statement as to the source and use of funds; and
(v) The estimated time schedule for construction and activation.
(4) Exhibit Four (Economic Justification) shall include:
(i) A statement of the community's overall economic goals and strategies in relation to those of the region and state;
(ii) A reference to the plan or plans on which the goals are based and how they relate to the zone project;
(iii) An economic profile of the community including identification and discussion of dominant sectors in terms of percentage of employment or income, area resources and problems, economic imbalances, unemployment rates, area foreign trade statistics, and area port facilities and transportation networks;
(iv) A statement as to the role and objective of the zone project, and a justification for each of the proposed sites;
(v) A discussion of the anticipated economic impact, direct and indirect, of the zone project, including references to public costs and benefits, employment, U.S. international trade, and environmental impact;
(vi) A statement as to the need for zone services in the community, with information on surveys of business, and specific expressions of interest from proposed zone users, with letters of intent from those firms that are considered prime prospects; and
(vii) A description of proposed manufacturing and processing operations, if applicable, with information covering the factors described in § 400.31(b), including the nature and scope of the operation and production process, materials and components used, items to be foreign sourced with relevant tariff information, zone benefits anticipated and how they will affect the firm's plans, and the economic impact of the operation on the community and on related domestic industries.
(5) Exhibit Five (Maps) shall consist of:
(i) The following maps and drawings:
(A) State and county maps showing the general location of the zone in terms of the area's transportation network;
(B) A local community map showing in red the location of the proposed zone; and
(C) A detailed blueprint of the zone or subzone area showing zone boundaries in red, with dimensions and metes and bounds, or other legal description, and showing existing and proposed structures.
(ii) Proposals involving existing zones shall include a drawing showing existing zone sites and the proposed changes.
(e)
(f)
(g)
(h)
(i)
(a)
(1) A summary as to the reasons for the subzone and an explanation of its anticipated economic effects;
(2) Identity of the subzone user and its corporate affiliation;
(3) Description of the proposed activity, including:
(i) Products;
(ii) Materials and Components;
(iii) Sourcing plans (domestic/foreign);
(iv) Tariff rates and other import requirements or restrictions;
(v) Information to assist the Board in making a determination under §§ 400.31(b)(1)(iii) and 400.31(b)(2);
(vi) Benefits to subzone user;
(vii) Information required in § 400.24(d)(4)(vii);
(viii) Information as to whether alternative procedures have been considered as a means of obtaining the benefits sought;
(ix) Information on the industry involved and extent of international competition; and
(x) Economic impact of the operation on the area;
(4) Reason operation cannot be conducted within a general-purpose zone;
(5) Statement as to environmental impact; and
(6) Any additional information requested by the Board or the Executive Secretary in order to conduct the review. The Executive Secretary may issue guidelines as to the kind of detailed information needed for various types of subzone cases.
(b)
(a)
(2) The Executive Secretary, in consultation with the Port Director, will determine whether the proposed modification involves a major change in the zone plan and is thus subject to paragraph (b) of this section, or is minor and subject to paragraph (c) of this section. In making this determination the Executive Secretary will consider the extent to which the proposed modification would:
(i) Substantially modify the plan originally approved by the Board; or
(ii) Expand the physical dimensions of the approved zone area as related to the scope of operations envisioned in the original plan.
(b)
(1) Reference may be made to current information in an application from the same applicant on file with the Board; and
(2) The content of Exhibit Four shall relate specifically to the proposed change.
(c)
(d)
(a)
(b)
(1) If the application is deficient, the Executive Secretary will notify the applicant within 20 days of receipt of the application, specifying the deficiencies. The applicant shall correct the deficiencies and submit the correct application within 30 days of notification. Otherwise, the application (original) will be returned.
(2) If the application is sufficient, the Executive Secretary will within 45 days of receipt of the application:
(i) Formally file the application, thereby initiating the proceeding or review;
(ii) Assign a case docket number in cases requiring a Board order; and
(iii) Notify the applicant.
(c)
(1) Designate an examiner to conduct a review and prepare a report with recommendations for the Board;
(2) Publish in the
(3) Send copies of the filing and initiation notice and the application to the Commissioner of Customs and the Port Director, or a designee;
(4) Arrange for hearings, as appropriate;
(5) Transmit the reports and recommendations of the examiner and of the officials identified in paragraph (c)(3) of this section to the Board for appropriate action; and
(6) Notify the applicant in writing and publish notice in the
(d)
(2)
(i) Conducting or participating in necessary hearings scheduled by the Executive Secretary;
(ii) Reviewing case records, including public comments;
(iii) Requesting information and evidence from parties of record;
(iv) Developing information and evidence necessary for evaluation and analysis of the application in accordance with the criteria of the Act and this part;
(v) Preparing a report with recommendations to the Board and submitting it to the Executive Secretary within 120 days of the close of the period for public comment (see, paragraph (c)(2) of this section).
(A) If the report is unfavorable to the applicant, it shall be considered a preliminary report and the applicant shall be notified within 5 days (in writing or by phone) and given 30 days from the date of notification in which to respond to the report and submit additional evidence.
(B) If the response contains new evidence on which there has not been an opportunity for public comment, the Executive Secretary will publish notice in the
(C) The Customs adviser shall be notified when necessary for further comments, which shall be submitted within 45 days after notification.
(D) The examiners report in a situation under paragraph (d)(2)(v)(A) of this section shall be completed and submitted to the Executive Secretary within 30 days after receipt of additional evidence or notice from the applicant that there will be none; except that, if paragraph (d)(2)(v)(B) of this section applies, the report will be submitted within 30 days of the close of the period for public comment.
(3)
(i) Conducting or participating in hearings scheduled by the Executive Secretary;
(ii) Reviewing case records, including public comments;
(iii) Requesting information and evidence from parties of record;
(iv) Developing information and evidence necessary for analysis of the threshold factors and the economic factors enumerated in § 400.31;
(v) Conducting an analysis to include:
(A) An evaluation of policy considerations pursuant to §§ 400.31(b)(1)(i) and 400.31(b)(1)(ii);
(B) An evaluation of the economic factors enumerated in §§ 400.31(b)(1)(iii) and 400.31(b)(2), which shall include an evaluation of the economic impact on domestic industry, considering both producers of like products and producers of components/materials used in the manufacture/processing or assembly of the products. The evaluation will take into account such factors as market conditions, price sensitivity, degree and nature of foreign competition, effect on exports and imports, and the net effect on U.S. employment;
(vi) Conducting appropriate industry surveys when necessary; and
(vii) Preparing a report with recommendations to the Board and submitting it to the Executive Secretary within 150 days of the close of the period for public comment:
(A) If the report is unfavorable to the applicant, it shall be considered a preliminary report and the applicant shall be notified (in writing or by phone) and given 45 days from the date of notification in which to respond to the report and submit additional evidence pertinent to the factors considered in the report.
(B) If the response contains new evidence on which there has not been an opportunity for public comment, the Executive Secretary will publish notice in the
(e)
(2) The Treasury and Army Board members will return their votes to the Executive Secretary within 30 days, unless a formal meeting is requested (see, § 400.11(d)).
(3) The Commerce Department will complete the decision process within 15 days of receiving the votes of both other Board members, and the Executive Secretary will publish the Board decision.
(f)
(2) The Port Director shall provide the decision as to concurrence within 20 days after being notified of the request or application.
(a)
(1) Approvals from the grantee and the Port Director, pursuant to 19 CFR part 146, are required prior to the activation of any portion of an approved zone project; and
(2) Approval of the Board or the Commerce Department's Assistant Secretary for Import Administration pursuant to subpart D of this part is required prior to the commencement of manufacturing beyond the scope of that approved as part of the application or pursuant to reviews under this part (e.g., new end products, significant expansions of plant production capacity), and of similar changes in processing activity which involves foreign articles subject to quantitative import controls (quotas) or results in articles subject to a lower (actual or effective) duty rate (inverted tariff) than any of their foreign components.
(3)
(A) Entries for consumption are not to be made at the lower duty rate; or
(B) The product in which the foreign articles are to be incorporated is being produced for exportation.
(ii)
(iii)
(B) The Board or the Commerce Department's Assistant Secretary for Import Administration may, based on public interest grounds, prohibit or restrict the use of zone procedures in regard to the change in sourcing, including requiring that items be placed in privileged foreign status (19 CFR 146.41) upon admission to a zone or subzone.
(C) The Executive Secretary shall direct reviews necessary to ensure that activity involved in these situations continues to be in the public interest.
(4) Prior to activation of a zone, the zone grantee or operator shall obtain all necessary permits from federal, state and local authorities, and except as otherwise specified in the Act or this part, shall comply with the requirements of those authorities.
(5) A grant of authority for a zone or a subzone shall lapse unless the zone project (in case of subzones, the subzone facility) is activated, pursuant to 19 CFR part 146, and in operation not later than five years from:
(i) A Board order (authorizing the zone or subzone) issued after November 7, 1991; or
(ii) November 7, 1991.
(6) A grant of authority approved under this subpart includes authority for the grantee to permit the erection of buildings necessary to carry out the approved zone project subject to concurrence of the Port Director.
(7) Zone grantees, operators, and users shall permit federal government officials acting in an official capacity to have access to the zone project and records during normal business hours and under other reasonable circumstances.
(8) A grant of authority may not be sold, conveyed, transferred, set over, or assigned (FTZ Act, section 17; 19 U.S.C. 81q). Private ownership of zone land and facilities is permitted provided the zone grantee retains the control necessary to implement the approved zone
(9) A grant of authority will not be construed to make the zone grantee automatically liable for violations by operators, users, or other parties.
(b)
(c)
(2)
(i) Notify the zone or subzone grantee in writing stating the nature of the alleged violations, and provide the grantee an opportunity to request a hearing on the proposed revocation;
(ii) Conduct a hearing, if requested or otherwise if appropriate;
(iii) Make a determination on the record of the proceeding not earlier than 4 months after providing notice to the zone grantee under paragraph (b)(1) of this section; and
(iv) If the Board's determination is affirmative, publish notice of revocation of the grant of authority in the
(3) As provided in section 18 of the Act (19 U.S.C. 81r(c)), the zone or subzone grantee may appeal an order of the Board revoking the grant of authority.
(a)
(b)
(c) Applications submitted to the Board shall include a check drawn on a national or state bank or trust company of the United States or Puerto Rico in the amount called for in paragraph (b) of this section. Uncertified checks must be acceptable for deposit by a Federal Reserve bank or branch.
(d) Applicants shall make their checks payable to the U.S. Department of Commerce ITA. The checks will be deposited by ITA into the Treasury receipts account. If applications are found deficient under § 400.27(b)(1), or withdrawn by applicants prior to formal filing, refunds will be made.
(a)
(b)
(i) The activity is inconsistent with U.S. trade and tariff law, or policy which has been formally adopted by the Executive branch;
(ii) Board approval of the activity under review would seriously prejudice U.S. tariff and trade negotiations or other initiatives; or
(iii) The activity involves items subject to quantitative import controls or inverted tariffs, and the use of zone procedures would be the direct and sole cause of imports that, but for such procedures, would not likely otherwise have occurred, taking into account imports both as individual items and as components of imported products.
(2)
(i) Overall employment impact;
(ii) Exports and reexports;
(iii) Retention or creation of manufacturing or processing activity;
(iv) Extent of value-added activity;
(v) Overall effect on import levels of relevant products, including import displacement;
(vi) Extent and nature of foreign competition in relevant products;
(vii) Impact on related domestic industry, taking into account market conditions; and
(viii) Other relevant information relating to public interest and net economic impact considerations, including technology transfers and investment effects.
(c)
(ii) The process for paragraph (b)(2) of this section involves consideration of the enumerated economic factors, taking into account their relative weight and significance under the circumstances. Previous evaluations in similar cases are considered. The net effect is arrived at by balancing the positive and negative factors and arriving at a net economic effect.
(2)
(3)
(d)
(2) Reviews may be initiated by the Board, the Commerce Department's Assistant Secretary for Import Administration, or the Executive Secretary; or, they may be undertaken in response to requests from parties directly affected by the activity in question and showing good cause.
(3) Upon review, if the Board finds that zone activity is no longer in the public interest, taking into account the provisions of § 400.31, it may restrict the activity in question. The appropriateness of a delayed effective date will be considered in such cases.
(a)
(b)
(1) The Commerce Department's Assistant Secretary for Import Administration may make determinations in these cases based upon a review by the FTZ staff and the recommendation of the Executive Secretary, when:
(i) The proposed activity is the same, in terms of products involved, to activity recently approved by the Board and similar in circumstances; or
(ii) The activity is for export only; or
(iii) The zone benefits sought do not involve the election of non-privileged foreign status (19 CFR 146.42) on items involving inverted tariffs; or
(iv) The Port Director determines that the activity could otherwise be conducted under Customs bonded procedures.
(2) When the informal procedure in paragraph (b)(1) of this section is not appropriate—
(i) The Executive Secretary will:
(A) Assign a case docket number and give notice in the
(B) Arrange a public hearing, if appropriate;
(C) Appoint an examiner, if appropriate, to conduct a review and prepare a report with recommendations for the Board; and
(D) Prepare and transmit a report with recommendations, or transmit the examiners report, to the Board for appropriate action; and
(ii) The Board will make a determination on the requests, and the Executive Secretary will notify the grantee in writing of the Board's determination, and will publish notice of the determination in the
(c)
(a)
(b)
(2)
Zones shall be operated by or under the contractual oversight of zone grantees, subject to the requirements of the Act and this part, as well as those of other federal, state and local agencies having jurisdiction over the site and operation. Zone grantees shall ensure that the reasonable zone needs of the business community are served by their zone projects. The Port Director represents the Board with regard to the zone projects in the district and is responsible for enforcement, including physical security and access requirements, as provided in 19 CFR part 146.
(a)
(1) Approval by the Port Director of an application for activation is required as provided in 19 CFR part 146; and
(2) The Executive Secretary will review proposed manufacturing or processing, pursuant to § 400.32, and a zone schedule as provided in this section.
(b)
(i) Internal rules and regulations for the zone; and
(ii) A statement of the rates and charges (fees) applicable to zone users.
(2) A zone schedule shall consist of typed, loose-leaf, numbered, letter-sized pages, enclosed in covers, and shall contain:
(i) A title page, with information to include:
(A) The name of the zone grantee and operator(s);
(B) Schedule identification;
(C) Site description;
(D) Date of original schedule; and
(E) Name of the preparer;
(ii) A table of contents;
(iii) Administrative information;
(iv) A statement of zone operating policy, rules and regulations, including uniform procedures regarding the construction of buildings and facilities; and
(v) A section listing rates and charges for zones and subzones with information sufficient for the Board or the Executive Secretary to determine
(3) The Executive Secretary will review the schedule to determine whether it contains sufficient information for users concerning the operation of the facility and a statement of rates and charges as provided in paragraph (b)(2) of this section. If the Executive Secretary determines that the schedule satisfies these requirements, the Executive Secretary will notify the zone grantee, unless there is a basis for review under paragraph (b)(5) of this section. A copy of the schedule shall be available for public inspection at the offices of the zone grantee and operator. The zone grantee shall send a copy to the Port Director, who may submit comments to the Executive Secretary.
(4) Amendments to the schedule shall be prepared and submitted in the manner described in paragraphs (b)(1) through (b)(3) of this section, and listed in the concluding section of the schedule, with dates.
(5) A zone user or prospective user showing good cause may object to the zone or subzone fee on the basis that it is not reasonable, fair and uniform, by submitting to the Executive Secretary a complaint in writing with supporting information. The Executive Secretary will review the complaint and issue a report and decision, which will be final unless appealed to the Board within 30 days. The Board or the Executive Secretary may otherwise initiate a review for cause. The factors considered in reviewing reasonableness and fairness, will include:
(i) The going-rates and charges for like operations in the area and the extra costs of operating a zone, including return on investment; and
(ii) In the case of subzones, the value of actual services rendered by the zone grantee or operator, and reasonable out-of-pocket expenses.
(a)
(b)
(a)
(b)
(1) The intent of the parties;
(2) Why the goods cannot be exported;
(3) The public benefit involved in allowing their return; and
(4) The recommendation of the Port Director.
(c)
(2) The Executive Secretary will investigate the request and prepare a report for the Board.
(3) The Executive Secretary may act for the Board under this section in cases involving merchandise valued at 500,000 dollars or less, provided requests
(a)
(b)
(c)
(1) Whether any public benefits would result from approval; and
(2) The economic effect such activity would have on the retail trade outside the zone in the port of entry area.
(a)
(b)
(c)
(d)
(2) The Board shall submit an annual report to the Congress.
(a)
(b)
(a)
(b)
(2) The request must be made within 30 days of the beginning of the period for public comment (see, § 400.27) and must be accompanied by information establishing the need for the hearing and the basis for the requesting party's interest in the matter.
(3) A determination as to the need for the hearing will be made by the Commerce Department's Assistant Secretary for Import Administration within 15 days after the receipt of such a request.
(c)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
Nomenclature changes to chapter VII appear at 67 FR 20632, Apr. 26, 2002 and 69 FR 60546 and 60547, Oct. 12, 2004.
Titles I and VII of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061,
(a) Title I of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061,
(b) Section 18 of the Selective Service Act of 1948 (50 U.S.C. app. 468) (Selective Service Act) authorizes the President to place an order with a supplier for any articles or materials required for the exclusive use of the U.S. armed forces whenever the President determines that in the interest of national security, prompt delivery of the articles and materials is required. The supplier must give precedence to the order so as to deliver the articles or materials in a required time period. 10 U.S.C. 2538, and 50 U.S.C. 82, provide similar authority specifically for Department of Defense procurement, but only in time of war or when war is imminent.
(c) Section 602(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195a(b)) provides that the terms “national defense” and “defense” as used in the Defense Production Act includes “emergency preparedness activities” conducted pursuant to Title VI of the Stafford Act. The definition of “national defense” in section 702(14) of the Defense Production Act provides that this term includes “emergency preparedness activities” conducted pursuant to Title VI of the Stafford Act and “critical infrastructure protection and restoration.”
(d) The Defense Priorities and Allocations System (DPAS) regulation implements the priorities and allocations authority of the Defense Production Act and as this authority pertains to Title VI of the Stafford Act, and the priorities authority of the Selective Service Act and related statutes, all with respect to industrial resources. The DPAS ensures the timely availability of industrial resources for approved programs and provides an operating system to support rapid industrial response to a national emergency.
(e) To aid in understanding and using the DPAS, an overview of its major provisions is incorporated into this regulation as subpart B—Overview. The full text of the DPAS is found in subparts D through L.
(a) Certain national defense and energy programs (including emergency preparedness activities) are approved for priorities and allocations support. For example, military aircraft production, ammunition, and certain programs which maximize domestic energy supplies are “approved programs.” A complete list of currently approved programs is provided at Schedule I to this part.
(b) The Department of Commerce administers the DPAS to ensure the timely delivery of industrial items to meet approved program requirements.
(c) Commerce has delegated authorities to place priority ratings on contracts or orders necessary or appropriate to promote the national defense to the government agencies that issue such contracts or orders. Schedule I includes a list of agencies delegated this authority.
(a) Rated orders are identified by a priority rating consisting of the rating—either DX or DO—and a program identification symbol. Rated orders take preference over all unrated orders as necessary to meet required delivery dates. Among rated orders, DX rated orders take preference over DO rated orders. Program identification symbols
(b) Persons receiving rated orders must give them preferential treatment as required by this regulation. This means a person must accept and fill a rated order for items that the person normally supplies. The existence of previously accepted unrated or lower rated orders is not sufficient reason for rejecting a rated order. Persons are required to reschedule unrated orders if they conflict with performance against a rated order. Similarly, persons must reschedule DO rated orders if they conflict with performance against a DX rated order.
(c) All rated orders must be scheduled to the extent possible to ensure delivery by the required delivery date.
(d) Persons who receive rated orders must in turn place rated orders with their suppliers for the items they need to fill the orders. This provision ensures that suppliers will give priority treatment to rated orders from contractor to subcontractor to suppliers throughout the procurement chain.
(e) Persons may place a priority rating on orders only when they are in receipt of a rated order, have been explicitly authorized to do so by the Department of Commerce or a Delegate Agency, or are otherwise permitted to do so by this regulation.
(a) In the event of a national emergency, special rules may be established as needed to supplement this part, thus ensuring rapid industrial response and the timely availability of critical industrial items and facilities to meet the urgent national defense requirements, including domestic emergency preparedness requirements, of approved programs.
(b) The special rules established in response to the emergency may include provisions for the taking of certain emergency official actions and the allocation of critical and scarce materials and facilities.
(a) The DPAS is designed to be largely self-executing. However, from time-to-time production or delivery problems will arise. In this event, special priorities assistance is available from Commerce and from the Delegate Agencies.
(b) Special priorities assistance is available for any reason consistent with this regulation. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or to verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items not automatically ratable.
When necessary, Commerce takes specific official actions to implement or enforce the provisions of this regulation and to provide special priorities assistance. Such actions may include the issuance of: Rating Authorizations, Directives, Letters of Understanding, Set-asides, and compliance documents (Administrative Subpoenas, Demands for Information, and Inspection Authorizations).
(a) Compliance with the provisions of this regulation and official actions is required by the Defense Production Act and the Selective Service Act and related statutes. Violators are subject to criminal penalties.
(b) Any person who places or receives a rated order should be thoroughly familiar with, and must comply with, the provisions of this regulation.
In addition to the definitions provided in Section 702 of the Defense Production Act (excepting the definition of “industrial resources”) and Section 602(a) of the Stafford Act, the following definitions pertain to all sections of this part:
(a)
(b)
(c)
(d) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.
(a) The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to industrial resources have been delegated to the Secretary of Commerce under Executive Order 12919 of June 3, 1994 (59 FR 29525). The priorities authorities of the President under the Selective Service Act and related statutes with respect to industrial resources have also been delegated to the Secretary of Commerce under Executive Order 12742 of January 8, 1991 (56 FR 1079).
(b) Within the Department of Commerce, these responsibilities have been assigned to the Office of Strategic Industries and Economic Security. The Department of Commerce has authorized the Delegate Agencies to assign priority ratings to orders for items needed for approved programs.
(a)
(2) All DO rated orders have equal priority with each other and take preference over unrated orders. All DX rated orders have equal priority with each other and take preference over DO rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 700.14(c).)
(3) In addition, a Directive issued by Commerce takes preference over any DX rated order, DO rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 700.62.)
(b)
(c)
Each rated order must include:
(a) The appropriate priority rating (e.g. DO-A1, DX-A4, DO-H1);
(b) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. A “requirements contract”, “basic ordering agreement”, “prime vendor contract”, or similar procurement document bearing a priority rating may contain no specific delivery date or dates and may provide for the furnishing of items from time-to-time or within a stated period against specific purchase orders, such as “calls”, “requisitions”, and “delivery orders”. These purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically
(d) A statement that reads in substance:
This is a rated order certified for national defense use, and you are required to follow all the provisions of the Defense Priorities and Allocations System regulation (15 CFR part 700).
(a)
(2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.
(b)
(1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO rated order for delivery on a date which would interfere with delivery of any previously accepted DO or DX rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX rated order for delivery on a date which would interfere with delivery of any previously accepted DX rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.
(4) If a person is unable to fill all the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.
(c)
(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not performed;
(3) If the order is for an item produced, acquired, or provided only for the supplier's own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items, the supplier is obligated to accept rated orders up to that quantity or portion of production, whichever is greater, sold within the past two years;
(4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Commerce issued under the authority of the Defense Production Act or the Selective Service Act and related statutes [See § 700.75].
(d)
(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days.
(a) A person must schedule operations, including the acquisition of all needed production items, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.
(b) DO rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery against unrated orders. Similarly, DX rated orders must be given preference over DO rated orders and unrated orders.
If a person receives a DO rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX rated order is received calling for delivery on July 15 and a person has a DO rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX rated order.
(c)
(2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance as provided in §§ 700.50 through 700.54. If the person's customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as provided in §§ 700.50 through 700.54. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 700.13(d)(2).
(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 700.17(b).
(a) A person must use rated orders with suppliers to obtain items needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this regulation or as directed by the Department of Commerce.
For example, if a person is in receipt of a DO-A3 rated order for a navigation system and needs to purchase semiconductors for its manufacture, that person must use a DO-A3 rated order to obtain the needed semiconductors.
(b) The priority rating must be included on each successive order placed to obtain items needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain.
(a) The priority rating on a rated order may be changed or cancelled by:
(1) An official action of the Department of Commerce; or
(2) Written notification from the person who placed the rated order (including a Delegate Agency).
(b) If an unrated order is amended so as to make it a rated order, or a DO, rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.
(c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 700.13.
(d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design; or a change which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items to fill a rated order, any rated orders placed with suppliers for the items, or the priority rating on those orders, must be cancelled.
(f) When a priority rating is added to an unrated order, or is changed or cancelled, all suppliers must be promptly notified in writing.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed, or converted into scrap or by-products, in the course of processing;
(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill rated orders; and
(4) MRO needed to produce the finished items to fill rated orders. However, for MRO, the priority rating used must contain the program identification symbol H7 along with the rating symbol contained on the customer's rated order. For example, a person in receipt of a DO-A3 rated order, who needs MRO, would place a DO-H7 rated order with the person's supplier.
(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:
(1) The order must be placed within 90 days of the date of use of the inventory.
(2) A DO rating symbol and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating symbol may not be used even if the inventory was used to fill a DX rated order.
(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol H1 must be used (i.e., DO-H1).
(c) A person may combine DX and DO rated orders from one customer or several customers if the items covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol H1 (i.e., DO-H1 or DX-H1).
(d)
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by § 700.12, are included on the order with the statement required in § 700.12(d) modified to read in substance:
This purchase order contains rated order quantities certified for national defense use, and you are required to follow all the provisions of the Defense Priorities and Allocations System regulation (15 CFR part 700) only as it pertains to the rated quantities.
(2) A supplier must accept or reject the rated portion of the purchase order
(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this regulation or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 700.80.
(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.
(f) A person is not required to place a priority rating on an order for less than $50,000, or one half of the Federal Acquisition Regulation (FAR) Simplified Acquisition Threshold (see FAR 2.101), whichever amount is larger, provided that delivery can be obtained in a timely fashion without the use of the priority rating.
(a)
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;
(iii) Items in advance of the receipt of a rated order,
(iv) Any of the following items unless specific priority rating authority has been obtained from a Delegate Agency or Commerce:
(A) Items for plant improvement, expansion or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see § 700.51.]
(v) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.
(b)
(i) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Department of Agriculture) (The Department of Agriculture and the Department of Commerce have agreed that the Department of Defense may place rated contracts and orders for food resources in support of troops, including but not limited to, meals ready to eat (MREs), “tray-packs” (T-rations), A-rations, and B-rations);
(ii) All forms of energy, including radioisotopes, stable isotopes, source material, and special nuclear material produced in Government-owned plants or facilities operated by or for the Department of Energy (Department of Energy);
(iii) Health resources (Department of Health and Human Services);
(iv) All forms of civil transportation (Department of Transportation);
(v) Water resources (Department of Defense/U.S. Army Corps of Engineers); and
(vi) Communications services (National Communications System under Executive Order 12472 of April 3, 1984).
(2) The jurisdiction of the Department of Commerce and the Departments of Energy and Agriculture over certain specific items included in the categories listed above has been clarified by Interagency Memoranda of Understanding.
(3) The following items under the jurisdiction of Commerce are currently excluded from the rating provisions of this regulation; however, these items are subject to Commerce Directives. These excluded items are:
(a) Section 101(c) of the Defense Production Act authorizes the use of priority ratings for projects which maximize domestic energy supplies.
(b) Projects which maximize domestic energy supplies include those which maintain or further domestic energy exploration, production, refining, and transportation; maintain or further the conservation of energy; or are involved in the construction or maintenance of energy facilities.
(a) For projects believed to maximize domestic energy supplies, a person may request priority rating authority for scarce, critical, and essential supplies of materials, equipment, and services (related to the production of materials or equipment, or the installation, repair, or maintenance of equipment) by submitting DOE Form PR 437 to the Department of Energy. Blank applications and further information may be obtained from the U.S. Department of Energy, Office of Clearance and Support, Field/Headquarters Support Division, Forrestal Building, 1000 Independence Avenue, S.W., Washington, D.C. 20585; Attn.: PR-132.
(b) On receipt of the application, the Department of Energy will:
(1) Determine if the project maximizes domestic energy supplies; and
(2) Find whether the materials, equipment, or services involved in the application are critical and essential to the project.
(c) If the Department of Energy notifies Commerce that the project maximizes domestic energy supplies and that the materials, equipment, or services are critical and essential, Commerce must find whether the items in question are scarce and whether there is a need to use the priorities and allocations authorities.
(1) Scarcity implies an unusual difficulty in obtaining the materials, equipment, or services in a timeframe consistent with the timely completion of the energy project. Among the factors to be used in making the scarcity finding will be the following:
(i) Value and volume of material or equipment shipments;
(ii) Consumption of material and equipment;
(iii) Volume and market trends of imports and exports;
(iv) Domestic and foreign sources of supply;
(v) Normal levels of inventories;
(vi) Rates of capacity utilization;
(vii) Volume of new orders; and
(viii) Lead times for new orders.
(2) In finding whether there is a need to use the priorities and allocations authorities, Commerce will consider alternative supply solutions and other measures.
(d) If Commerce does not find that the items of materials, equipment, or services are scarce, it will not proceed to analyze the need to use the priorities and allocations authorities.
(e) Commerce will inform the Department of Energy of the results of its analysis. If Commerce has made the two required findings, it will authorize the Department of Energy to grant the use of a priority rating to the applicant.
(f) Schedule I includes a list of approved programs to support the maximization of domestic energy supplies. A Department of Energy regulation
(a) In the event of a national emergency, special rules may be established as needed to supplement this part, thus ensuring rapid industrial response and the timely availability of critical industrial items and facilities to meet the urgent national defense requirements, including domestic emergency preparedness requirements, of approved programs.
(1)
(ii) Emergency official actions may include:
(A) Controlling inventories of critical and scarce defense and/or emergency preparedness items;
(B) Restricting the purchase, use, or distribution of critical and scarce defense and/or emergency preparedness items, or the use of production or distribution facilities, for non-essential purposes; and
(C) Converting the production or distribution of non-essential items to the production or distribution of critical and scarce defense and/or emergency preparedness items.
(2)
(ii) Allocation rules (i.e., controlled materials programs) were established in response to previous periods of national security emergency such as World War II and the Korean Conflict. The basic elements of the controlled materials programs were the set-aside (the amount of an item for which a producer or supplier must reserve order book space in anticipation of the receipt of rated orders), the production directive (requires a producer to supply a specific quantity, size, shape, and type of an item within a specific time period), and the allotment (the maximum quantity of an item authorized for use in a specific program or application). These elements can be used to assure the availability of any scarce and critical item for approved programs. Currently, a set-aside applies only to metalworking machines (see § 700.31).
(3) In the event that certain critical items become scarce, and approved program requirements for these items cannot be met without creating a significant dislocation in the civilian market place so as to create appreciable hardship, Commerce may establish special rules under section 101(b) of the Defense Production Act to control the general distribution of such items in the civilian market.
(b) [Reserved]
(a) “Metalworking machines” include power driven, manual or automatic, metal cutting and metal forming machines and complete machines not supported in the hands of an operator when in use. Basic machines with a list price of $2,500 or less are not covered by this section.
(b) Metalworking machines covered by this section include:
(c) A metalworking machine producer is not required to accept DO rated orders calling for delivery in any month of a total quantity of any size of machine in excess of 60 percent of scheduled production of that size of machine for that month, or any DO rated orders received less than three months prior to the beginning of the month for which delivery is requested. However, DX rated orders must be accepted without regard to a set-aside or the lead time, if delivery can be made by the required date.
(a) The DPAS is designed to be largely self-executing. However, it is anticipated that from time-to-time problems will occur. In this event, a person should immediately contact the appropriate contract administration officer for guidance or assistance. If additional formal aid is needed, special priorities assistance should be sought from the Delegate Agency through the contract administration officer. If the Delegate Agency is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Delegate Agency may forward the request to the Department of Commerce for action. Special priorities assistance is a service provided to alleviate problems that do arise.
(b) Special priorities assistance can be provided for any reason in support of this regulation, such as assisting in obtaining timely deliveries of items needed to satisfy rated orders or authorizing the use of priority ratings on orders to obtain items not automatically ratable under this regulation.
(c) A request for special priorities assistance or priority rating authority must be submitted on Form BIS-999 (OMB control number 0694-0057) to the local contract administration representative. Form BIS-999 may be obtained from the Delegate Agency representative or from the Department of Commerce. A sample Form BIS-999 is attached at Appendix I.
(a) If a rated order is likely to be delayed because a person is unable to obtain items not normally rated under this regulation, the person may request the authority to use a priority rating in ordering the needed items. Examples of items for which priority ratings can be authorized include:
(1) Production or construction equipment;
(2) Computers when not used as production items; and
(3) Expansion, rebuilding or replacing plant facilities.
(b)
(2) When the use of a priority rating is authorized for the procurement of production or construction equipment,
(c)
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from a Delegate Agency and our use of that priority rating with our suppliers in no way commits the Delegate Agency, the Department of Commerce or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated prime contract, Commerce will consider, among other things, the following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The political sensitivity of the project; and
(vi) The time period for which the rating is being requested.
(4) Commerce may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled.
(a) While special priorities assistance may be provided for any reason in support of this regulation, it is usually provided in situations where:
(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item needed to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by suppliers;
(2) Resolving production or delivery conflicts between various rated orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
Requests for special priorities assistance should be timely,
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the problem.
Special priorities assistance is provided at the discretion of the Delegate Agencies and Commerce when it is determined that such assistance is warranted to meet the objectives of this regulation. Examples where assistance may not be provided include situations when a person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier's regularly established terms of sale or conditions of doing business.
(a) To promote military assistance to foreign nations, this section provides for authorizing priority ratings to persons in Canada and in other foreign nations to obtain items in the United States in support of approved programs. Although priority ratings have no legal authority outside of the United States, this section also provides information on how persons in the United States may obtain informal assistance in Canada, Italy, The Netherlands, Sweden, and the United Kingdom in support of approved programs.
(b)
(2) The Department of Commerce coordinates with the Canadian Public Works and Government Services Canada on all matters of mutual concern relating to the administration of this regulation.
(3) Any person in the United States ordering defense items in Canada in support of an approved program should inform the Canadian supplier that the items being ordered are to be used to fill a rated order. The Canadian supplier should be informed that if production materials are needed from the United States by the supplier or the supplier's vendor to fill the order, the supplier or vendor should contact the Canadian Public Works and Government Services Canada, for authority to place rated orders in the United States: Public Works and Government Services Canada, Acquisitions Branch, Business Management Directorate, Phase 3, Place du Portage, Level 0A1, 11 Laurier Street, Gatineau, Quebec, K1A 0S5, Canada; telephone: (819) 956-6825; Fax: (819) 956-7827.
(4) Any person in Canada producing defense items for the Canadian government may also obtain priority rating authority for items to be purchased in the United States by applying to the Canadian Public Works and Government Services Canada, Acquisitions Branch, Business Management Directorate, in accordance with its procedures.
(5) Persons in Canada needing special priorities assistance in obtaining defense items in the United States may apply to the Canadian Public Works and Government Services Canada, Acquisitions Branch, Business Management Directorate, for such assistance. Public Works and Government Services Canada will forward appropriate requests to the U.S. Department of Commerce.
(6) Any person in the United States requiring assistance in obtaining items in Canada must submit a request through the Delegate Agency to Commerce on Form BIS-999. Commerce will forward appropriate requests to the Canadian Public Works and Government Services Canada.
(c)
(i) If the end product is being acquired by a U.S. government agency, the request should be submitted to the Office of the Deputy Under Secretary of Defense (Industrial Policy) through the U.S. contract administration representative.
(ii) If the end product is being acquired by a foreign nation, the request must be sponsored prior to its submission to the Office of the Deputy Under Secretary of Defense (Industrial Policy) by the government of the foreign nation that will use the end product.
(2) If the Department of Defense endorses the request, it will be forwarded to Commerce for appropriate action.
(d)
(1) The U.S. Department of Defense has entered into bilateral security of supply arrangements with Italy, The Netherlands, Sweden, and the United Kingdom that allow the U.S. Department of Defense to request the priority delivery for U.S. Department of Defense contracts, subcontracts, and orders from companies in these countries.
(2) Any person in the United States requiring assistance in obtaining the priority delivery of a contract, subcontract, or order in Italy, The Netherlands, Sweden, or the United Kingdom to support an approved program should contact the Office of the Deputy Under Secretary of Defense (Industrial Policy) for assistance. Persons in Italy, The Netherlands, Sweden, and the United Kingdom should request assistance in accordance with § 700.55(c)(1).
(a) Commerce may, from time-to-time, take specific official actions to implement or enforce the provisions of this regulation.
(b) Several of these official actions (Rating Authorizations, Directives, and Letters of Understanding) are discussed in this subpart. Other official actions which pertain to compliance (Administrative Subpoenas, Demands for Information, and Inspection Authorizations) are discussed in § 700.71(c).
(a) A Rating Authorization is an official action granting specific priority rating authority that:
(1) Permits a person to place a priority rating on an order for an item not normally ratable under this regulation; or
(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.
(b) To request priority rating authority, see § 700.51.
(a) A Directive is an official action which requires a person to take or refrain from taking certain actions in accordance with its provisions.
(b) A person must comply with each Directive issued. However, a person may not use or extend a Directive to obtain any items from a supplier, unless expressly authorized to do so in the Directive.
(c) Directives take precedence over all DX rated orders, DO rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
(a) A Letter of Understanding is an official action which may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (Commerce, the Delegate Agency, the supplier, and the customer).
(b) A Letter of Understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this regulation, or to take other official actions. Rather, Letters of Understanding are used to confirm production or shipping schedules which do not require modifications to other rated orders.
(a) Compliance actions may be taken for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act, the
(b) Any person who places or receives a rated order should be thoroughly familiar with, and must comply with, the provisions of this regulation.
(c) Willful violation of any of the provisions of Title I or section 705 of the Defense Production Act, this regulation, or an official action of the Department of Commerce, is a criminal act, punishable as provided in the Defense Production Act and as set forth in § 700.74 of this regulation.
(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act, the Selective Service Act and related statutes, this regulation, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this regulation.
(b) When undertaking an audit, investigation, or other inquiry, the Department of Commerce shall:
(1) Define the scope and purpose in the official action given to the person under investigation, and
(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.
(c) In administering this regulation, Commerce may issue the following documents which constitute official actions:
(1)
(2)
(3)
(d) The production of books, records, documents, other writings and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of Commerce is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Commerce as to the content of the material.
(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail—Return Receipt Requested at the person's last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone of suitable age and discretion at the person's last known dwelling or place of business.
(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.
(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.
(a) If a person refuses to permit a duly authorized representative of Commerce to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or official actions, the Commerce representative may seek compulsory process. Compulsory process means the institution of appropriate legal action, including
(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Director of the Office of Strategic Industries and Economic Security, U.S. Department of Commerce, in consultation with the Chief Counsel for Industry and Security, U.S. Department of Commerce, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.
(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, Commerce may inform the person in writing where compliance with the requirements of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action were not met.
(b) In cases where Commerce determines that failure to comply with the provisions of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willfull violation of the Defense Production Act, this regulation, or an official action.
(a) Willful violation of the provisions of Title I or Sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes, this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalty provided by the Defense Production Act is a $10,000 fine, or one year in prison, or both. The
(b) The government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this regulation, or an official action.
(c) In order to secure the effective enforcement of the Defense Production Act, this regulation, and official actions, the following are prohibited (see section 704 of the Defense Production Act; see also, for example, sections 2 and 371 of Title 18, United States Code):
(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act, this regulation, or an official action.
(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act, this regulation, or an official action.
(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act, this regulation, or an official action. In such instances, the person must immediately notify the Department of Commerce that, in accordance with this provision, delivery has not been made.
If compliance with any provision of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act, this regulation, or an official action, the person must immediately notify the Department of Commerce for resolution of the conflict.
(a) A person may submit a request to the Office of Strategic Industries and Economic Security, U.S. Department of Commerce, for an adjustment or exception on the ground that:
(1) A provision of this regulation or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or
(2) The consequence of following a provision of this regulation or an official action is contrary to the intent of the Defense Production Act, the Selective Service Act and related statutes, or this regulation.
(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this regulation or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.
(c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provision of this regulation or official action in question while the request is being considered unless such interim relief is granted in writing by the Office of Strategic Industries and Economic Security.
(d) A decision of the Office of Strategic Industries and Economic Security under this section may be appealed to the Assistant Secretary for Export Administration, U.S. Department of Commerce. (For information on the appeal procedure, see § 700.81.)
(a) Any person who has had a request for adjustment or exception denied by the Office of Strategic Industries and Economic Security under § 700.80, may appeal to the Assistant Secretary for
(b) An appeal must be received by the Office of the Assistant Secretary for Export Administration, Bureau of Industry and Security, U.S. Department of Commerce, Washington, D. C. 20230, Ref: DPAS, no later than 45 days after receipt of a written notice of denial from the Office of Strategic Industries and Economic Security. After this 45-day period, an appeal may be accepted at the discretion of the Assistant Secretary for Export Administration for good cause shown.
(c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.
(d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Assistant Secretary for Export Administration.
(e) When a hearing is granted, the Assistant Secretary for Export Administration may designate an employee of the Department of Commerce to conduct the hearing and to prepare a report. The hearing officer shall determine all procedural questions and impose such time or other limitations deemed reasonable. In the event that the hearing officer decides that a printed transcript is necessary, all expenses shall be borne by the appellant.
(f) When determining an appeal, the Assistant Secretary for Export Administration may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Commerce, or consult with any other persons or groups.
(g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provision of this regulation or official action in question while the appeal is being considered unless such relief is granted in writing by the Assistant Secretary for Export Administration.
(h) The decision of the Assistant Secretary for Export Administration shall be made within a reasonable time after receipt of the appeal and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision.
A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this regulation, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority.
(a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this regulation (OMB control number 0694-0053) or an official action.
(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this regulation or any official action. However, this regulation does not specify any particular method or system to be used.
(c) Records required to be maintained by this regulation must be made available for examination on demand by duly authorized representatives of Commerce as provided in § 700.71.
(d) In addition, persons must develop, maintain, and submit any other records and reports to Commerce that may be required for the administration of the Defense Production Act, the Selective Service Act and related statutes, and this regulation.
(e) Section 705(e) of the Defense Production Act provides that information obtained under this section which the
(a) This regulation and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.
(b) This regulation and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.
(c) This regulation and its schedules shall not be construed to affect any administrative actions taken by Commerce, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules or delegations of authority under the Defense Materials System and Defense Priorities System previously issued by Commerce. Such actions, contracts, or orders shall continue in full force and effect under this regulation unless modified or terminated by proper authority.
(d) The repeal of the regulations, orders, schedules and delegations of authority of the Defense Materials System (DMS) and Defense Priorities System (DPS) shall not have the effect to release or extinguish any penalty or liability incurred under the DMS/DPS. The DMS/DPS shall be treated as still remaining in force for the purpose of sustaining any action for the enforcement of such penalty or liability.
All communications concerning this regulation, including requests for copies of the regulation and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Office of Strategic Industries and Economic Security, Room 3876, U.S. Department of Commerce, Washington, DC 20230, Ref: DPAS; telephone: (202) 482-3634 or fax: (202) 482-5650.
The programs listed in this schedule have been approved for priorities and allocations support under this part. They have equal preferential status. The Department of Commerce has authorized the Delegate Agencies to use this part in support of those programs assigned to them, as indicated below.
Title I, sec. 124, Pub. L 102-558, 106 Stat. 4207 (50 U.S.C App. 2099).
The Defense Production Act Amendments of 1992 require the Secretary of Commerce to promulgate regulations for U.S. firms entering into contracts for the sale of defense articles or defense services to foreign countries or foreign firms that are subject to offset agreements exceeding $5,000,000 in value to furnish information regarding such agreements. The Secretary of Commerce has designated the Bureau of Industry and Security as the organization responsible for implementing this provision. The information provided by U.S. firms will be aggregated and used to determine the impact of offset transactions on the defense preparedness, industrial competitiveness, employment, and trade of the United States. Summary reports will be submitted annually to the Congress pursuant Section 309 of the Defense Production Act of 1950, as amended.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a) This rule applies to U.S. firms entering contracts for the sale of defense articles or defense services (as defined in the Arms Export Control Act and International Traffic in Arms Regulations) to a foreign country or foreign firm for which the contract is subject to an offset agreement exceeding $5,000,000 in value.
(b) This rule applies to all offset transactions completed in performance of existing offset commitments since January 1, 1993 for which offset credit of $250,000 or more has been claimed from the foreign representative, and new offset agreements entered into since that time.
(a) To avoid double counting, firms should report only offset transactions for which they are directly responsible for reporting to the foreign customer (i.e., prime contractors should report
(b) Reports should be delivered to the Offsets Program Manager, U.S. Department of Commerce, Office of Strategic Industries and Economic Security, Bureau of Industry and Security, Room 3878, 14th Street and Pennsylvania Avenue, N.W., Washington DC 20230. The first industry reports should be submitted to the Bureau of Industry and Security not later than March 15, 1995 and should cover offset transactions completed during the calendar year 1993, as well as information regarding unfulfilled offset agreements. After this initial submission, companies should provide information once yearly not later than June 15 covering the preceding calendar year. All submissions should include a point of contact (name and telephone number) and should be by a company official authorized to provide such information.
(c) Companies may submit this information in computerized spreadsheet/database format (e.g., Lotus 1-2-3, Quattro Pro, dbase IV) using a 3.5 inch 1.44 megabyte diskette, accompanied by a printed copy.
(d)
(i) Name of Country—Country of entity purchasing the weapon system, defense item or service subject to offset.
(ii) Name or Description of Weapon system, Defense Item, or Service Subject to Offset.
(iii) Name of Offset Fulfilling Entity—Entity fulfilling offset transaction (including first tier subcontractors).
(iv) Name of Offset Receiving Entity—Entity receiving benefits from offset transaction.
(v) Offset Credit Value—Dollar value credits claimed by fulfilling entity including any intangible factors/multipliers.
(vi) Actual Offset Value—Dollar value of the offset transaction without multipliers/intangible factors.
(vii) Description of Offset Product/Service—Short description of the type of offset (e.g., coproduction, technology transfer, subcontract activity, training, purchase, cash payment, etc.).
(viii) Broad Industry Category—Broad classification of the industry in which the offset transaction was fulfilled (e.g., aerospace, electronics, chemicals, industrial machinery, textiles, etc.). Firms may request a list of the Standard Industry Classification (SIC) codes to assist in identifying an appropriate industry category. Forward such requests to the Offsets Program Manager, U.S. Department of Commerce, Office of Strategic Industries and Economic Security, Bureau of Industry and Security, Room 3878, 14th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20230 or Fax 202-482-5650.
(ix) Direct or Indirect Offset—Specify whether the offset transaction was direct or indirect offset.
(x) Name of Country in Which Offset was Fulfilled—United States, purchasing country, or third country.
(2) Offset transactions of the same type (same fulfilling entity, receiving entity, and offset product/service) completed during the same reporting period may be combined.
(3) Any necessary comments or explanations relating to the above information should be footnoted and supplied on separate sheets attached to the report.
(e)
(i) Name of Country—Country of entity purchasing the weapon system, defense item, or service subject to offset;
(ii) Name or Description of Weapon System, Defense Item, or Service Subject to Offset;
(iii) Names/Titles of Signatories to the Offset Agreement;
(iv) Value of Export Sale Subject to Offset (approximate);
(v) Total Value of the Offset Agreement;
(vi) Term of Offset Agreement (months);
(vii) Description of Performance Measures—(e.g., “Best Efforts,” Liquidated Damages, (describe)).
(2) [Reserved]
(a) As provided by § 309(c) of the Defense Production Act of 1950, as amended, BIS shall not publicly disclose the information it receives pursuant to this part, unless the firm furnishing the information subsequently specifically authorizes public disclosure.
(b) Public disclosure must be authorized in writing by an official of the firm competent to make such an authorization.
(c) Nothing in this provision shall prevent the use of data aggregated from information provided pursuant to this part in the summary report to the Congress described in § 701.1.
Sec. 232, Trade Expansion Act of 1962, as amended (19 U.S.C. 1862).
As used in this part:
These regulations set forth the procedures by which the Department shall commence and conduct an investigation to determine the effect on the national security of the imports of any article. Based on this investigation, the Secretary shall make a report and recommendation to the President for action or inaction regarding an adjustment of the imports of the article.
(a) Upon request of the head of any government department or agency, upon application of an interested party, or upon motion of the Secretary, the Department shall immediately conduct an investigation to determine the effect on the national security of the imports of any article.
(b) The Secretary shall immediately provide notice to the Secretary of Defense of any investigation initiated under this part.
(a) To determine the effect on the national security of the imports of the article under investigation, the Department shall consider the quantity of the article in question or other circumstances related to its import. With regard for the requirements of national security, the Department shall also consider the following:
(1) Domestic production needed for projected national defense requirements;
(2) The capacity of domestic industries to meet projected national defense requirements;
(3) The existing and anticipated availabilities of human resources, products, raw materials, production equipment and facilities, and other
(4) The growth requirements of domestic industries to meet national defense requirements and the supplies and services including the investment, exploration and development necessary to assure such growth; and
(5) Any other relevant factors.
(b) In recognition of the close relation between the strength of our national economy and the capacity of the United States to meet national security requirements, the Department shall also, with regard for the quantity, availability, character and uses of the imported article under investigation, consider the following:
(1) The impact of foreign competition on the economic welfare of any domestic industry essential to our national security;
(2) The displacement of any domestic products causing substantial unemployment, decrease in the revenues of government, loss of investment or specialized skills and productive capacity, or other serious effects; and
(3) Any other relevant factors that are causing or will cause a weakening of our national economy.
(a) A request or application for an investigation shall be in writing. The original and 1 copy shall be filed with the Director, Office of Strategic Industries and Economic Security, Room 3876, U.S. Department of Commerce, Washington, DC 20230.
(b) When a request, application or motion is under investigation, or when an investigation has been completed pursuant to § 705.10 of this part, any subsequently filed request or application concerning imports of the same or related article that does not raise new or different issues may be either consolidated with the investigation in progress as provided in § 705.7(e) of this part, or rejected. In either event, an explanation for taking such action shall be promptly given to the applicant. If the request or application is rejected, it will not be returned unless requested by the applicant.
(c) Requests or applications shall describe how the quantity, availability, character, and uses of a particular imported article, or other circumstances related to its import, affect the national security, and shall contain the following information to the fullest extent possible:
(1) Identification of the applicant;
(2) A precise description of the article;
(3) Description of the domestic industry affected, including pertinent information regarding companies and their plants, locations, capacity and current output of the industry;
(4) Pertinent statistics on imports and domestic production showing the quantities and values of the article;
(5) Nature, sources, and degree of the competition created by imports of the article;
(6) The effect that imports of the article may have upon the restoration of domestic production capacity in the event of national emergency;
(7) Employment and special skills involved in the domestic production of the article;
(8) Extent to which the national economy, employment, investment, specialized skills, and productive capacity is or will be adversely affected;
(9) Revenues of Federal, State, or local Governments which are or may be adversely affected;
(10) National security supporting uses of the article including data on applicable contracts or sub-contracts, both past and current; and
(11) Any other information or advice relevant and material to the subject matter of the investigation.
(d) Statistical material presented should be, if possible, on a calendar-year basis for sufficient periods of time to indicate trends. Monthly or quarterly data for the latest complete years should be included as well as any other breakdowns which may be pertinent to show seasonal or short-term factors.
(a) Any information or material which the applicant or any other party desires to submit in confidence at any stage of the investigation that would
(b) The Department may refuse to accept as business confidential any information or material it considers not intended to be protected under the legal authority claimed by the applicant, or under other applicable legal authority. Any such information or material so refused shall be promptly returned to the submitter and will not be considered. However, such information or material may be resubmitted as non-confidential in which case it will be made part of the public record.
(a) If the Department determines that it is appropriate to afford interested parties an opportunity to present information and advice relevant and material to an investigation, a public notice shall be published in the
(b) All requests and applications filed and all material submitted by interested parties, except information on material that is classified or determined to be confidential as provided in § 705.6 of this part, will be available for public inspection and copying in the Bureau of Industry and SecurityFreedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, Washington, DC 20230, in accordance with regulations published in part 4 of title 15, Code of Federal Regulations.
(c) Further information may be requested by the Department from other sources through the use of questionnaires, correspondence, or other appropriate means.
(d) The Department shall, as part of an investigation, seek information and advice from, and consult with, appropriate officers of the United States or their designees, as shall be determined. The Department shall also consult with the Secretary of Defense regarding the methodological and policy questions raised in the investigation. Upon the request of the Secretary, the Secretary of Defense shall provide the Secretary with an assessment of the defense requirements of the article in question. Communications received from agencies of the U.S. government or foreign governments will not be made available for public inspection.
(e) Any request or application that is filed while an investigation is in progress, concerning imports of the same or related article and raising similar issues, may be consolidated with the request, application or motion that initiated the investigation.
(a) If it is deemed appropriate by the Department, public hearings may be held to elicit further information.
(1) A notice of hearing shall be published in the
(2) Hearings shall be open to the public unless national security classified information will be presented. In that event the presiding officer at the hearing shall close the hearing, as necessary, to all persons not having appropriate security clearances or not otherwise authorized to have access to such information. If it is known in sufficient time prior to the hearing that national security classified information will be presented the notice of hearing published in the
(b) Hearings shall be conducted as follows:
(1) The Department shall appoint the presiding officer;
(2) The presiding officer shall determine all procedural matters during the hearing;
(3) Interested parties may appear, either in person or by representation, and produce oral or written information relevant and material to the subject matter of the investigation;
(4) Hearings will be fact-finding proceedings without formal pleadings or adverse parties. Formal rules of evidence will not apply;
(5) After a witness has testified, the presiding officer may question the witness. Questions submitted to the presiding officer in writing by any interested party may, at the discretion of the presiding officer, be posed to the witness. No cross examination of any witness by a party shall be allowed.
(6) Each hearing will be stenographically reported. Transcripts of the hearing, excluding any national security classified information, may be purchased from the Department at actual cost of duplication, and will be available for public inspection in the Bureau of Industry and Security Freedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, Washington, DC 20230.
In emergency situations, or when in the judgment of the Department, national security interests require it, the Department may vary or dispense with any or all of the procedures set forth in § 705.7 of this part.
(a) When an investigation conducted pursuant to this part is completed, a report of the investigation shall be promptly prepared.
(b) The Secretary shall report to the President the findings of the investigation and a recommendation for action or inaction within 270 days after beginning an investigation under this part.
(c) An Executive Summary of the Secretary's report to the President of an investigation, excluding any classified or proprietary information, shall be published in the
(a) Upon the submission of a report to the President by the Secretary under § 705.10(b) of this part, in which the Department has found that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, the President is required by Section 232(c) of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862(c)) to take the following action
(1) Within 90 days after receiving the report from the Secretary, the President shall determine:
(i) Whether the President concurs with the Department's finding; and
(ii) If the President concurs, the nature and duration of the action that must be taken to adjust the imports of the article and its derivatives so that the such imports will not threaten to impair the national security.
(2) If the President determines to take action under this section, such action must be taken no later than fifteen (15) days after making the determination.
(3) By no later than thirty (30) days after making the determinations under paragraph (a)(1) of this section, the President shall submit to the Congress a written statement of the reasons why the President has decided to take action, or refused to take action.
(b) If the action taken by the President under this section is the negotiation of an agreement to limit or restrict the importation into the United States of the article in question, and either no such agreement is entered into within 180 days after making the determination to take action, or an executed agreement is not being carried out or is ineffective in eliminating the threat to the national security, the President shall either:
(1) Take such other action as deemed necessary to adjust the imports of the article so that such imports will not threaten to impair the national security. Notice of any such additional action taken shall be published in the
(2) Not take any additional action. This determination and the reasons on which it is based, shall be published in the
(a) Upon the disposition of each request, application, or motion made under this part, a report of such disposition shall be submitted by the Secretary to the Congress and published in the
(b) As required by Section 232(e) of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862(c)), the President shall submit to the Congress an annual report on the operation of this part.
22 U.S.C. 6701
The following are definitions of terms used in the CWCR (parts 710 through 729 of this subchapter, unless otherwise noted):
(1) Toxic chemicals and their precursors, except where intended for purposes not prohibited under the Chemical Weapons Convention (CWC), provided that the type and quantity are consistent with such purposes;
(2) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in paragraph (1) of this definition, which would be released as a result of the employment of such munitions and devices;
(3) Any equipment specifically designed for use directly in connection with the employment of munitions or devices specified in paragraph (2) of this definition.
(1) Small administrative area;
(2) Storage/handling areas for feedstock and products;
(3) Effluent/waste handling/treatment area;
(4) Control/analytical laboratory;
(5) First aid service/related medical section; and
(6) Records associated with the movement into, around, and from the site, of declared chemicals and their feedstock or product chemicals formed from them, as appropriate.
(1) Administration and other offices;
(2) Repair and maintenance shops;
(3) Medical center;
(4) Utilities;
(5) Central analytical laboratory;
(6) Research and development laboratories;
(7) Central effluent and waste treatment area; and
(8) Warehouse storage.
(1) Production of Schedule 1 chemicals means formation through chemical synthesis as well as processing to extract and isolate Schedule 1 chemicals.
(2) Production of a Schedule 2 or Schedule 3 chemical means all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.
(1) Any peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity;
(2) Any purpose directly related to protection against toxic chemicals and to protection against chemical weapons;
(3) Any military purpose of the United States that is not connected with the use of a chemical weapon and that is not dependent on the use of the toxic or poisonous properties of the chemical weapon to cause death or other harm; or
(4) Any law enforcement purpose, including any domestic riot control purpose and including imposition of capital punishment.
The Chemical Weapons Convention Regulations (parts 710 through 729 of this subchapter), or CWCR, implement certain obligations of the United States under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, known as the CWC or Convention.
(a)
(i) Department of Defense facilities;
(ii) Department of Energy facilities; and
(iii) Facilities of other U.S. Government agencies that notify the USNA of their decision to be excluded from the CWCR.
(2) For purposes of the CWCR, “United States Government facilities” are those facilities owned and operated by a U.S. Government agency (including those operated by contractors to the agency), and those facilities leased to and operated by a U.S. Government agency (including those operated by contractors to the agency). “United States Government facilities” do not include facilities owned by a U.S. Government agency and leased to a private company or other entity such that the private company or entity may independently decide for what purposes to use the facilities.
(b)
(a)
(i) Develop, produce, otherwise acquire, stockpile, or retain chemical
(ii) Use chemical weapons;
(iii) Engage in any military preparations to use chemical weapons; or
(iv) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited by the Convention.
(2) One objective of the Convention is to assure States Parties that lawful activities of chemical producers and users are not converted to unlawful activities related to chemical weapons. To achieve this objective and to give States Parties a mechanism to verify compliance, the Convention requires the United States and all other States Parties to submit declarations concerning chemical production, consumption, processing and other activities, and to permit international inspections within their borders.
(b)
The following provides examples of the types of industries that may be affected by the CWCR (parts 710 through 729 of this subchapter). These examples are not exhaustive, and you should refer to parts 712 through 715 of the CWCR to determine your obligations.
(a) Schedule 1 chemicals are listed in Supplement No. 1 to part 712 of the CWCR. Schedule 1 chemicals have little or no use in industrial and agricultural industries, but may have limited use for research, pharmaceutical, medical, public health, or protective purposes.
(b) Schedule 2 chemicals are listed in Supplement No. 1 to part 713 of the CWCR. Although Schedule 2 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as:
(1) Flame retardant additives and research;
(2) Dye and photographic industries (e.g., printing ink, ball point pen fluids, copy mediums, paints, etc.);
(3) Medical and pharmaceutical preparation (e.g., anticholinergics, arsenicals, tranquilizer preparations);
(4) Metal plating preparations;
(5) Epoxy resins; and
(6) Insecticides, herbicides, fungicides, defoliants, and rodenticides.
(c) Schedule 3 chemicals are listed in Supplement No. 1 to part 714 of the CWCR. Although Schedule 3 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as:
(1) The production of:
(i) Resins;
(ii) Plastics;
(iii) Pharmaceuticals;
(iv) Pesticides;
(v) Batteries;
(vi) Cyanic acid;
(vii) Toiletries, including perfumes and scents;
(viii) Organic phosphate esters (e.g., hydraulic fluids, flame retardants, surfactants, and sequestering agents); and
(2) Leather tannery and finishing supplies.
(d) Unscheduled discrete organic chemicals are used in a wide variety of commercial industries, and include acetone, benzoyl peroxide and propylene glycol.
The CWCR (parts 710 through 729 of this subchapter) implement certain provisions of the Chemical Weapons Convention under the authority of the
Certain obligations of the U.S. Government under the CWC pertain to exports and imports. The obligations on exports are implemented in the Export Administration Regulations (EAR) (15 CFR parts 730 through 799) and the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130). See in particular §§ 742.2 and 742.18 and part 745 of the EAR, and Export Control Classification Numbers 1C350, 1C351, 1C355 and 1C395 of the Commerce Control List (Supplement No. 1 to part 774 of the EAR). The obligations on imports are implemented in the Chemical Weapons Convention Regulations (§§ 712.2 and 713.1) and the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447.
* For export control purposes, these destinations are identified using a different nomenclature under the Commerce Country Chart in Supplement No. 1 to part 738 of the Export Administration Regulations (EAR) (15 CFR parts 730-799).
** For export control purposes, Cook Islands and Niue are not identified on the Commerce Country Chart in Supplement No. 1 to part 738 of the EAR and are treated the same as New Zealand, in accordance with § 738.3(b) of the EAR.
*** For CWC States Parties purposes, a territory, possession, or department of any country that is listed in this Supplement as a State Party to the CWC, is treated the same as the country of which it is a territory, possession, or department (e.g., China includes Hong Kong and Macau; the Netherlands includes Aruba and the Netherlands Antilles).
22 U.S.C. 6701
Parts 712 through 715 of the CWCR (parts 710 through 729 of this subchapter) describe the declaration, advance notification and reporting requirements for Schedule 1, 2 and 3 chemicals and for unscheduled discrete organic chemicals (UDOCs). For each
The owner, operator, or senior management official of a facility subject to declaration, reporting, or advance notification requirements under the CWCR (parts 710 through 729 of this subchapter) is responsible for the submission of all required documents in accordance with all applicable provisions of the CWCR.
Periodically, BIS will request information from persons and facilities subject to the CWCR to determine compliance with the reporting, declaration and notification requirements set forth herein. Information requested may relate to the production, processing, consumption, export, import, or other activities involving scheduled chemicals and unscheduled discrete organic chemicals described in parts 712 through 715 of the CWCR. Any person or facility subject to the CWCR and receiving such a request for information will be required to provide a response to BIS within 30 working days of receipt of the request. This requirement does not, in itself, impose a requirement to create new records or maintain existing records in a manner other than that directed by the recordkeeping provisions set forth in part 721 of the CWCR.
(a)
(2) Include the following information in each chemical determination request:
(i) Date of request;
(ii) Company name and complete street address;
(iii) Point of contact;
(iv) Phone and facsimile number of contact;
(v) E-mail address of contact, if you want an acknowledgment of receipt sent via e-mail;
(vi) Chemical Name;
(vii) Structural formula of the chemical, if the chemical is not specifically identified by name and chemical abstract service registry number in Supplements No. 1 to parts 712 through 714 of the CWCR; and
(viii) Chemical Abstract Service registry number, if assigned.
(b)
Numerical information submitted in declarations and reports is to be provided per applicable rounding rules in each part (
(a) Forms to complete declarations and reports required by the CWCR may be obtained by contacting: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Forms and forms software may also be downloaded from the Internet at www.cwc.gov.
(b) If the amount of information you are required to submit is greater than the given form will allow, multiple copies of forms may be submitted.
Declarations, reports and advance notifications required by the CWCR must be sent to: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, 1555 Wilson Blvd., Suite 700, Arlington, VA 22209-2405, Telephone: (703) 605-4400. Advanced notifications may also be sent by facsimile to (703) 235-1481. Specific types of declarations and reports and due dates are outlined in Supplement No. 2 to parts 712 through 715 of the CWCR.
(a)
(b)
(1)
You must submit a separate request for each facility, plant site or trading company owned by your company (e.g., each site that is assigned a unique U.S. Code Number).
(2)
When persons must have access to multiple Web-DESI accounts, their companies must identify such persons on the approval request for each of these Web-DESI accounts. BIS will coordinate with such persons to ensure that the assigned user name and password is the same for each account.
(ii) Your company may reveal the facility, plant site or trading company password (USC password) only to Web-DESI users with valid passwords, their supervisors, and employees or agents of the company with a commercial justification for knowing the password.
(iii) If you are an authorized Web-DESI account user, you may not:
(A) Disclose your user name or password to anyone;
(B) Record your user name or password, either in writing or electronically;
(C) Authorize another person to use your user name or password; or
(D) Use your user name or password following termination, either by BIS or by your company, of your authorization or approval for Web-DESI use.
(iv) To prevent misuse of the Web-DESI account:
(A) If Web-DESI user account information (i.e., user name and password) is lost, stolen or otherwise compromised, the company and the user must report the loss, theft or compromise of the user account information, immediately, by calling BIS at (703) 235-1335. Within two business days of making the report, the company and the user must submit written confirmation to BIS at the address provided in § 711.6 of the CWCR.
(B) Your company is responsible for immediately notifying BIS whenever a Web-DESI user leaves the employ of the company or otherwise ceases to be authorized by the company to submit declarations and reports electronically on its behalf.
(v) No person may use, copy, appropriate or otherwise compromise a Web-DESI account user name or password assigned to another person. No person, except a person authorized access by the company, may use or copy the facility, plant site or trading company password (USC password), nor may any person steal or otherwise compromise this password.
(c)
(2)
(d)
22 U.S.C. 6701
Facilities that produce, export or import mixtures containing less than 0.5% aggregate quantities of Schedule 1 chemicals (see Supplement No. 1 to this part) as unavoidable by-products or impurities may round to zero and are not subject to the provisions of this part 712. Schedule 1 content may be calculated by volume or weight, whichever yields the lesser percent. Note that such mixtures may be subject to the regulatory requirements of other federal agencies.
(a) You may not produce Schedule 1 chemicals for protective purposes.
(b) You may not import any Schedule 1 chemical unless:
(1) The import is from a State Party;
(2) The import is for research, medical, pharmaceutical, or protective purposes;
(3) The import is in types and quantities strictly limited to those that can be justified for such purposes; and
(4) You have notified BIS at least 45 calendar days prior to the import, pursuant to § 712.6 of the CWCR.
Pursuant to § 712.6, advance notifications of import of saxitoxin of 5 milligrams or less for medical/diagnostic purposes must be submitted to BIS at least 3 days prior to import.
For specific provisions relating to the prior advance notification of exports of all Schedule 1 chemicals, see § 745.1 of the Export Administration Regulations (EAR) (15 CFR parts 730 through 799). For specific provisions relating to license requirements for exports of Schedule 1 chemicals, see § 742.2 and § 742.18 of the EAR for Schedule 1 chemicals subject to the jurisdiction of the Department of Commerce and see
(c)(1) The provisions of paragraphs (a) and (b) of this section do not apply to the retention, ownership, possession, transfer, or receipt of a Schedule 1 chemical by a department, agency, or other entity of the United States, or by a person described in paragraph (c)(2) of this section, pending destruction of the Schedule 1 chemical;
(2) A person referred to in paragraph (c)(1) of this section is:
(i) Any person, including a member of the Armed Forces of the United States, who is authorized by law or by an appropriate officer of the United States to retain, own, possess transfer, or receive the Schedule 1 chemical; or
(ii) In an emergency situation, any otherwise non-culpable person if the person is attempting to seize or destroy the Schedule 1 chemical.
Initial declarations submitted in February 2000 remain valid until amended or rescinded. If you plan to change/amend the technical description of your facility submitted with your initial declaration, you must submit an amended initial declaration to BIS 200 calendar days prior to implementing the change (see § 712.5(b)(1)(ii) of the CWCR).
(a)
(2) New Schedule 1 production facilities that submit an initial declaration pursuant to paragraph (a)(1) of this section are considered approved Schedule 1 production facilities for purposes of the CWC, unless otherwise notified by BIS within 30 days of receipt by BIS of that initial declaration.
(b)
(c) Two hundred days after a new Schedule 1 production facility submits its initial declaration, it is subject to the declaration requirements in § 712.5(a)(1) and (a)(2) and § 712.5(b)(1)(ii) of the CWCR.
(a)
(2)
(b)
(ii) If you plan to change the technical description of your facility from your initial declaration completed and submitted pursuant to § 712.3 or § 712.4 of the CWCR, you must submit an amended initial declaration to BIS 200 calendar days prior to the change. Such amendments to your initial declaration must be made by completing a Certification Form, Form 1-1 and Form A, including the new description of the facility. See § 712.7 of the CWCR for additional instructions on amending Schedule 1 declarations.
(2)
(3)
(c)
(d) For the purpose of determining if a Schedule 1 chemical is subject to declaration, you must declare a Schedule 1 chemical that is an intermediate, but not a transient intermediate.
(e)
(f)
(g)
Pursuant to the Convention, the United States is required to notify the OPCW not less than 30 days in advance of every export or import of a Schedule 1 chemical, in any quantity, to or from another State Party. In addition, the United States is required to provide a report of all exports and imports of Schedule 1 chemicals to or from other States Parties during each calendar year. If you plan to export or import any quantity of a Schedule 1 chemical from or to your declared facility, undeclared facility or trading company, you must notify BIS in advance of the export or import and complete an annual report of exports and imports that actually occurred during the previous calendar year. The United States will transmit to the OPCW the advance notifications and a detailed annual declaration of each actual export or import of a Schedule 1 chemical from/to the United States. Note that the advance notification and annual report requirements of this section do not relieve you of any requirement to obtain a license for export of Schedule 1 chemicals subject to the EAR or ITAR or a license for import of Schedule 1 chemicals from the Department of Justice under the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447. Only “declared” facilities, as defined in § 712.5(e) of the CWCR, are subject to initial and routine inspections pursuant to part 716 of the CWCR.
(a)
(1) Advance notifications should be on company letterhead or must clearly identify the reporting entity by name of company, complete address, name of contact person and telephone and facsimile numbers, along with the following information:
(i) Chemical name;
(ii) Structural formula of the chemical;
(iii) Chemical Abstract Service (CAS) Registry Number;
(iv) Quantity involved in grams;
(v) Planned date of export or import;
(vi) Purpose (end-use) of export or import (i.e., research, medical, pharmaceutical, or protective purposes);
(vii) Name(s) of exporter and importer;
(viii) Complete street address(es) of exporter and importer;
(ix) U.S. export license or control number, if known; and
(x) Company identification number, once assigned by BIS.
(2) Send the advance notification by facsimile to (703) 235-1481 or to the following address for mail and courier deliveries: Treaty Compliance Division, Bureau of Industry and Security, Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, VA 22209-2405, Attn: “Advance Notification of Schedule 1 Chemical [Export] [Import].”
(3) Upon receipt of the advance notification, BIS will inform the exporter or importer of the earliest date after which the shipment may occur under the advance notification procedure. To export a Schedule 1 chemical subject to an export license requirement either
(b)
(1)
(2)
(
(2)
(B) If your facility declared production of a Schedule 1 chemical and exported or imported any amount of a different Schedule 1 chemical, you must report the export or import by submitting either:
(
(
(ii) If you are an undeclared facility, trading company, or any other person subject to the CWCR, and you exported or imported any amount of a Schedule 1 chemical, you must report the export or import by submitting a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional.
(c) Paragraph (a) of this section does not apply to the activities and persons set forth in § 712.2(b) of the CWCR.
In order for BIS to maintain accurate information on previously submitted facility declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or report requirements, amended declarations or reports will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities and annual reports on exports and imports submitted for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.
(a)
(1) Types of Schedule 1 chemicals produced (e.g., additional Schedule 1 chemicals);
(2) Quantities of Schedule 1 chemicals produced;
(3) Activities involving Schedule 1 chemicals; and
(4) End-use of Schedule 1 chemicals (e.g., additional end-use(s)).
(b)
(1) Types of Schedule 1 chemicals exported or imported (e.g., additional Schedule 1 chemicals);
(2) Quantities of Schedule 1 chemicals exported or imported;
(3) Destination(s) of Schedule 1 chemicals exported;
(4) Source(s) of Schedule 1 chemicals imported;
(5) Activities involving exports and imports of Schedule 1 chemicals; and
(6) End-use(s) of Schedule 1 chemicals exported or imported (e.g., additional end-use(s)).
(c)
(i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), and facsimile number(s);
(iii) Company name (see § 712.7(c)(2) of the CWCR for other company changes);
(iv) Company mailing address;
(v) Facility name;
(vi) Facility owner, including telephone number, and facsimile number; and
(vii) Facility operator, including telephone number, and facsimile number.
(2)
(i) Information that must be submitted to BIS by the company selling a declared facility:
(A) Name of seller (
(B) Name of the declared facility and U.S. Code Number for that facility;
(C) Name of purchaser (
(D) Date of ownership transfer or change;
(E) Additional details on sale of the declared facility relevant to ownership or operational control over any portion of that facility (e.g., whether the entire facility or only a portion of the declared facility has been sold to a new owner); and
(F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company.
(
(
(
(
(ii) Information that must be submitted to BIS by the company purchasing a declared facility:
(A) Name of purchaser (
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
(D) Name of inspection points of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e-mail address(es);
(E) Name of the declared facility and U.S. Code Number for that facility;
(F) Location of the declared facility;
(G) Owner and operator of the declared facility, including telephone number, and facsimile number; and
(H) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company.
(
(
(
(
You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.
You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared facility or trading company.
For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the facility or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers for the new facilities.
(d)
(e)
(f)
(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or
(2) Both of the following:
(i) A new Certification Form (
(ii) The specific forms (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the provisions of this part 712, to amend your declaration or report.
If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter.
Declarations, reports, advance notifications, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 712. Required declarations, reports, advance notifications, and amendments include:
(a) Annual declaration on past activities (Schedule 1 chemical production during the previous calendar year);
(b) Annual report on exports and imports of Schedule 1 chemicals from facilities, trading companies, and other persons (during the previous calendar year);
(c) Combined declaration and report (production of Schedule 1 chemicals, as well as exports or imports of the same or different Schedule 1 chemicals, by a declared facility during the previous calendar year);
(d) Annual declaration on anticipated activities (anticipated production of Schedule 1 chemicals in the next calendar year);
(e) Advance notification of any export to or import from another State Party;
(f) Initial declaration of a new Schedule 1 chemical production facility; and
(g) Amended declaration or report, including combined declaration and report.
22 U.S.C. 6701
(a) You may not export any Schedule 2 chemical (see Supplement No. 1 to this part) to any destination or import any Schedule 2 chemical from any destination other than a State Party to the Convention. See Supplement No. 1 to part 710 of the CWCR for a list of States that are party to the Convention.
See § 742.18 of the Export Administration Regulations (EAR) (15 CFR part 742) for prohibitions that apply to exports of Schedule 2 chemicals to States not Party to the CWC.
(b) Paragraph (a) of this section does not apply to:
(1) The export or import of a Schedule 2 chemical to or from a State not Party to the CWC by a department, agency, or other entity of the United States, or by any person, including a member of the Armed Forces of the United States, who is authorized by law, or by an appropriate officer of the United States to transfer or receive the Schedule 2 chemical;
(2) Mixtures containing Schedule 2A chemicals, if the concentration of each Schedule 2A chemical in the mixture is 1% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies);
(3) Mixtures containing Schedule 2B chemicals if the concentration of each Schedule 2B chemical in the mixture is 10% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies); or
(4) Products identified as consumer goods packaged for retail sale for personal use or packaged for individual use.
(a)
(i)
(
(
(
(B) In order to trigger a declaration requirement for a past activity (i.e., production, processing or consumption) involving a Schedule 2 chemical, a plant on your plant site must have exceeded the applicable declaration threshold for that particular activity during one or more of the previous three calendar years. For example, if a plant on your plant site produced 800 kilograms of thiodiglycol and consumed 300 kilograms of the same Schedule 2 chemical, during the previous calendar year, you would not have a declaration requirement based on these activities, because neither activity at your plant would have exceeded the declaration threshold of 1 metric ton for that Schedule 2 chemical. However, a declaration requirement would
To determine whether or not you have an annual declaration on past activities requirement for Schedule 2 chemicals, you must determine whether you produced, processed or consumed a Schedule 2 chemical above the applicable threshold at one or more plants on your plant site in any one of the three previous calendar years. For example, for the 2004 annual declaration on past activities period, if you determine that one plant on your plant site produced greater than 1 kilogram of the chemical BZ in calendar year 2002, and no plants on your plant site produced, processed or consumed any Schedule 2 chemical above the applicable threshold in calendar years 2003 or 2004, you still have a declaration requirement under this paragraph for the previous calendar year (2004). However, you must only declare on Form 2-3 (question 2-3.1), production data for calendar year 2004. You would declare “0” production because you did not produce BZ above the applicable threshold in calendar year 2004. Since the plant site did not engage in any other declarable activity (i.e., consumption, processing) in the 2002-2004 declaration period, you would leave blank questions 2-3.2 and 2-3.3 on Form 2-3. Note that declaring a “0” production quantity for 2004, as opposed to leaving the question blank, permits BIS to distinguish the activity that triggered the declaration requirement from activities that were not declarable during that period.
(ii)
A null “0” declaration is not required if you do not plan to produce, process or consume a Schedule 2 chemical in the next calendar year.
(2)
(ii) For the purpose of determining if a Schedule 2 chemical is subject to declaration, you must declare an intermediate Schedule 2 chemical, but not a transient intermediate Schedule 2 chemical.
(3)
(ii)
(iii)
(b)
(2)
(c)
(ii)
(2)
(d)
(e)
(a)
(2)
(i) A declared plant site that exported or imported a Schedule 2 chemical that was different than the Schedule 2 chemical produced, processed or consumed at one or more plants at the plant site above the applicable declaration threshold;
(ii) An undeclared plant site;
(iii) A trading company; or
(iv) Any other person subject to the CWCR.
A declared Schedule 2 plant site may need to declare exports or imports of Schedule 2 chemicals that it produced, processed or consumed above the applicable threshold and also report exports or imports of different Schedule 2 chemicals that it did not produce, process or consume above the applicable threshold quantities. The report may be submitted to BIS either with or separately from the annual declaration on past activities (see § 713.3(d) of the CWCR).
The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 2 chemicals contained in reports. The U.S. Government will add all export and import information contained in reports to export and import information contained in declarations to establish the U.S. national aggregate declaration on exports and imports.
Declared and undeclared plant sites must count, for declaration or reporting purposes, all exports from and imports to the
(b)
(i) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (See Schedule 2, paragraph A.3 included in Supplement No. 1 to this part);
(ii) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or 100 kilograms of Amiton: O,O Diethyl S-[2(diethylamino)ethyl] phosphorothiolate
(iii) 1 metric ton of any chemical listed in Schedule 2, Part B (see Supplement No.1 to this part).
(2)
See § 713.2(a)(2)(ii) of the CWCR for information on counting amounts of Schedule 2 chemicals contained
The “30% and above” mixtures rule applies only for declaration and reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non-State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see § 742.2, § 742.18 and § 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through130)).
(c)
(2)
(d)
(2)
(A) Submitting,
(B) Submitting,
(ii) If you are an undeclared plant site, trading company or any other person subject to the CWCR, you must complete the Certification Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional.
(e)
(2)
(a)
(i) You plan that a previously undeclared plant on your plant site under § 713.2(a)(1)(ii) of the CWCR will produce, process, or consume a Schedule 2 chemical above the applicable declaration threshold;
(ii) You plan to produce, process, or consume at a plant declared under § 713.2(a)(1)(ii) of the CWCR an additional Schedule 2 chemical above the applicable declaration threshold;
(iii) You plan an additional activity (production, processing, or consumption) at your declared plant above the applicable declaration threshold for a chemical declared under § 713.2(a)(1)(ii) of the CWCR;
(iv) You plan to increase the production, processing, or consumption of a Schedule 2 chemical by a plant declared under § 713.2(a)(1)(ii) of the CWCR from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see § 716.1(b)(2) of the CWCR);
(v) You plan to change the starting or ending date of anticipated production, processing, or consumption declared under § 713.2(a)(1)(ii) of the CWCR by more than three months; or
(vi) You plan to increase your production, processing, or consumption of a Schedule 2 chemical by a declared plant site by 20 percent or more above that declared under § 713.2(a)(1)(ii) of the CWCR.
(2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (vi) of this section, you also should declare changes to your declaration relating to the following activities. You do not have to submit an additionally planned declaration if you are only changing the following non-quantitative activities:
(i) Changes to the plant's production capacity;
(ii) Changes or additions to the product group codes for the plant site or the plant(s);
(iii) Changes to the plant's activity status (i.e., dedicated, multipurpose, or other status);
(iv) Changes to the plant's multipurpose activities;
(v) Changes to the plant site's status relating to domestic transfer of the chemical;
(vi) Changes to the plant site's purposes for which the chemical will be produced, processed or consumed; or
(vii) Changes to the plant site's status relating to exports of the chemical or the addition of new countries for export.
(b)
In order for BIS to maintain accurate information on previously submitted plant site declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or reporting requirements, amended declarations or reports will be required under the circumstances described in this section. This section applies only to annual declarations on past activities submitted for the three previous calendar years, annual reports on exports and imports for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.
(a)
(1) Types of Schedule 2 chemicals produced, processed, or consumed;
(2) Quantities of Schedule 2 chemicals produced, processed, or consumed;
(3) Activities involving Schedule 2 chemicals (production, processing, consumption);
(4) End-use of Schedule 2 chemicals (e.g., additional end-use(s));
(5) Product group codes for Schedule 2 chemicals produced, processed, or consumed;
(6) Production capacity for manufacturing a specific Schedule 2 chemical at particular plant site;
(7) Exports or imports (e.g., changes in the types of Schedule 2 chemicals exported or imported or in the quantity, recipients, or sources of such chemicals);
(8) Domestic transfers (e.g., changes in the types of Schedule 2 chemicals, types of destinations, or product group codes); and
(9) Addition of new plant(s) for the production, processing, or consumption of Schedule 2 chemicals.
(b)
(1) Types of Schedule 2 chemicals exported or imported (additional Schedule 2 chemicals);
(2) Quantities of Schedule 2 chemicals exported or imported;
(3) Destination(s) of Schedule 2 chemicals exported; and
(4) Source(s) of Schedule 2 chemicals imported.
(c)
(i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), facsimile number(s) and e-mail address(es);
(iii) Company name (see paragraph (c)(2) of this section for other company changes);
(iv) Company mailing address;
(v) Plant site name;
(vi) Plant site owner, including telephone number, and facsimile number;
(vii) Plant site operator, including telephone number, and facsimile number;
(viii) Plant name;
(ix) Plant owner, including telephone number, and facsimile number; and
(x) Plant operator, including telephone number and facsimile number.
(2)
(i) Information that must be submitted to BIS by the company selling a declared plant site:
(A) Name of seller (i.e., name of the company selling a declared plant site);
(B) Name of the declared plant site and U.S. Code Number for that plant site;
(C) Name of purchaser (i.e., name of the new company/owner purchasing a declared plant site) and identity of contact person for the purchaser, if known;
(D) Date of ownership transfer or change;
(E) Additional (e.g., unique) details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and
(F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the
(
(
(
(
(ii) Information that must be submitted to BIS by the company purchasing a declared plant site:
(A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
(D) Name of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e-mail address(es);
(E) Name of the declared plant site and U.S. Code Number for that plant site;
(F) Location of the declared plant site;
(G) Owner of the declared plant site, including telephone number, and facsimile number;
(H) Operator of the declared plant site, including telephone number, and facsimile number;
(I) Name of plant(s) where Schedule 2 activities exceed the applicable declaration threshold;
(J) Owner and operator of plant(s) where Schedule 2 activities exceed the applicable declaration threshold, including telephone numbers, and facsimile numbers;
(K) Location of the plant where Schedule 2 activities exceed the applicable declaration threshold; and
(L) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.
You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.
You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company.
For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.
(d)
(e)
(f)
(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or
(2) Both of the following:
(i) A new Certification Form; and
(ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report.
If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter.
Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 713. Required declarations, reports, and amendments include:
(a) Annual declaration on past activities (production, processing, or consumption of Schedule 2 chemicals during the previous calendar year);
(b) Annual report on exports and imports of Schedule 2 chemicals by plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year);
(c) Combined declaration and report (production, processing, or consumption of Schedule 2 chemicals, as well as exports or imports of the same or different Schedule 2 chemicals, by a declared plant site during the previous calendar year);
(d) Annual declaration on anticipated activities (production, processing or consumption) involving Schedule 2 chemicals during the next calendar year;
(e) Declaration on Additionally Planned Activities (production, processing or consumption) involving Schedule 2 chemicals; and
(f) Amended declaration and report, including combined declaration and report.
22 U.S.C. 6701
(a)
(i)
(ii)
(2)
(ii) For the purpose of determining if a Schedule 3 chemical is subject to declaration, you must declare an intermediate Schedule 3 chemical, but not a transient intermediate Schedule 3 chemical.
(3)
(ii)
(b)
(2)
(c)
(2)
(d)
(e)
(1) The declared plants on your plant site produced in excess of 200 metric tons aggregate of any Schedule 3 chemical during the previous calendar year; or
(2) You anticipate that the declared plants on your plant site will produce in excess of 200 metric tons aggregate of any Schedule 3 chemical during the next calendar year.
(a) Any person subject to the CWCR that exported from or imported into the United States in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year has a reporting requirement under this section.
(1)
Declared and undeclared plant sites must count, for reporting purposes, all exports from and imports to the entire plant site, not only from or to individual plants on the plant site.
The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 3 chemicals contained in reports. The U.S. Government will add all export and import information contained in reports to establish the U.S. national aggregate declaration on exports and imports.
(2)
The “80% and above” mixtures rule applies only for reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non-State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see 15 CFR 742.2, 742.18 and 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through 130)).
(b)
(A) Completing question 3-3.3 on Form 3-3 on your declaration for that same Schedule 3 chemical; or
(B) Submitting, separately from your declaration, a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach
(ii) If your plant site is declared for production of a Schedule 3 chemical and you exported or imported in excess of 30 metric tons of a different Schedule 3 chemical, you must report the export or import by either:
(A) Submitting, along with your declaration, a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional; or
(B) Submitting, separately from your declaration, a Certification Form, Form 3-1 and a Form 3.3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.
(2) If you are an undeclared plant site, a trading company, or any other person subject to the CWCR, you must submit a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.
(c)
(2)
Under the Convention, the United States is obligated to provide the OPCW a national aggregate annual declaration of the quantities of each Schedule 3 chemical exported and imported, with a quantitative breakdown for each country or destination involved. The U.S. Government will
(a)
(i) You plan that a previously undeclared plant on your plant site under § 714.1(a)(1)(ii) of the CWCR will produce a Schedule 3 chemical above the declaration threshold;
(ii) You plan to produce at a plant declared under § 714.1(a)(1)(ii) of the CWCR an additional Schedule 3 chemical above the declaration threshold;
(iii) You plan to increase the production of a Schedule 3 chemical by declared plants on your plant site from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see § 716.1(b)(3) of the CWCR); or
(iv) You plan to increase the aggregate production of a Schedule 3 chemical at a declared plant site to an amount above the upper limit of the range previously declared under § 714.1(a)(1)(ii) of the CWCR.
(2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (iv) of this section, you also should declare any changes to the anticipated purposes of production or product group codes. You do not have to submit a declaration on additionally planned activities if you are only changing your purposes of production or product group codes.
(b)
In order for BIS to maintain accurate information on previously submitted
(a)
(1) Types of Schedule 3 chemicals produced (e.g., production of additional Schedule 3 chemicals);
(2) Production range (e.g., from 30 to 200 metric tons to above 200 to 1000 metric tons) of Schedule 3 chemicals;
(3) Purpose of Schedule 3 chemical production (e.g., additional end-uses); or
(4) Addition of new plant(s) for production of Schedule 3 chemicals.
(b)
(1) Types of Schedule 3 chemicals exported or imported (additional Schedule 3 chemicals);
(2) Quantities of Schedule 3 chemicals exported or imported;
(3) Destination(s) of Schedule 3 chemicals exported; and
(4) Source(s) of Schedule 3 chemicals imported.
(c)
(i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, and facsimile number, and e-mail address(es);
(iii) Company name (see 714.4(c)(2) for other company changes);
(iv) Company mailing address;
(v) Plant site name;
(vi) Plant site owner, including telephone number and facsimile number;
(vii) Plant site operator, including telephone number and facsimile number;
(viii) Plant name;
(xi) Plant owner, including telephone number and facsimile number; and
(x) Plant operator, including telephone number and facsimile number.
(2)
(i) Information that must be submitted to BIS by a company selling a declared plant site:
(A) Name of seller (i.e., name of the company selling a declared plant site);
(B) Name of declared plant site and U.S. Code Number for that plant site;
(C) Name of purchaser (i.e., name of company purchasing a declared plant site) and identity of the new owner and contact person for the purchaser, if known;
(D) Date of ownership transfer;
(E) Additional (e.g., unique) details on the sale of the plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and
(F) Details regarding whether the new owner will submit the declaration
(
(
(
(
(ii) Information that must be submitted to BIS by the company purchasing a declared plant site:
(A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
(D) Name(s) of inspection point(s)s of contact (I-POC) for the purchaser, including telephone number, facsimile number, and e-mail address(es);
(E) Name of the declared plant site and U.S. Code Number for that plant site;
(F) Location of the declared plant site;
(G) Operator of the declared plant site, including telephone number, and facsimile number;
(H) Name of plant where Schedule 3 production exceeds the declaration threshold;
(I) Owner of plant where Schedule 3 production exceeds the declaration threshold;
(J) Operator of plant where Schedule 3 production exceeds the declaration threshold; and
(K) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.
You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.
You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company.
For ownership changes, the declared plant site or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.
(d)
(e)
(f)
(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or
(2) Both of the following:
(i) A new Certification Form; and
(ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report.
If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action. However, BIS will maintain a copy of the RWA letter.
Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in Supplement No. 2 to this part 714 of the CWCR. Required declarations, reports, and amendments include:
(a) Annual declaration on past activities (production of Schedule 3 chemicals during the previous calendar year);
(b) Annual report on exports and imports of Schedule 3 chemicals from plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year);
(c) Combined declaration and report (production of Schedule 3 chemicals, as well as exports or imports of the same or different Schedule 3 chemicals, by a declared plant site during the previous calendar year);
(d) Annual declaration on anticipated activities (anticipated production of Schedule 3 chemicals during the next calendar year);
(e) Declaration on Additionally Planned Activities (additionally planned production of Schedule 3 chemicals); and
(f) Amended declaration and report, including combined declaration and report.
22 U.S.C. 6701
(a)
(i) In excess of 200 metric tons aggregate of all UDOCs (including all UDOCs containing the elements phosphorus, sulfur or fluorine, referred to as “PSF chemicals”) during the previous calendar year; or
(ii) In excess of 30 metric tons of an individual PSF chemical at one or more plants at your plant site during the previous calendar year.
In calculating the aggregate production quantity of each individual PSF chemical produced by a PSF plant, do not include production of a PSF chemical that was produced in quantities less than 30 metric tons. Include only production quantities from those PSF plants that produced more than 30 metric tons of an individual PSF chemical.
(2)
(A) Use; or
(B) Sale as a specific end product.
(ii)
(B) Chemicals and chemical mixtures produced through a biological or biomediated process;
(C) Products from the refining of crude oil, including sulfur-containing crude oil;
(D) Metal carbides (i.e., chemicals consisting only of metal and carbon); and
(E) UDOCs produced by synthesis that are ingredients or by-products in foods designed for consumption by humans and/or animals.
See Supplement No. 2 to this part 715 for examples of UDOCs subject to the declaration requirements of this part, and for examples of activities that are not considered production by synthesis.
(3)
(i) Hydrocarbon means any organic compound that contains only carbon and hydrogen; and
(ii) Explosive means a chemical (or a mixture of chemicals) that is included in Class 1 of the United Nations Organization hazard classification system.
(b)
(2)
If, after submitting the
(c)
(d)
In order for BIS to maintain accurate information on previously submitted plant site declarations, including current information necessary to facilitate inspection notifications and activities or to communicate declaration requirements, amended declarations will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities submitted for the previous calendar year, unless specified otherwise in a final inspection report.
(a)
(1) Product group codes for UDOCs produced in quantities exceeding the applicable declaration threshold specified in § 715.1(a)(1) of the CWCR;
(2) Approximate number of plants at the declared plant site that produced any amount of UDOCs (including all PSF chemicals);
(3) Aggregate amount of production (by production range) of UDOCs produced by all plants at the declared plant site;
(4) Exact number of plants at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical; and
(5) Production range of each plant at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical.
(b)
(i) Name of declaration point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
(ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, facsimile number(s) and e-mail address(es);
(iii) Company name (see 715.2(b)(2) for other company changes);
(iv) Company mailing address;
(v) Plant site name;
(vi) Plant site owner, including telephone number and facsimile number; and
(vii) Plant site operator, including telephone number and facsimile number.
(2)
(i) Information that must be submitted to BIS by the company selling a declared plant site:
(A) Name of seller (i.e., name of company selling a declared plant site);
(B) Name of declared plant site name and U.S. Code Number for that plant site;
(C) Name of purchaser (i.e., name of new company purchasing a declared plant site) and identity of contact person for the purchaser, if known;
(D) Date of ownership transfer or change;
(E) Additional details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and
(F) Details regarding whether the new owner will submit the declaration for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the plant site.
(
(
(
(ii) Information that must be submitted to BIS by the company purchasing a declared plant site:
(A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);
(B) Mailing address of purchaser;
(C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
(D) Name(s) of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s), and e-mail address(es);
(E) Name of the declared plant site and U.S. Code Number for that plant site;
(F) Location of the declared plant site;
(G) Name of plant site where the production of UDOCs exceeds the applicable declaration threshold;
(H) Owner of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number;
(I) Operator of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number; and
(J) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or report for the periods of the calendar year during which each owned the plant site.
You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.
You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration, use Form B to address details regarding the sale of the declared plant site.
For ownership changes, the declared plant site will maintain its original U.S. Code Number, unless the plant site is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.
(c)
(d)
(e)
(1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration; or
(2) Both of the following:
(i) A new Certification Form; and
(ii) The specific form required for the declaration containing the corrected information required, in accordance with the requirements of this section, to amend your declaration.
If you submit a declaration and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration that is returned without action. However, BIS will maintain a copy of the RWA letter.
Declarations, no changes authorization forms, and amendments required under this part must be postmarked by the appropriate dates identified in Supplement No. 3 to this part 715 of the CWCR. Required documents under this part include:
(a)
(b)
(c) Amended declaration.
Unscheduled discrete organic chemical means any chemical: (1) Belonging to the class of chemical compounds consisting of all compounds of carbon except for its oxides, sulfides and metal carbonates identifiable by chemical name, by structural formula, if known, and by Chemical Abstract Service registry number, if assigned; and (2) that is not contained in the Schedules of Chemicals (see Supplements No. 1 to parts 712 through 714 of the CWCR). Unscheduled discrete organic chemicals subject to declaration under this part are those produced by synthesis that are isolated for use or sale as a specific end-product.
Carbon oxides consist of chemical compounds that contain only the elements carbon and oxygen and have the chemical formula C
(1) Examples of UDOCs not subject to declaration include:
(i) UDOCs produced coincidentally as by-products that are not isolated for use or sale as a specific end product, and are routed to, or escape from, the waste stream of a stack, incinerator, or waste treatment system or any other waste stream;
(ii) UDOCs, contained in mixtures, which are produced coincidentally and not isolated for use or sale as a specific end-product;
(iii) UDOCs produced by recycling (i.e., involving one of the processes listed in paragraph (3) of this supplement) of previously declared UDOCs;
(iv) UDOCs produced by the mixing (i.e., the process of combining or blending into one mass) of previously declared UDOCs; and
(v) UDOCs that are intermediates and that are used in a single or multi-step process to produce another declared UDOC.
(2) Examples of UDOCs that you must declare under part 715 of the CWCR include, but are not limited to, the following, unless
(i) Acetophenone (CAS #98-86-2);
(ii) 6-Chloro-2-methyl aniline (CAS #87-63-8);
(iii) 2-Amino-3-hydroxybenzoic acid (CAS #548-93-6); and
(iv) Acetone (CAS #67-64-1).
(3) Examples of activities that are not considered “production by synthesis” under part 715 of the CWCR, which means the end products resulting from such activities would not be declared under part 715, are as follows:
(i) Fermentation;
(ii) Extraction;
(iii) Purification;
(iv) Distillation; and
(v) Filtration.
22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.
This part provides general information about the conduct of initial and routine inspections of declared facilities subject to inspection under CWC Verification Annex Part VI(E), Part VII(B), Part VIII(B) and Part IX(B). See part 717 of the CWCR for provisions concerning challenge inspections.
(a)
(b)
(ii) If you are a new Schedule 1 production facility pursuant to § 712.4 of the CWCR, your facility is subject to an initial inspection within 200 days of submitting an initial declaration.
All Schedule 1 facilities submitting a declaration are subject to inspection.
(2)
(A) 10 kg of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 2, Part A, paragraph 3 in Supplement No. 1 to part 713 of the CWCR);
(B) 1 metric ton of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or any chemical belonging to the Amiton family (see Schedule 2, Part A, paragraphs 1 and 2 in Supplement No. 1 to part 713 of the CWCR); or
(C) 10 metric tons of any chemical listed in Schedule 2, Part B (see Supplement No. 1 to part 713 of the CWCR).
(ii)
The applicable inspection threshold for Schedule 2 plant sites is ten times higher than the applicable declaration threshold. Only declared plant sites, comprising at least one declared plant that exceeds the applicable inspection threshold, are subject to inspection.
(3)
The methodology for determining a declarable and inspectable plant site is different. A Schedule 3 plant site that submits a declaration is subject to inspection only if the aggregate production of a Schedule 3 chemical at all declared plants on the plant site exceeds 200 metric tons.
(4)
You must include amounts of unscheduled discrete organic chemicals containing phosphorus, sulfur or fluorine in the calculation of your plant site's aggregate production of unscheduled discrete organic chemicals.
All UDOC plant sites that submit a declaration based on § 715.1(a)(1)(i) of the CWCR are subject to a routine inspection.
(c)
(1) Lead on-site inspections;
(2) Provide Host Team notification to the facility of an impending inspection;
(3) Take appropriate action to obtain an administrative warrant in the event the facility does not consent to the inspection;
(4) Dispatch an advance team to the vicinity of the site to provide administrative and logistical support for the impending inspection and, upon request, to assist the facility with inspection preparation;
(5) Escort the Inspection Team on-site throughout the inspection process;
(6) Assist the Inspection Team with verification activities;
(7) Negotiate the development of a site-specific facility agreement, if appropriate (see § 716.6); and
(8) Ensure that an inspection adheres to the Convention, the Act and any warrant issued thereunder, and a site-specific facility agreement, if concluded.
(a)
(i) The facility is not used to produce any Schedule 1 chemical, except for the declared Schedule 1 chemicals;
(ii) The quantities of Schedule 1 chemicals produced, processed or consumed are correctly declared and consistent with needs for the declared purpose; and
(iii) The Schedule 1 chemical is not diverted or used for purposes other than those declared.
(2)
(B) For new Schedule 1 production facilities declared pursuant to § 712.4 of the CWCR, the U.S. National Authority, in coordination with BIS, will conclude a facility agreement with the OPCW before the facility begins producing above 100 grams aggregate of Schedule 1 chemicals.
(ii)
(b)
(A) The absence of any Schedule 1 chemical, especially its production, except in accordance with the provisions of the Convention;
(B) Consistency with declarations of production, processing or consumption of Schedule 2 chemicals; and
(C) Non-diversion of Schedule 2 chemicals for activities prohibited under the Convention.
(ii) During initial inspections, Inspection Teams shall collect information to determine the frequency and intensity of subsequent inspections by assessing the risk to the object and purpose of the Convention posed by the relevant chemicals, the characteristics of the plant site and the nature of the activities carried out there. The Inspection Team will take the following criteria into account, inter alia:
(A) The toxicity of the scheduled chemicals and of the end-products produced with them, if any;
(B) The quantity of the scheduled chemicals typically stored at the inspected site;
(C) The quantity of feedstock chemicals for the scheduled chemicals typically stored at the inspected site;
(D) The production capacity of the Schedule 2 plants; and
(E) The capability and convertibility for initiating production, storage and filling of toxic chemicals at the inspected site.
(2)
(ii)
(c)
(2)
(d)
(2)
(a) The owner, operator, occupant or agent in charge of a facility may consent to an initial or routine inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility.
(b) In instances where consent is not provided by the owner, operator, occupant or agent in charge for an initial or routine inspection, BIS will seek administrative warrants as provided by the Act.
(a)
(b)
(i) Will receive a pre-inspection briefing from facility representatives;
(ii) Will visually inspect the facilities or plants producing scheduled chemicals or UDOCs, which may include storage areas, feed lines, reaction vessels and ancillary equipment, control equipment, associated laboratories, first aid or medical sections, and waste and effluent handling areas, as necessary to accomplish their inspection;
(iii) May visually inspect other parts or areas of the plant site to clarify an ambiguity that has arisen during the inspection;
(iv) May take photographs or conduct formal interviews of facility personnel;
(v) May examine relevant records; and
(vi) May take samples as provided by the Convention, the Act and consistent with the requirements set forth by the Director of the United States National
(2)
(3)
(c)
(1) The pre-inspection briefing will address:
(i) Facility health and safety issues and requirements, and associated alarm systems;
(ii) Declared facility activities, business and manufacturing operations;
(iii) Physical layout;
(iv) Delimitation of declared facility;
(v) Scheduled chemicals on the facility (declared and undeclared);
(vi) Block flow diagram or simplified process flow diagram;
(vii) Plants and units specific to declared operations;
(viii) Administrative and logistic information; and
(ix) Data declaration updates/revisions.
(2) The pre-inspection briefing may also address, inter alia:
(i) Introduction of key facility personnel;
(ii) Management, organization and history;
(iii) Confidential business information concerns;
(iv) Types and location of records/documents;
(v) Draft facility agreement, if applicable; and
(vi) Proposed inspection plan.
(d)
(e)
(f)
(g)
(h)
(i)
(a)
(A) The type of inspection;
(B) The basis for the selection of the facility or location for the type of inspection sought;
(C) The time and date that the inspection will begin and the period covered by the inspection; and
(D) The names and titles of the Inspection Team members.
(ii)
(iii) The following table sets forth the notification procedures for inspection:
(2)
(ii)
(iii)
(b)
(2)
(3)
(c)
(1)
(2)
(3)
(4)
(a)
(1)
(2)
(3)
(b)
(c) [Reserved]
(d)
The owner, operator, occupant or agent in charge of a facility must provide a sample as provided for in the Convention and the Act and consistent with requirements set forth by the Director of the United States National Authority in 22 CFR part 103. Analysis will be restricted to verifying the absence of undeclared scheduled chemicals, unless otherwise agreed after consultation with the facility representative.
Declared Schedule 1 facilities are subject to verification by monitoring with on-site instruments as provided by the Convention. For facilities subject to the CWCR, however, such monitoring is not anticipated. The U.S. Government will ensure that any monitoring that may be requested by the OPCW is carried out pursuant to the Convention and U.S. law.
Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in § 716.6(d) of the CWCR, with the following notation: “Attn: Report of inspection-related costs.”
BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, within the time-frame specified by BIS (
22 U.S.C. 6701
(a) Article IX of the Convention sets forth procedures for clarification, between States Parties, of issues about compliance with the Convention. States Parties may attempt to resolve such issues through consultation between themselves or through the Organization for the Prohibition of Chemical Weapons (OPCW). A State Party may also request the OPCW to conduct an on-site challenge inspection of any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party. Such an on-site challenge inspection request shall be for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the Convention.
(b) In the event that BIS receives a request for clarification, pursuant to Article IX of the Convention, concerning possible non-compliance with the CWC, any person or facility subject to the CWCR (parts 710 through 729 of this subchapter) that receives an official written request from BIS for clarification must, within five working days from receipt of such request, provide BIS with any relevant information required to respond to the OPCW or the State Party(ies) who requested clarification under Article IX. BIS will contact the person or facility subject to the Article IX clarification, as early as practicable, prior to issuing an official written request for clarification to the person or facility.
Persons or facilities, other than U.S. Government facilities as defined in § 710.2(a) of the CWCR, may be subject to a challenge inspection by the OPCW concerning possible non-compliance with the requirements of the Convention, irrespective of whether or not they are required to submit declarations or reports under the CWCR. BIS will host and escort the international Inspection Team for challenge inspections in the United States of such persons or facilities.
(a)
(2) In instances where the owner, operator, occupant or agent in charge of a facility does not consent to a challenge inspection, BIS will assist the Department of Justice in seeking a criminal warrant as provided by the Act. The existence of a facility agreement does not in any way limit the right of the operator of the facility to withhold consent to a challenge inspection request.
(b)
(1)
(2)(i)
(A) The type of inspection;
(B) The basis for the selection of the facility or locations for the type of inspection sought;
(C) The time and date that the inspection will begin and the period covered by the inspection;
(D) The names and titles of the Inspection Team members; and
(E) All appropriate evidence or reasons provided by the requesting State Party for seeking the inspection.
(ii) In addition to appropriate information provided by the OPCW in its notification to the USNA, the notice of inspection that BIS delivers to the facility will request the facility to indicate whether it will consent to an inspection and will state whether an advance team is available to assist the site in preparation for the inspection. If an advance team is available, facilities that request advance team assistance are not required to reimburse the U.S. Government for costs associated with these activities. If a facility does not agree to provide consent to an inspection within four hours of receipt of the inspection notification, BIS will assist the Department of Justice in seeking a criminal warrant.
(c)
(d)
(2)
(3)
(4)
(5)
If requested by the Inspection Team, the owner, operator, occupant or agent in charge of a facility must provide a sample, as provided for in the Convention and the Act and consistent with
Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in § 716.6(d) of the CWCR, with the following notation: “AATTN: Report of Inspection-related Costs.”
BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, and BIS will consider them, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter detailing the issues that require follow-up action and the date on which the report on inspection-related costs (see § 717.4 of the CWCR) is due to BIS.
22 U.S.C. 6701
The Chemical Weapons Convention Implementation Act of 1998 (“the Act”) defines confidential business information as information included in categories specifically identified in sections 103(g)(1) and 304(e)(2) of the Act and other trade secrets as follows:
(a) Financial data;
(b) Sales and marketing data (other than shipment data);
(c) Pricing data;
(d) Personnel data;
(e) Research data;
(f) Patent data;
(g) Data maintained for compliance with environmental or occupational health and safety regulations;
(h) Data on personnel and vehicles entering and personnel and personal passenger vehicles exiting the site;
(i) Any chemical structure;
(j) Any plant design, process, technology or operating method;
(k) Any operating requirement, input, or result that identifies any type or quantity of chemicals used, processed or produced;
(l) Any commercial sale, shipment or use of a chemical; or
(m) Information that qualifies as a trade secret under 5 U.S.C. 552(b)(4) (Freedom of Information Act), provided such trade secret is obtained from a U.S. person or through the U.S. Government.
(a)
(b)
(2) You must specifically identify in a cover letter submitted with your declaration or report any additional information on a declaration or report form (i.e., information not provided in one of the data fields listed in the table included in Supplement No. 1 to this part), including information provided in attachments to Form A or Form B, that you believe is confidential business information, as defined by the Act, and must describe how disclosure would likely result in competitive harm.
BIS has also determined that descriptions of Schedule 1 facilities submitted with Initial Declarations as attachments to Form A contain confidential business information, as defined by the Act.
(c)
(d)
(2) Before or after inspections, confidential business information related to an inspection that is contained in any documents or that is reported to, or otherwise acquired by, the U.S. Government, such as facility information for pre-inspection briefings, facility agreements, and inspection reports, must be identified by the facility so that it may be appropriately marked and handled. If the U.S. Government creates derivative documents from such documents or reported information, they will also be marked and handled as confidential business information.
(a)
(b)
(1)
(2)
(c)
(ii)
(B) The OPCW Inspection Team members are prohibited, under the terms of their employment contracts and pursuant to the Confidentiality Annex of the Convention, from disclosing to any unauthorized persons, during their employment and for five years after termination of their employment, any confidential information coming to their knowledge or into their possession in the performance of their official duties.
(iii)
(2)
(3)
(4)
(i)
(ii)
22 U.S.C. 6701
(a)
(1)
(2)
(3)
This part 719 does not apply to violations of the export requirements imposed pursuant to the Chemical Weapons Convention and set forth in the Export Administration Regulations (EAR) (15 CFR parts 730 through 799) and in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130).
(b)
(a)
(2)
(i) To establish or maintain any record required by the Act or the CWCR; or
(ii) To submit any report, notice, or other information to the United States Government in accordance with the Act or the CWCR; or
(iii) To permit access to or copying of any record required to be established or maintained by the Act or the CWCR, including any record that is exempt from disclosure under the Act or the CWCR.
(b)
(2)
(c)
(d)
(a)
(i) The import is from a State Party;
(ii) The import is for research, medical, pharmaceutical, or protective purposes;
(iii) The import is in types and quantities strictly limited to those that can be justified for such purposes; and
(iv) The importing person has notified BIS not less than 45 calendar days before the import pursuant to § 712.6 of the CWCR.
(2)
(b)
(c)
(a)
(b)
(c)
(i) Any property, real or personal, owned, possessed, or used by a person involved in the offense;
(ii) Any property constituting, or derived from, and proceeds the person obtained, directly or indirectly, as the result of such violation; and
(iii) Any of the property used in any manner or part, to commit, or to facilitate the commission of, such violation.
(2) In lieu of a fine otherwise authorized by section 229A(a) of Title 18 of the United States Code, a defendant who derived profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds.
(d)
(i) The conduct prohibited under section 229 or 229C of Title 18 of the United States Code; or
(ii) The preparation or solicitation to engage in conduct prohibited under section 229 or 229D of Title 18 of the United States Code.
(2) In addition, the United States may, in a civil action, restrain any violation of section 306 or 405 of the Act, or compel the taking of any action required by or under the Act or the Convention.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
A respondent individual may appear and participate in person, a corporation by a duly authorized officer or employee, and a partnership by a partner. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides, if not the United States. The U.S. Government will be represented by the Office of Chief Counsel. A respondent personally, or through counsel or other representative who has the power of attorney to represent the respondent, shall file a notice of appearance with the ALJ, or, in cases where settlement negotiations occur before any filing with
(a)
(b)
(c)
(d)
(e)
The ALJ may render a summary decision disposing of all or part of a proceeding on the motion of any party to the proceeding, provided that there is no genuine issue as to any material fact and the party is entitled to summary decision as a matter of law.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(a)
(b)
(a) On the ALJ's own motion, or on request of a party, the ALJ may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider:
(1) Simplification of issues;
(2) The necessity or desirability of amendments to pleadings;
(3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or
(4) Such other matters as may expedite the disposition of the proceedings.
(b) The ALJ may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the ALJ.
(c) If a prehearing conference is impracticable, the ALJ may direct the parties to correspond with the ALJ to achieve the purposes of such a conference.
(d) The ALJ will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties.
(a)
(b)
(c)
(2) Upon such terms as the ALJ deems just, the ALJ may direct that the testimony of any person be taken by deposition and may admit an affidavit or declaration as evidence, provided that any affidavits or declarations have been filed and served on the parties sufficiently in advance of the hearing to permit a party to file and serve an objection thereto on the grounds that it is necessary that the affiant or declarant testify at the hearing and be subject to cross-examination.
(d)
Unless otherwise ordered and subject to § 719.16 of the CWCR, a written stipulation agreed to by all parties and filed with the ALJ will modify the procedures established by this part.
The parties may extend any applicable time limitation by stipulation filed with the ALJ before the time limitation expires, or the ALJ may, on the ALJ's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time , except that the requirement that a hearing be demanded within 15 days, and the requirement that a final agency decision be made within 30 days, may not be modified.
All parties shall have the opportunity to file post-hearing submissions that may include findings of fact and conclusions of law, supporting evidence and legal arguments, exceptions to the ALJ's rulings or to the admissibility of evidence, and proposed orders and settlements.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(2)
(a)
(b)
(c)
If a person learns that a violation of the Convention, the Act, or the CWCR has occurred or may occur, that person may notify: Office of Export Enforcement, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-4520, Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964.
22 U.S.C. 6701
Any person in the United States or any U.S. national may be denied export privileges after notice and opportunity for hearing if that person has been convicted under Title 18, Section 229 of the United States Code of knowingly:
(a) Developing, producing, otherwise acquiring, transferring directly or indirectly, receiving, stockpiling, retaining, owning, possessing, or using, or threatening to use, a chemical weapon; or
(b) Assisting or inducing, in any way, any person to violate paragraph (a) of this section, or attempting or conspiring to violate paragraph (a) of this section.
(a)
(b)
(c)
(a)
(b)
(c)
(i) That a necessary finding of fact is omitted, erroneous or unsupported by substantial evidence of record;
(ii) That a necessary legal conclusion or finding is contrary to law;
(iii) That prejudicial procedural error occurred; or
(iv) That the decision or the extent of sanctions is arbitrary, capricious or an abuse of discretion.
(2) The appeal must specify the grounds on which the appeal is based and the provisions of the order from which the appeal was taken.
(d)
(e)
Any person denied export privileges pursuant to this part shall be considered a “person denied export privileges” for purposes of the Export Administration Regulations (EAR) (15 CFR parts 730 through 799). Orders denying export privileges pursuant to Parts 764 and 766 of the EAR are published in the
22 U.S.C. 6701
Upon request by BIS or any other agency of competent jurisdiction, you must permit access to and copying of any record relating to compliance with the requirements of the CWCR. This requires that you make available the equipment and, if necessary, knowledgeable personnel for locating, reading, and reproducing any record.
(a)
(b)
(c)
(d)
(2) If you must maintain records under this part, you may use any photostatic, miniature photographic, micrographic, automated archival storage, or other process that completely, accurately, legibly and durably reproduces the original records (whether on paper, microfilm, or through electronic digital storage techniques). The process must meet all of the following requirements, which are applicable to all systems:
(i) The system must be capable of reproducing all records on paper.
(ii) The system must record and be able to reproduce all marks, information, and other characteristics of the original record, including both obverse and reverse sides (unless blank) of paper documents in legible form.
(iii) When displayed on a viewer, monitor, or reproduced on paper, the records must exhibit a high degree of legibility and readability. For purposes of this section, legible and legibility mean the quality of a letter or numeral that enable the observer to identify it positively and quickly to the exclusion of all other letters or numerals. Readable and readability mean the quality of a group of letters or numerals being recognized as complete words or numbers.
(iv) The system must preserve the initial image (including both obverse and reverse sides, unless blank, of paper documents) and record all changes, who made them and when they were made. This information must be stored in such a manner that none of it may be altered once it is initially recorded.
(v) You must establish written procedures to identify the individuals who are responsible for the operation, use and maintenance of the system.
(vi) You must keep a record of where, when, by whom, and on what equipment the records and other information were entered into the system.
(3)
(4)
If BIS or other authorized U.S. government agency makes a formal or informal request for a certain record or records, such record or records may not be destroyed or disposed of without the written authorization of the requesting entity.
This part is reserved for interpretations of parts 710 through 721 and also for applicability of decisions by the Organization for the Prohibition of Chemical Weapons (OPCW).
50 U.S.C. app. 2401
In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C. The EAR are issued by the United States Department of Commerce, Bureau of Industry and Security (BIS) under laws relating to the control of certain exports, reexports, and activities. In addition, the EAR implement antiboycott law provisions requiring regulations to prohibit specified conduct by United States persons that has the effect of furthering or supporting boycotts fostered or imposed by a country against a country friendly to United States. Supplement No. 1 to part 730 lists the control numbers assigned to information collection requirements under the EAR by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995.
The EAR have been designed primarily to implement the Export Administration Act of 1979, as amended, 50 U.S.C. app. 2401-2420 (EAA). There are numerous other legal authorities underlying the EAR. These are listed in the
The convenient term
In addition to the departments and agencies mentioned in § 730.3 of this part, other departments and agencies have jurisdiction over certain narrower classes of exports and reexports. These include the Department of Treasury's Office of Foreign Assets Control (OFAC), which administers controls against certain countries that are the object of sanctions affecting not only exports and reexports, but also imports and financial dealings. For your convenience, Supplement No. 3 to part 730 identifies other departments and agencies with regulatory jurisdiction over certain types of exports and reexports. This is not a comprehensive list, and the brief descriptions are only generally indicative of the types of controls administered and/or enforced by each agency.
The core of the export control provisions of the EAR concerns exports from the United States. You will find, however, that some provisions give broad meaning to the term “export”, apply to transactions outside of the United States, or apply to activities other than exports.
(a)
(b)
(c)
(d)
The export control provisions of the EAR are intended to serve the national security, foreign policy, nonproliferation, and short supply interests of the United States and, in some cases, to carry out its international obligations. Some controls are designed to restrict access to dual use items by countries or persons that might apply such items to uses inimical to U.S. interests. These include controls designed to stem the proliferation of weapons of mass destruction and controls designed to limit the military and terrorism support capability of certain countries. The effectiveness of many of the controls under the EAR is enhanced by their being maintained as part of multilateral control arrangements. Multilateral export control cooperation is sought through arrangements such as
A relatively small percentage of exports and reexports subject to the EAR require an application to BIS for a license. Many items are not on the Commerce Control List (CCL) (Supplement No. 1 to § 774.1 of the EAR), or, if on the CCL, require a license to only a limited number of countries. Other transactions may be covered by one or more of the License Exceptions in the EAR. In such cases no application need be made to BIS.
(a)
(1)
(2)
(3)
(4)
(i) The EAR may require a license to a country if your item is listed on the CCL and the Country Chart in part 738 of the EAR tells that a license is required to that country. Virtually all Export Control Classification Numbers (ECCN) on the CCL are covered by the Country Chart in part 738 of the EAR. That part identifies the limited number of entries that are not included on the Chart. These ECCNs will state the specific countries that require a license or refer you to a self-contained section, i.e., Short Supply in part 754 of the EAR, or Embargoes in part 746 of the EAR. If a license is required, you should consult part 740 of the EAR which describes the License Exception that may be available for items on the CCL. Part 742 of the EAR describes the licensing policies that BIS will apply in reviewing an application you file. Note that part 754 of the EAR on short supply controls and part 746 on embargoes are self-contained parts that include the available exceptions and licensing policy.
(ii) A license requirement may be based on the end-use or end-user in a transaction, primarily for proliferation reasons. Part 744 of the EAR describes such requirements and relevant licensing policies and includes both restrictions on items and restrictions on the activities of U.S. persons.
(iii) A license is required for virtually all exports to embargoed destinations, such as Cuba. Part 746 of the EAR describes all the licensing requirements, license review policies and License Exceptions that apply to such destinations. If your transaction involves one of these countries, you should first look at this part. This part also describes controls that may be maintained under the EAR to implement UN sanctions.
(iv) In addition, under §§ 736.2(b)(9) and (10) of the EAR, you may not engage in a transaction knowing a violation is about to occur or violate any orders, terms, and conditions under the EAR. Part 764 of the EAR describes prohibited transactions with a person denied export privileges or activity that violates the terms or conditions of a denial order.
(5)
(6)
(7)
(8)
(9)
(10)
(b)
(c)
The head of the Bureau of Industry and Security is the Under Secretary for Industry and Security. The Under Secretary is assisted by a Deputy Under Secretary for Industry and Security, the Assistant Secretary for Export Administration, the Assistant Secretary for Export Enforcement, the Director of Administration, the Director of the
(a) Export Administration is headed by the Assistant Secretary for Export Administration, who is assisted by a Deputy Assistant Secretary. Its substantive work is carried out by five sub-units: the Office of Nonproliferation and Treaty Compliance, the Office of National Security and Technology Transfer Controls, the Office of Exporter Services, the Operating Committee, and the Office of Strategic Industries and Economic Security. The functions of the Operating Committee are described in § 750.4(f)(1) of the EAR. The roles of the other units are described on BIS's Web site at
(b) Export Enforcement is headed by the Assistant Secretary for Export Enforcement who is assisted by a Deputy Assistant Secretary. Its substantive work is carried out by three sub-units: the Office of Export Enforcement, the Office of Enforcement Analysis and the Office of Antiboycott Compliance. The roles of these units are described on BIS's Web site at
(c) BIS is also assisted in its work by six technical advisory committees. The procedures and criteria for establishing and operating the technical advisory committees is at supplement No. 2 to this part. Information about the specific roles of each committee, meeting schedules, and membership selection is available on BIS's Web site at
The general information in this part is just that—general. To achieve brevity, so as to give you a quick overview, the information in this part is selective, incomplete, and not expressed with regulatory precision. The controlling language is the language of succeeding parts of the EAR and of any other laws or regulations referred to or applicable. The content of this part is not to be construed as modifying or interpreting any other language or as in any way, limiting the authority of BIS, any of its components or any other government department or agency. You should not take any action based solely on what you read in this part.
This supplement lists the control numbers assigned to the information collection requirements for the Bureau of Industry and Security by the Office of Management and Budget (OMB), pursuant to the Paperwork Reduction Act of 1995. This supplement complies with the requirements of section 3506(c)(1)(B)(i) of the Paperwork Reduction Act requiring agencies to display current control numbers assigned by the Director of OMB for each agency information collection requirement.
(a)
(b)
(1)
The request shall include:
(i) A description of the articles, materials, or supplies including technology and software, in terms of a clear, cohesive grouping (citing the applicable Export Control Classification Numbers where practical);
(ii) A statement of the reasons for requesting the appointment of a TAC; and
(iii) Any information in support of any contention that may be made that the request meets the criteria described in paragraph (b)(2) of this supplement.
(2)
(i) That a substantial segment of the industry producing the specified articles, materials, or supplies including technology desires such a committee; and
(ii) That the evaluation of such articles, materials, or supplies including technology and software for export control purposes is difficult because of questions involving technical matters, worldwide availability and actual utilization of production and software technology, or licensing procedures.
(3)
(i) The number of persons or firms requesting the establishment of a TAC for a particular grouping of commodities, software and technology in relation to the total number of U.S. producers of such items; and
(ii) The volume of annual production by such persons or firms of each item in the grouping in relation to the total U.S. production. Generally, a substantial segment of an industry (for purposes of this supplement) shall consist of:
(A) Not less than 30 percent of the total number of U.S. producers of the items concerned; or
(B) Three or more U.S. producers who produce a combined total of not less than 30 percent of the total U.S. annual production, by dollar value of the items concerned; or
(C) Not less than 20 percent of the total number of U.S. producers of the items concerned, provided that the total of their annual production thereof is not less than 20 percent of the total U.S. annual production, by dollar value.
(iii) If it is determined that a substantial segment of the industry concerned has requested the establishment of a TAC concerning a specific grouping of items that the Department of Commerce determines difficult to evaluate for export control purposes, BIS will establish and use the TAC requested.
(4)
(i) The total number of firms in the particular industry;
(ii) The total number of firms in the industry that have authorized the trade association or other representative to act in their behalf in this matter;
(iii) The approximate amount of total U.S. annual production by dollar value of the items concerned produced by those firms that have authorized the trade association or other representative to act in their behalf; and
(iv) A description of the method by which authorization to act on behalf of these producers was obtained.
(5)
(6)
(7)
(8)
(9)
(c)
(i) The committee's official designation;
(ii) The committee's objectives and the scope of its activities;
(iii) The period of time necessary for the committee to carry out its purposes;
(iv) The agency or official to whom the committee reports;
(v) The agency responsible for providing the necessary support for the committee;
(vi) A description of the duties for which the committee is responsible, and, if such duties are not solely advisory, a specification of the authority for such functions;
(vii) The estimated annual operating costs in dollars and years for such committee;
(viii) The estimated number and frequency of committee meetings;
(ix) The committee's termination date, if less than two years from the date of the committee's establishment; and
(x) The date the charter is filed.
(d)
(2) No TAC may meet except at the call of its Chair.
(3) Each meeting of a TAC shall be conducted in accordance with an agenda approved by a designated Federal government employee.
(4) No TAC shall conduct a meeting in the absence of a designated Federal government employee who shall be authorized to adjourn any advisory committee meeting, whenever the Federal government employee determines adjournment to be in the public interest.
(e)
(f)
(2) A request for an opportunity to deliver an oral statement relevant to matters on the agenda of a meeting of a TAC will be granted to the extent that the time available for the meeting permits. A committee may establish procedures requiring such persons to obtain advance approval for such participation.
(3) Attendance at meetings of TACs will be open to the public unless it is determined pursuant to section 10(d) of the Federal Advisory Committee Act to be necessary to close all, or some portion, of the meeting to the public. A determination that a meeting or portion thereof be closed to the public may be made if all or a specific portion of a meeting of a TAC is concerned with matters described in section 552(b) of Title 5, U.S.C.
(4) Participation by members of the public in open TAC meetings or questioning of committee members or other participants shall not be permitted except in accordance with procedures established by the committee.
(5) Every effort will be made to accommodate all members of the public who wish to attend.
(g)
(2) The accuracy of all the minutes will be certified to by the TAC Chair.
(h)
(2) Each TAC will prepare once each year a report describing its membership, functions, activities, and such related matters as would be informative to the public consistent with the policy of section 552(b) of Title 5, U.S.C.
(3)(i) Requests for records should be addressed to: Bureau of Industry and Security, Freedom of Information, Records Inspection Facility, U.S. Department of Commerce, Room 4513, Washington, DC 20230, Telephone (202) 482-2593.
(ii) Rules concerning the use of the Records Inspection Facility are contained in 15 CFR part 4, Subtitle A, or may be obtained from this facility.
(i)
(j)
(k)
(l)
(2) Whenever the Department of Commerce desires the advice or assistance of a particular segment of an industry with respect to any export control problem for which the service of a TAC, as described in paragraph (b) of this supplement is either unavailable or impracticable, an advisory committee may be established pursuant to the provisions of section 9 of the Federal Advisory Committee Act. Such committees will be subject to the requirements of the Federal Advisory Committee Act, OMB Circular A-63 (Revision of March 1974), “Advisory Committee Management,” Department of Commerce Administrative Order 205-12, “Public Information,” and any other applicable Department of Commerce regulations or procedures affecting the establishment or operation of advisory committees.
(3) Nothing in the provisions of this supplement shall be construed to restrict in any manner the right of any person or firm to discuss any export control matter with the Department of Commerce or to offer advice or information on export control matters. Similarly, nothing in these provisions shall be construed to restrict the Department of Commerce in consulting any person or firm relative to any export control matter.
The departments and agencies identified with an asterisk control exports for foreign policy or national security reasons and, in certain cases, such controls may overlap with the controls described in the EAR (see part 734 of the EAR).
22 CFR parts 120 through 130.
21 CFR parts 1311 through 1313.
21 CFR 1311 through 1313.
21 U.S.C. 301
21 CFR 312.1106.
Department of the Interior, Chief Office of Management Authority, Tel. (703) 358-2093, Fax: (703) 358-2280.
50 CFR 17.21, 17.22, 17.31, 17.32.
31 CFR parts 500 through 590.
21 U.S.C. 301
10 CFR 205.300 through 205.379 and part 590.
10 CFR part 110.
10 CFR part 810.
46 CFR part 510.
37 CFR part 5.
46 CFR part 221.
50 U.S.C. app. 2401
(a)(1)
(i) The scope of the EAR (part 734 of the EAR);
(ii) Each of the general prohibitions (part 736 of the EAR);
(iii) The License Exceptions (part 740 of the EAR); and
(iv) Other requirements such as clearing your export with the U.S. Customs Service, keeping records, and completing and documenting license applications.
(2) These steps describe the organization of the EAR, the relationship among the provisions of the EAR, and the appropriate order for you to consider the various provisions of the EAR.
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(d)
(i) General Prohibition One (Exports and Reexports): Export and reexport of controlled items to listed countries.
(ii) General Prohibition Two (Parts and Components Reexports): Reexport and export from abroad of foreign-made items incorporating more than a
(iii) General Prohibition Three (Foreign-produced Direct Product Reexports): Reexport and export from abroad of the foreign-produced direct product of U.S. technology and software.
(iv) General Prohibition Four (Denial Orders): Engaging in actions prohibited by a denial order.
(v) General Prohibition Five (End-Use End-User): Export or reexport to prohibited end-user or end-users.
(vi) General Prohibition Six (Embargo): Export or reexport to embargoed destinations.
(vii) General Prohibition Seven (U.S. Person Proliferation Activity): Support of proliferation activities.
(viii) General Prohibition Eight (In-Transit): In-transit shipments and items to be unladen from vessels and aircraft.
(ix) General Prohibition Nine (Orders, Terms and Conditions): Violation of any orders, terms, or conditions.
(x) General Prohibition Ten (Knowledge Violation to Occur): Proceeding with transactions with knowledge that a violation has occurred or is about to occur.
(2)
(3)
(4)
(e)
(f)
Steps 1 though 6 are designed to aid you in determining the scope of the EAR. A flow chart describing these steps is contained in Supplement No. 2 to part 732.
(a)
(1) If your item is subject to the exclusive jurisdiction of another Federal agency, comply with the regulations of that agency. You need not comply with the EAR and may skip the remaining steps.
(2) If your item is not subject to the exclusive jurisdiction of another federal agency, then proceed to Step 2 in paragraph (b) of this section.
(b)
(1) If your technology or software is publicly available, and therefore outside the scope of the EAR, you may proceed with the export or reexport if you are not a U.S. person subject to General Prohibition Seven. If you are a
(2) If your technology or software is not publicly available and you are exporting from the United States, skip to Step 7 in § 732.3(b) of this part concerning the general prohibitions.
(3) If you are exporting items from a foreign country, you should then proceed to Step 3 in paragraph (c) of this section and the other steps concerning the scope of the EAR.
(c)
(d)
(1) For an item made in a foreign country, you should determine whether controlled U.S.-origin parts, components, or materials are incorporated as provided in § 734.4 of the EAR. Also, determine the value of the U.S.-origin controlled content as provided in Supplement No. 2 to part 734 of the EAR.
(2) To determine the value of the U.S.-origin controlled content, you should classify the U.S.-origin content on the CCL, determine those items that would require a license from BIS for reexport to the ultimate destination of the foreign-made product if such parts, components, or materials were reexported to that destination in the form received, and divide the total value of the controlled U.S. parts, components, and materials incorporated into the foreign-made item by the sale price of the foreign-made item.
(3) If no U.S. parts, components, or materials are incorporated or if the incorporated U.S. parts, components, and materials are below the
(4) If controlled parts, components, or materials are incorporated and are above the
(e)
(f)
(1) If your foreign-produced item is described in an entry on the CCL and the Country Chart requires a license to your export or reexport destination for national security reasons, you should determine whether your item is subject to General Prohibition Three (Foreign-Produced Direct Product Reexports) (§ 736.2(b)(3) of the EAR). Your item is subject to the EAR if it is captured by General Prohibition Three (Foreign-Produced Direct Product Reexports), and that prohibition applies if your transaction meets each of the following conditions:
(i)
(ii)
(iii)
(2)
(3)
(i) U.S.-origin commodities, software and technology unless controlled for export exclusively by another Federal agency or unless publicly available;
(ii) Foreign-origin commodities, software, and technology that are within the scope of General Prohibition Two (Parts and Components Reexports), or General Prohibition Three (Foreign-Produced Direct Product Reexports). (However, such foreign-made items are also outside the scope of the EAR if they are controlled for export exclusively by another Federal agency or publicly available.)
(a)
(b)
(2) You have a right to request the applicable classification of your item from BIS, and BIS has a duty to provide that classification to you. For further information on how to obtain classification assistance from BIS, see part 748 of the EAR.
(3) For items subject to the EAR but not listed on the CCL, the proper classification is EAR99. This number is a “basket” for items not specified under
(c)
(d)
(2)
(i) An “X” in the cell or cells for the relevant country and reason(s) for control column indicates that a license is required for General Prohibitions One (Exports and Reexports in the Form Received), Two (Parts and Components Reexports), and Three (Foreign-Produced Direct Product Reexports). (See § 736.2 (b)(1), (b)(2), and (b)(3) of the EAR).
(ii) If one or more cells have an “X” in the relevant column, a license is required unless you qualify for a License Exception described in part 740 of the EAR. If a cell does not contain an “X” for your destination in one or more relevant columns, a license is not required under the CCL and the Country Chart.
(iii) Additional controls may apply to your export. You must go on to steps 12 through 18 described in paragraphs (g) to (m) of this section to determine whether additional limits described in General Prohibition Two (Parts and Components Reexports) and General Prohibition Three (Foreign-Produced Direct Product Reexports ) apply to your proposed transaction. If you are exporting an item from the United States, you should skip Step 10 and Step 11. Proceed directly to Step 12 in paragraph (g) of this section.
(3)
(4)
(5)
(e)
(i) A 10%
(ii) A 25%
(2)
(f)
(1) If your foreign-produced item is described in an entry on the CCL and the Country Chart requires a license to your export or reexport destination for national security reasons, you must determine whether your item is subject to General Prohibition Three (Foreign-Produced Direct Product Reexports) (§ 736.2(b)(3) of the EAR). Your item is subject to this general prohibition if your transaction meets each of the following conditions:
(i)
(ii)
(iii)
(2)
(g)
(2) There are no License Exceptions to General Prohibition Four (Denial Orders). The prohibition concerning persons denied export privileges may be overcome only by a specific authorization from BIS, something that is rarely granted.
(h)
(2) Under License Exception TSU (§ 740.13 of the EAR), operation technology and software, sales technology, and software updates overcome General Prohibition Five (End-Use and End-User) (§ 736.2(b)(5) of the EAR) if all terms and conditions of these provisions are met by the exporter or reexporter.
(i)
(1) You are exporting or reexporting only publicly available technology or software or other items outside the scope of the EAR, or
(2) You qualify for a License Exception referenced in part 746 of the EAR concerning embargoed destinations. You may not use a License Exception described in part 740 of the EAR to overcome General Prohibition Six (Embargo) (§ 736.2(b)(6) of the EAR) unless it is specifically authorized in part 746 of the EAR. Note that part 754 of the EAR concerning short supply controls is self-contained and is the only location in the EAR for both the prohibitions and exceptions applicable to short supply controls.
(j)
(2) Review the definition of U.S. Person in part 744 of the EAR.
(k)
(l)
(m)
(n)
(1) If none of the ten general prohibitions is applicable to your export from the United States, no license from BIS is required, you do not need to qualify for a License Exception under part 740 of the EAR. You should skip the Steps in § 732.4 of this part regarding License Exceptions and proceed directly to the Steps in § 732.5 of this part regarding recordkeeping, clearing the Bureau of Customs and Border Protection with the appropriate Shipper's Export Declaration or Automated Export System record, and using the required Destination Control Statement.
(2) If none of the ten general prohibitions is applicable to your reexport or export from abroad, no license is required and you should skip all remaining Steps.
(3) If one or more of the ten general prohibitions are applicable, continue with the remaining steps.
(a)
(b)
(2)
(3)
(ii) You may meet the conditions for more than one License Exception. Moreover, although you may not qualify for some License Exceptions you may qualify for others. Review the broadest License Exceptions first, and use any License Exception available to you. You are not required to use the most restrictive applicable License Exception. If you fail to qualify for the License Exception that you first consider, you may consider any other License Exception until you have determined that no License Exception is available.
(iii) License Exceptions TMP, RPL, BAG, AVS, GOV, and TSU authorize exports notwithstanding the provisions of the CCL. List-based License Exceptions (LVS, GBS, CIV, TSR, and APP) are available only to the extent specified on the CCL. Part 740 of the EAR provides authorization for reexports only to the extent each License Exception expressly authorizes reexports. License Exception APR authorizes reexports only.
(iv) If you are exporting under License Exceptions GBS, CIV, LVS, APP, TSR, or GOV, you should review § 743.1 of the EAR to determine the applicability of certain reporting requirements.
(4)
(i) Countries are arranged in country groups for ease of reference. For a listing of country groups, please refer to Supplement No. 1 to part 740 of the EAR. Unless otherwise indicated in a License Exception, License Exceptions do not apply to any exports or reexports to embargoed destinations. If your export or reexport is subject to General Prohibition Six (Embargo) for embargoed destinations, License Exceptions are only available to the extent specifically provided in part 746 of the EAR concerning embargoed destinations.
(ii) Special commodity controls apply to short supply items. No License Exceptions described in part 740 of the EAR may be used for items listed on the CCL as controlled for Short Supply reasons. License Exceptions for short supply items are found in part 754 of the EAR.
(5)
(6)
(7)
(a)
(1)
(i)
(ii)
(iii)
(2)
(3)
(b)
(c)
Sections 732.1 through 732.4 of this part are useful in determining the license requirements that apply to you. Other portions of the EAR impose other obligations and requirements. Some of them are:
(a) Requirements relating to the use of a license in § 758.4 of the EAR.
(b) Obligations of carriers, forwarders, exporters and others to take specific steps and prepare and deliver certain documents to assure that items
(c) Duty of carriers to return or unload shipments at the direction of U.S. Government officials (see § 758.8 of the EAR).
(d) Specific obligations imposed on parties to Special Comprehensive licenses in part 752 of the EAR.
(e) Recordkeeping requirements imposed in part 762 of the EAR.
(f) Requirements of part 764 of the EAR to disclose facts that may come to your attention after you file a license application or make other statements to the government concerning a transaction or proposed transaction that is subject to the EAR.
(g) Certain obligations imposed by part 760 of the EAR on parties who receive requests to take actions related to foreign boycotts and prohibits certain actions relating to those boycotts.
Various requirements of the EAR are dependent upon a person's knowledge of the end-use, end-user, ultimate destination, or other facts relating to a transaction or activity. These provisions include the nonproliferation-related “catch-all” sections and the prohibition against proceeding with a transaction with knowledge that a violation of the EAR has occurred or is about to occur.
(a) BIS provides the following guidance on how individuals and firms should act under this knowledge standard. This guidance does not change or interpret the EAR.
(1)
(2)
(3)
(4)
(5)
(6)
(b) Industry has an important role to play in preventing exports and reexports contrary to the national security and foreign policy interests of the United States. BIS will continue to work in partnership with industry to make this front line of defense effective, while minimizing the regulatory burden on exporters. If you have any question about whether you have encountered a “red flag”, you may contact the Office of Export Enforcement at 1-800-424-2980 or the Office of Exporter Services at (202) 482-4532.
Possible indicators that an unlawful diversion might be planned by your customer include the following:
1. The customer or purchasing agent is reluctant to offer information about the end-use of a product.
2. The product's capabilities do not fit the buyer's line of business; for example, a small bakery places an order for several sophisticated lasers.
3. The product ordered is incompatible with the technical level of the country to
4. The customer has little or no business background.
5. The customer is willing to pay cash for a very expensive item when the terms of the sale call for financing.
6. The customer is unfamiliar with the product's performance characteristics but still wants the product.
7. Routine installation, training or maintenance services are declined by the customer.
8. Delivery dates are vague, or deliveries are planned for out-of-the-way destinations.
9. A freight forwarding firm is listed as the product's final destination.
10. The shipping route is abnormal for the product and destination.
11. Packaging is inconsistent with the stated method of shipment or destination.
12. When questioned, the buyer is evasive or unclear about whether the purchased product is for domestic use, export or reexport.
50 U.S.C. app. 2401
(a) In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C. This part describes the scope of the Export Administration Regulations (EAR) and explains certain key terms and principles used in the EAR. This part provides the rules you need to use to determine whether items and activities are subject to the EAR. This part is the first step in determining your obligations under the EAR. If neither your item nor your activity is subject to the EAR, then you do not have any obligations under the EAR and you do not need to review other parts of the EAR. If you already know that your item or activity is subject to the EAR, you do not need to review this part and you can go on to review other parts of the EAR to determine your obligations. This part also describes certain key terms and principles used in the EAR. Specifically, it includes the following terms: “subject to the EAR,” “items subject to the EAR,” “export,” and “reexport.” These and other terms are also included in part 772 of the EAR, Definitions of Terms, and you should consult part 772 of the EAR for the meaning of terms used in the EAR. Finally, this part makes clear that compliance with the EAR does not relieve any obligations imposed under foreign laws.
(b) This part does not address any of the provisions set forth in part 760 of the EAR, Restrictive Trade Practices or Boycotts.
(c) This part does not define the scope of legal authority to regulate exports, including reexports, or activities found in the Export Administration Act and other statutes. What this part does do is set forth the extent to which such legal authority has been exercised through the EAR.
(a)
(2) Items and activities subject to the EAR may also be controlled under export-related programs administered by other agencies. Items and activities subject to the EAR are not necessarily exempted from the control programs of other agencies. Although BIS and other agencies that maintain controls for national security and foreign policy reasons try to minimize overlapping jurisdiction, you should be aware that in some instances you may have to comply with more than one regulatory program.
(3) The term “subject to the EAR” should not be confused with licensing or other requirements imposed in other parts of the EAR. Just because an item or activity is subject to the EAR does not mean that a license or other requirement automatically applies. A license or other requirement applies only in those cases where other parts of the EAR impose a licensing or other requirement on such items or activities.
(b)
(2)
(i) Any release of technology or software subject to the EAR in a foreign country; or
(ii) Any release of technology or source code subject to the EAR to a foreign national. Such release is deemed to be an export to the home country or countries of the foreign national. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)). Note that the release of any item to any party with knowledge a violation is about to occur is prohibited by § 736.2(b)(10) of the EAR.
(3)
(i) Visual inspection by foreign nationals of U.S.-origin equipment and facilities;
(ii) Oral exchanges of information in the United States or abroad; or
(iii) The application to situations abroad of personal knowledge or technical experience acquired in the United States.
(4)
(5)
(6) For purposes of the EAR, the export or reexport of items subject to the EAR that will transit through a country or countries or be transshipped in a country or countries to a new country or are intended for reexport to the new country, are deemed to be exports to the new country.
(7) If a territory, possession, or department of a foreign country is not listed on the Country Chart in Supplement No. 1 to part 738 of the EAR, the export or reexport of items subject to the EAR to such destination is deemed under the EAR to be an export to the foreign country. For example, a shipment to the Cayman Islands, a dependent territory of the United Kingdom, is deemed to be a shipment to the United Kingdom.
(8) Export or reexport of items subject to the EAR does not include shipments among any of the states of the United States, the Commonwealth of Puerto Rico, or the Commonwealth of the Northern Mariana Islands or any territory, dependency, or possession of the United States. These destinations are listed in Schedules C & E, Classification of Country and Territory Designations for U.S. Export Statistics, issued by the Bureau of the Census.
(9)
(A) An actual shipment, transfer, or transmission out of the United States (see also paragraph (b)(9)(ii) of this section); or
(B) A transfer of such software in the United States to an embassy or affiliate of a foreign country.
(ii) The export of encryption source code and object code software controlled for “EI” reasons under ECCN 5D002 on the Commerce Control List (see Supplement No. 1 to part 774 of the EAR) includes downloading, or causing the downloading of, such software to locations (including electronic bulletin boards, Internet file transfer protocol, and World Wide Web sites) outside the U.S., or making such software available for transfer outside the United States, over wire, cable, radio, electro-magnetic, photo optical, photoelectric or other comparable communications facilities accessible to persons outside the United States, including transfers from electronic bulletin boards, Internet file transfer protocol and World Wide Web sites, unless the person making the software available takes precautions adequate to prevent unauthorized transfer of such code. See § 740.13(e) of the EAR for notification requirements for exports or reexports of encryption source code and object code software considered to be publicly available consistent with the provisions of § 734.3(b)(3) of the EAR.
(iii) Subject to the General Prohibitions described in part 736 of the EAR, such precautions for Internet transfers of products eligible for export under § 740.17 (b)(2) of the EAR (encryption software products, certain encryption source code and general purpose encryption toolkits) shall include such measures as:
(A) The access control system, either through automated means or human intervention, checks the address of every system outside of the U.S. or Canada requesting or receiving a transfer and verifies such systems do not have a domain name or Internet address of a foreign government end-user (
(B) The access control system provides every requesting or receiving party with notice that the transfer includes or would include cryptographic software subject to export controls under the Export Administration Regulations, and anyone receiving such a transfer cannot export the software without a license or other authorization; and
(C) Every party requesting or receiving a transfer of such software must acknowledge affirmatively that the software is not intended for use by a government end-user, as defined in part 772, and he or she understands the cryptographic software is subject to export controls under the Export Administration Regulations and anyone receiving the transfer cannot export the software without a license or other authorization. BIS will consider acknowledgments in electronic form provided they
(a) Except for items excluded in paragraph (b) of this section, the following items are subject to the EAR:
(1) All items in the United States, including in a U.S. Foreign Trade Zone or moving intransit through the United States from one foreign country to another;
(2) All U.S. origin items wherever located;
(3) U.S. origin parts, components, materials or other commodities integrated abroad into foreign-made products, U.S. origin software commingled with foreign software, and U.S. origin technology commingled with foreign technology:
(i) In any quantity, as described in section 734.4(a) of this part; or
(ii) In quantities exceeding
(4) Certain foreign-made direct products of U.S. origin technology or software, as described in § 736.2(b)(3) of the EAR. The term “direct product” means the immediate product (including processes and services) produced directly by the use of technology or software; and
(5) Certain commodities produced by any plant or major component of a plant located outside the United States that is a direct product of U.S.-origin technology or software, as described in § 736.2(b)(3) of the EAR.
(b) The following items are not subject to the EAR:
(1) Items that are exclusively controlled for export or reexport by the following departments and agencies of the U.S. Government which regulate exports or reexports for national security or foreign policy purposes:
(i)
(ii)
(iii)
(iv)
(v)
(2) Prerecorded phonograph records reproducing in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals; printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals; children's picture and painting books; newspaper and periodicals, unbound, excluding waste; music books; sheet music; calendars and calendar blocks, paper; maps, hydrographical charts, atlases, gazetteers, globe covers, and globes (terrestrial and celestial); exposed and developed microfilm reproducing, in
(3) Publicly available technology and software, except software controlled for “EI” reasons under ECCN 5D002 on the Commerce Control List and mass market encryption software with symmetric key length exceeding 64-bits controlled under ECCN 5D992, that:
(i) Are already published or will be published as described in § 734.7 of this part;
(ii) Arise during, or result from, fundamental research, as described in § 734.8 of this part;
(iii) Are educational, as described in § 734.9 of this part;
(iv) Are included in certain patent applications, as described in § 734.10 of this part.
A printed book or other printed material setting forth encryption source code is not itself subject to the EAR (see § 734.3(b)(2)). However, notwithstanding § 734.3(b)(2), encryption source code in electronic form or media (e.g., computer diskette or CD ROM) remains subject to the EAR (see § 734.3(b)(3)).
(4) Foreign made items that have less than the
(c) “Items subject to the EAR” consist of the items listed on the Commerce Control List (CCL) in part 774 of the EAR and all other items which meet the definition of that term. For ease of reference and classification purposes, items subject to the EAR which are
(a)
(2) Foreign produced encryption technology that incorporates U.S. origin encryption technology controlled by ECCN 5E002 is subject to the EAR regardless of the amount of U.S. origin content.
(3) There is no
(i) Commercial Standby Instrument Systems (CSIS) of the type described in ECCN 7A994 on the Commerce Control List (Supplement No. 1 to part 774 the EAR) when the CSISs integrate QRS11-00100-100/101 Micromachined Angular Rate Sensors; and
(ii) Aircraft of the type described in ECCN 9A991 when such aircraft incorporate a CSIS integrating a QRS11-00100-100/101 sensor.
QRS11 Micromachined Angular Rate Sensors are subject to the export licensing jurisdiction of the U.S. Department of State, Directorate of Defense Trade Controls, except when the QRS11-00100-100/101 version of the sensor is integrated into and included as an integral part of a CSIS of the type described in ECCN 7A994 or aircraft of the type described in ECCN 9A991 that incorporates a CSIS that has such a sensor integrated, or is exported solely for integration into such a system.
(b)
(1) The U.S. origin commodities or software, if controlled under ECCNs 5A002.a.1, .a.2, .a.5, or .a.6, or 5D002, must have been:
(i) Authorized for license exception TSU because of having met the notification requirements of § 740.13(e) of the EAR (ECCN 5D002 only);
(ii) Authorized for License Exception ENC by BIS after a review pursuant to § 740.17(b)(3) of the EAR; or
(iii) Authorized for License Exception ENC by BIS after a review pursuant to § 740.17(b)(2), and the foreign made product will not be sent to any destination in Country Group E:1 in Supplement No. 1 to part 740 of the EAR.
(2) The U.S. origin encryption items, if controlled under ECCNs 5A992, 5D992, or 5E992 must:
(i) Have met the notification requirements of § 742.15(b)(1) of the EAR; or
(ii) Have been determined by BIS to be “mass market” commodities or software after a review in accordance with § 742.15(b)(2) of the EAR (ECCNs 5A992 and 5D992 only); or
(iii) Be an item described in § 742.15(b)(3)(ii) or § 742.15(b)(3)(iii) of the EAR.
See supplement No. 2 to this part for
(c) Except as provided in paragraphs(a) and (b)(1)(iii) and subject to the provisions of paragraphs (b)(1)(i), (b)(1)(ii) and (b)(2) of this section, the following reexports are not subject to the EAR when made to a terrorist-supporting country listed in Country Group E:1 (see Supplement No. 1 to part 740 of the EAR).
(1) Reexports of a foreign-made commodity incorporating controlled U.S.-origin commodities valued at 10% or less of the total value of the foreign-made commodity;
(2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 10% or less of the total value of the foreign-made software; or
(3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 10% or less of the total value of the foreign technology.
(d) Except as provided in paragraph (a) of this section and subject to the provisions of paragraph (b) of this section, the following reexports are not subject to the EAR when made to countries other than those described in paragraph (c) of this section.
(1) Reexports of a foreign-made commodity incorporating controlled U.S.-origin commodities valued at 25% or less of the total value of the foreign-made commodity;
(2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 25% or less of the total value of the foreign-made software; or
(3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 25% or less of the total value of the foreign technology.
(e) For purposes of determining
(f) You are responsible for making the necessary calculations to determine whether the
(g) See § 770.3 of the EAR for principles that apply to commingled U.S.-origin technology and software.
(h) Notwithstanding the provisions of paragraphs (c) and (d) of this section, U.S.-origin technology controlled by ECCN 9E003a.1 through a.12, and .f, and related controls, and encryption software controlled for “EI” reasons under ECCN 5D002 or encryption technology controlled for “EI” reasons under ECCN 5E002 do not lose their U.S.-origin when redrawn, used, consulted, or otherwise commingled abroad in any respect with other software or technology of any other origin. Therefore, any subsequent or similar software or technology prepared or engineered abroad for the design, construction, operation, or maintenance of any plant or equipment, or part thereof, which is based on or uses any such U.S.-origin
The following kinds of activities are subject to the EAR:
(a) Certain activities of U.S. persons related to the proliferation of nuclear explosive devices, chemical or biological weapons, missile technology as described in § 744.6 of the EAR, and the proliferation of chemical weapons as described in part 745 of the EAR.
(b) Activities of U.S. or foreign persons prohibited by any order issued under the EAR, including a Denial Order issued pursuant to part 766 of the EAR.
(c) Technical assistance by U.S. persons with respect to encryption commodities or software as described in § 744.9 of the EAR.
(a) If you are not sure whether a commodity, software, technology, or activity is subject to the EAR, or is subject to licensing or other requirements under the EAR, you may ask BIS for an advisory opinion, classification, or a determination whether a particular item or activity is subject to the EAR. In many instances, including those where the item is specially designed, developed, configured, adapted, or modified for military application, the item may fall under the licensing jurisdiction of the Department of State and may be subject to the controls of the International Traffic in Arms Regulations (22 CFR parts 120 through 130) (ITAR). In order to determine if the Department of State has licensing jurisdiction over an item, you should submit a request for a commodity jurisdiction determination to the Department of State, Directorate of Defense Trade Controls. Exporters should note that in a very limited number of cases, the categories of items may be subject to both the ITAR and the EAR. The relevant departments are working to eliminate any unnecessary overlaps that may exist.
(b) As the agency responsible for administering the EAR, BIS is the only agency that has the responsibility for determining whether an item or activity is subject to the EAR and, if so, what licensing or other requirements apply under the EAR. Such a determination only affects EAR requirements, and does not affect the applicability of any other regulatory programs.
(c) If you need help in determining BIS licensing or other requirements you may ask BIS for help by following the procedures described in § 748.3 of the EAR.
(a) Information is “published” when it becomes generally accessible to the interested public in any form, including:
(1) Publication in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of persons interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution (See Supplement No. 1 to this part, Questions A(1) through A(6));
(2) Ready availability at libraries open to the public or at university libraries (See Supplement No. 1 to this part, Question A(6));
(3) Patents and open (published) patent applications available at any patent office; and
(4) Release at an open conference, meeting, seminar, trade show, or other open gathering.
(i) A conference or gathering is “open” if all technically qualified members of the public are eligible to
(ii) All technically qualified members of the public may be considered eligible to attend a conference or other gathering notwithstanding a registration fee reasonably related to cost and reflecting an intention that all interested and technically qualified persons be able to attend, or a limitation on actual attendance, as long as attendees either are the first who have applied or are selected on the basis of relevant scientific or technical competence, experience, or responsibility (See Supplement No. 1 to this part, Questions B(1) through B(6)).
(iii) “Publication” includes submission of papers to domestic or foreign editors or reviewers of journals, or to organizers of open conferences or other open gatherings, with the understanding that the papers will be made publicly available if favorably received. (See Supplement No. 1 to this part, Questions A(1) and A(3)).
(b) Software and information is published when it is available for general distribution either for free or at a price that does not exceed the cost of reproduction and distribution. See Supplement No. 1 to this part, Questions G(1) through G(3).
(c) Notwithstanding paragraphs (a) and (b) of this section, note that encryption software controlled under ECCN 5D002 for “EI” reasons on the Commerce Control List and mass market encryption software with symmetric key length exceeding 64-bits controlled under ECCN 5D992 remain subject to the EAR.
(a)
(b)
(2) Prepublication review by a sponsor of university research solely to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers does not change the status of the research as fundamental research. However, release of information from a corporate sponsor to university researchers where the research results are subject to prepublication review, is subject to the EAR. (See Supplement No. 1 to this part, Questions D(7), D(9), and D(10).)
(3) Prepublication review by a sponsor of university research solely to ensure that publication would not compromise patent rights does not change the status of fundamental research, so long as the review causes no more than a temporary delay in publication of the research results.
(4) The initial transfer of information from an industry sponsor to university researchers is subject to the EAR where the parties have agreed that the sponsor may withhold from publication some or all of the information so provided. (See Supplement No. 1 to this part, Question D(2).)
(5) University based research is not considered “fundamental research” if the university or its researchers accept (at the request, for example, of an industrial sponsor) other restrictions on publication of scientific and technical information resulting from the project or activity. Scientific and technical information resulting from the research will nonetheless qualify as fundamental research once all such restrictions have expired or have been removed. (See Supplement No. 1 to this part, Question D(7) and D(9).)
(6) The provisions of § 734.11 of this part will apply if a university or its researchers accept specific national security controls (as defined in § 734.11 of this part) on a research project or activity sponsored by the U.S. Government. (See Supplement No. 1 to this part, Questions E(1) and E(2).)
(c)
(d)
(2) Prepublication review by the company solely to ensure that the publication would compromise no proprietary information provided by the company to the researchers is not considered to be a proprietary restriction under paragraph (d)(1) of this section. However, paragraph (d)(1) of this section does not authorize the release of information to university researchers where the research results are subject to prepublication review. (See Supplement No. 1 to this part, Questions D(8), D(9), and D(10).)
(3) Prepublication review by the company solely to ensure that prepublication would compromise no patent rights will not be considered a proprietary restriction for this purpose, so long as the review causes no more than a temporary delay in publication of the research results.
(4) However, the initial transfer of information from a business entity to researchers is not authorized under the “fundamental research” provision where the parties have agreed that the business entity may withhold from publication some or all of the information so provided.
(e)
“Educational information” referred to in § 734.3(b)(3)(iii) of this part is not subject to the EAR if it is released by instruction in catalog courses and associated teaching laboratories of academic institutions. Dissertation research is discussed in § 734.8(b) of this part. (Refer to Supplement No. 1 to this part, Question C(1) through C(6)). Note that the provisions of this section do not apply to encryption software controlled under ECCN 5D002 for “EI” reasons on the Commerce Control List or to mass market encryption software with symmetric key length exceeding 64-bits controlled under ECCN 5D992.
The information referred to in § 734.3(b)(3)(iv) of this part is:
(a) Information contained in a patent application prepared wholly from foreign-origin technical data where the application is being sent to the foreign inventor to be executed and returned to the United States for subsequent filing in the U.S. Patent and Trademark Office;
(b) Information contained in a patent application, or an amendment, modification, supplement or division of an application, and authorized for filing in a foreign country in accordance with the regulations of the Patent and Trademark Office, 37 CFR part 5;
(c) Information contained in a patent application when sent to a foreign country before or within six months after the filing of a United States patent application for the purpose of obtaining the signature of an inventor who was in the United States when the invention was made or who is a co-inventor with a person residing in the United States.
(a) If research is funded by the U.S. Government, and specific national security controls are agreed on to protect information resulting from the research, § 734.3(b)(3) of this part will not apply to any export or reexport of such information in violation of such controls. However, any export or reexport of information resulting from the research that is consistent with the specific controls may nonetheless be made under this provision.
(b) Examples of “specific national security controls” include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research. A general reference to one or more export control laws or regulations or a general reminder that the Government retains the right to classify is not a “specific national security control”. (See Supplement No. 1 to this part, Questions E(1) and E(2).)
Any person who complies with any of the license or other requirements of the EAR is not relieved of the responsibility of complying with applicable foreign laws and regulations. Conversely, any person who complies with the license or other requirements of a foreign law or regulation is not relieved of the responsibility of complying with U.S. laws and regulations, including the EAR.
This Supplement No. 1 contains explanatory questions and answers relating to technology and software that is subject to the EAR. It is intended to give the public guidance in understanding how BIS interprets this part, but is only illustrative, not comprehensive. In addition, facts or circumstances that differ in any material way from those set forth in the questions or answers will be considered under the applicable provisions of the EAR. Exporters should note that the provisions of this supplement do not apply to encryption software (including source code) transferred from the U.S. Munitions List to the Commerce Control List consistent with E.O. 13026 of November 15, 1996 (61 FR 58767) and pursuant to the Presidential Memorandum of that date. See § 742.15 of the EAR. This supplement is divided into nine sections according to topic as follows:
You should probably assume, however, that your visitor will be debriefed later about anything of potential military value he learns from you. If you are concerned that giving such information to him, even though permitted, could jeopardize U.S. security interests, the Commerce Department can put you in touch with appropriate Government scientists who can advise you. Write to Department of Commerce, Bureau of Industry and Security, P.O. Box 273, Washington, DC 20044.
1. Information is uploaded to an electronic bulletin board by a person that is the owner or originator of the information;
2. That person does not charge a fee to the bulletin board administrator or the subscribers of the bulletin board; and
3. The bulletin board is available for subscription to any subscriber in a given community regardless of the cost of subscription.
Such information is “publicly available” and therefore not subject to the EAR even if it is not elsewhere published and is not in a library. The reason for this conclusion is that the bulletin board subscription charges or line charges are for distribution exclusively, and the provider of the information receives nothing for the inherent value of the information.
(a) Use the following guidelines in determining values for establishing exemptions or for submission of a request for authorization:
(1) U.S. content value.
(i) U.S. content value is the delivered cost to the foreign manufacturer of the U.S. origin parts, components, or materials. (When affiliated firms have special arrangements that result in lower than normal pricing, the cost should reflect “fair market” prices that would normally be charged to similar, unaffiliated customers.)
(ii) In calculating the U.S. content value, do not include parts, components, or materials that could be exported from the United States to the new country of destination without a license (designated as “NLR”) or under License Exception GBS (see part 740 of the EAR) or under NLR for items classified as EAR99.
(2) The foreign-made product value is the normal selling price f.o.b. factory (excluding value added taxes or excise taxes).
(3) To determine the value of the U.S.-origin controlled content, you should classify the U.S.-origin content on the Commerce Control List, determine those items that would require a license from BIS for reexport to the ultimate destination of the foreign-made product if such parts, components, or materials were reexported to that destination in the form received, and divide the total value of the controlled U.S. parts, components, and materials incorporated into the foreign-made item by the sale price of the foreign-made item.
(4) If no U.S. parts, components or materials are incorporated or if the incorporated U.S. parts, components, and materials are below the
(a)—U.S. origin peripheral or accessory devices that are merely rack mounted with or cable connected into foreign equipment are not deemed to be incorporated components even though intended for use with products made abroad. Rather, such items are treated as U.S. items that retain their identity and remain subject to the EAR.
(b) One-time report prior to reliance upon the
(2)
(3)
(4)
(5)
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. A person may undertake transactions subject to the EAR without a license or other authorization, unless the regulations affirmatively state such a requirement. As such, if an export, reexport, or activity is subject to the EAR, the general prohibitions contained in this part and the License Exceptions specified in part 740 of the EAR must be reviewed to determine if a license is necessary. In the case of all exports from the United States, you must document your export as described in part 762 of the EAR regarding recordkeeping and clear your export through the U.S. Customs Service as described in part 758 of the EAR regarding export clearance requirements. Also note that for short supply controls all prohibitions and License Exceptions are in part 754 of the EAR.
(a) In this part we tell you:
(1) The facts that make your proposed export, reexport, or conduct subject to these general prohibitions, and
(2) The ten general prohibitions.
(b) Your obligations under the ten general prohibitions and under the EAR depend in large part upon the five types of information described in § 736.2(a) of this part and upon the general prohibitions described in § 736.2(b) of this part. The ten general prohibitions contain cross-references to other parts of the EAR that further define the breadth of the general prohibitions. For that reason, this part is not freestanding. In part 732, we provide certain steps you may follow in proper order to help you understand the general prohibitions and their relationship to other parts of the EAR.
(c) If you violate any of these ten general prohibitions, or engage in other conduct contrary to the Export Administration Act, the EAR, or any order, license, License Exception, or authorization issued thereunder, as described in part 764 of the EAR regarding enforcement, you will be subject to the sanctions described in that part.
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(1)
(i) The item is controlled for a reason indicated in the applicable Export Control Classification Number (ECCN), and
(ii) Export to the country of destination requires a license for the control reason as indicated on the Country Chart at part 738 of the EAR. (The scope of this prohibition is determined by the correct classification of your item and the ultimate destination as that combination is reflected on the Country Chart.)
(2)
(A) It incorporates more than the
(B) It is controlled for a reason indicated in the applicable ECCN; and
(C) Its export to the country of destination requires a license for that control reason as indicated on the Country Chart. (The scope of this prohibition is determined by the correct classification of your foreign-made item and the ultimate destination, as that combination is reflected on the Country Chart.)
(ii) Each License Exception described in part 740 of the EAR supersedes General Prohibition Two if all terms and conditions of a given License Exception are met by the exporter or reexporter.
(3)
(ii)
(A)
(
(
(B)
(
(
(iii)
(4)
(ii) There are no License Exceptions described in part 740 of the EAR that authorize conduct prohibited by this General Prohibition Four.
(5)
(6)
(ii) License Exceptions to General Prohibition Six are described in part 746 of the EAR, on Embargoes and Other Special Controls. Unless a License Exception or other authorization is authorized in part 746 of the EAR, the License Exceptions described in part 740 of the EAR are not available to overcome this general prohibition.
(7)
(B) If you are a U.S. person as that term is defined in § 744.6(c) of the EAR, you may not export a Schedule 1 chemical listed in Supplement No. 1 to Part 745 without first complying with the provisions of §§ 742.18 and 745.1 of the EAR.
(C) If you are a U.S. person as that term is defined in § 744.6(c) of the EAR, you may not export a Schedule 3 chemical listed in Supplement No. 1 to Part 745 to a destination not listed in Supplement No. 2 to Part 745 without complying with the End-Use Certificate requirements in § 745.2 of the EAR that apply to Schedule 3 chemicals controlled for CW reasons in ECCN 1C350, ECCN 1C355, or ECCN 1C395.
(8)
(ii)
(9)
(10)
General Order No. 1 of September 16, 1998; Establishing a 24-month validity period on reexport authorizations issued without a validity period and revoking those exceeding that period.
(a)
(b)
(1) Effective September 16, 1998, all such outstanding reexport authorizations for terrorist-supporting countries (see parts 742 and 746 of the EAR) are revoked.
(2) Effective November 16, 1998, all other such outstanding reexport authorizations are revoked.
(c)
(d)
(e)
General Order No. 2 of May 14, 2004; sections 5(a)(1) and 5(a)(2)(A) of the Syria Accountability and Lebanese Sovereignty Act of 2003 (Public Law 108-175, codified as a note to 22 U.S.C. 2151) (the SAA), require (1) a prohibition on the export to Syria of all items on the Commerce Control List (in 15 CFR part 774)(CCL) and (2) a prohibition on the export to Syria of products of the United States, other than food and medicine. The President has also exercised national security waiver authority pursuant to Section 5(b) of the SAA for certain transactions. This Order is issued consistent with Executive Order 13338 of May 11, 2004, which implements the SAA.
(a)
(b)
(c)
(1) TMP for items for use by the news media as set forth in § 740.9(a)(2)(viii) of the EAR,
(2) GOV for items for personal or official use by personnel and agencies of the U.S. Government as set forth in § 740.11(b)(2)(i) and (ii) of the EAR,
(3) TSU for operation technology and software, sales technology and software updates pursuant to the terms of § 740.13(a), (b), or (c) of the EAR,
(4) BAG for exports of items by individuals leaving the United States as personal baggage pursuant to the terms of § 740.14 (a) through (d) only of the EAR, and
(5) AVS for the temporary sojourn of civil aircraft reexported to Syria pursuant to the terms of § 740.15(a)(4) of the EAR.
(d)
(e)
General Order No. 3 of June 5, 2006, as amended on September 6, 2006; Imposition of license requirement for exports and reexports of items subject to the EAR to Mayrow General Trading and entities related, as follows: Micatic General Trading; Majidco Micro Electronics; Atlinx Electronics; Micro Middle East Electronics; Narinco; Farrokh Nia Yaghmaei, a.k.a., Farrokh Nia Yaghmayi; H. Ghasir; Akbar Ashraf Vaghefi, Neda Overseas Electronics L.L.C., Mostafa Salehi, IKCO Trading GmbH, Pyramid Technologies, A.H. Shamnad, S. Basheer, Hamed Athari, and Mayrow Technics Co. Mayrow General Trading and all entities related are located in Dubai, United Arab Emirates; except for Akbar Ashraf Vaghefi (located in Germany and Dubai, United Arab Emirates) and IKCO Trading GmbH (located in Germany).
(a)
(2) Effective September 6, 2006, a license is required to export or reexport any item subject to the EAR to these entities related to Mayrow General Trading, as follows: Akbar Ashraf Vaghefi; Neda Overseas Electronics L.L.C.; Mostafa Salehi; IKCO Trading GmbH; Pyramid Technologies; A.H. Shamnad; S. Basheer; Hamed Athari; and Mayrow Technics Co. All entities related to Mayrow General Trading described in paragraph (a)(2) are located in Dubai, United Arab Emirates; except for Akbar Ashraf Vaghefi (located in Germany and Dubai, United Arab Emirates) and IKCO Trading GmbH (located in Germany). This license requirement applies with respect to any transaction in which any of the above-named entities will act as purchaser, intermediate consignee, ultimate consignee, or end-user of the items.
(b)
(a) Exclusion of persons guilty of unethical conduct or not possessing required integrity and ethical standards.
(1)
(2)
(i) Inducing or attempting to induce by gifts, promises, bribes, or otherwise, any officer or employee of BIS or any customs or post office official, to take any action with respect to the issuance of licenses or any other aspects of the administration of the Export Administration Act, whether or not in violation of any regulation;
(ii) Offering or making gifts or promises thereof to any such officer or employee for any other reason;
(iii) Soliciting by advertisement or otherwise the handling of business before BIS on the representation, express or implied, that such person, through personal acquaintance or otherwise, possesses special influence over any officer or employee of BIS;
(iv) Charging, or proposing to charge, for any service performed in connection with the issuance of any license, any fee wholly contingent upon the granting of such license and the amount or value thereof. This provision will not be construed to prohibit the charge of any fee agreed to by the parties; provided that the out-of-pocket expenditures and the reasonable value of the services performed, whether or not the license is issued and regardless of the amount thereof, are fairly compensated; and
(v) Knowingly violating or participating in the violation of, or an attempt to violate, any regulation with respect to the export of commodities or technical data, including the making of or inducing another to make any false representations to facilitate any export in violation of the Export Administration Act or any order or regulation issued thereunder.
(3)
(i) The submission on behalf of another of applications for export licenses or other documents required to be filed with BIS, or the execution of the same;
(ii) Conferences or other communications on behalf of another with officers or employees of BIS for the purpose of soliciting or expediting approval by BIS of applications for export licenses or other documents, or with respect to quotas, allocations, requirements or other export control actions, pertaining to matters within the jurisdiction of BIS;
(iii) Participating on behalf of another in any proceeding pending before BIS; and
(iv) Submission to a customs official on behalf of another of a license or Shipper's Export Declaration or other export control document.
(4)
(b)
50 U.S.C. app. 2401
(a)
(2) The CCL is contained in Supplement No. 1 to part 774 of the EAR. Supplement No. 2 to part 774 of the EAR contains the General Technology and Software Notes relevant to entries contained in the CCL.
(b)
(a)
(b)
(c)
(d)
(i) Since Reasons for Control are not mutually exclusive, numbers are assigned in order of precedence. As an example, if an item is controlled for both National Security and Missile Technology reasons, the entry's third digit will be a “0”. If the item is controlled only for Missile Technology the third digit will be “1”.
(ii) The numbers in either the second or third digit (e.g., 3A
(iii) The last digit within each entry (e.g., 3A001) is used for the sequential numbering of ECCNs to differentiate between entries on the CCL.
(2)
(i)
(A) The “Controls” header identifies all applicable Reasons for Control, in order of restrictiveness, and to what extent each applies (e.g., to the entire entry or only to certain subparagraphs). Those requiring licenses for a larger number of countries and/or items are listed first. As you read down the list the number of countries and/or items requiring a license declines. Since Reasons for Control are not mutually exclusive, items controlled within a particular ECCN may be controlled for more than one reason. The following is a list of all possible Reasons for Control:
(B) The “Country Chart” header identifies, for each applicable Reason for Control, a column name and number (e.g., CB Column 1). These column identifiers are used to direct you from the CCL to the appropriate column identifying the countries requiring a license. Consult part 742 of the EAR for an indepth discussion of the licensing requirements and policies applicable to each Country Chart column.
(ii)
(iii)
(B)
(C)
(D)
(a)
(1)
(2) [Reserved]
(b)
(c)
(d)
(a)
(2)
(i)
(A) If yes, identify the single Reason for Control and the relevant Country Chart column identifier (e.g., CB Column 1).
(B) If no, identify the Country Chart column identifier for each applicable Reason for Control (e.g., NS Column 1, NP Column 1, etc.).
(ii)
(A) If yes, a license application must be submitted based on the particular reason for control and destination, unless a License Exception applies. If “Yes” is noted next to any of the listed License Exceptions, you should consult part 740 of the EAR to determine whether you can use any of the available ECCN-drvien License Exceptions to effect your shipment, rather than applying for a license. Each affirmative license requirement must be overcome by a License Exception. If you are unable to qualify for a License Exception based on each license requirement noted on the Country Chart, you must apply for a license. Note that other License Exceptions, not related to the CCL, may also apply to your transaction (See part 740 of the EAR).
(B) If no, a license is not required based on the particular Reason for Control and destination. Provided that General Prohibitions Four through Ten do not apply to your proposed transaction and that any applicable notification or review requirements described in § 742.15(b)(1) and (b)(2) of the EAR have been met for certain encryption items controlled under ECCNs 5A992, 5D992 and 5E992, you may effect your shipment using the symbol “NLR”. Proceed to parts 758 and 762 of the EAR for information on export clearance procedures and recordkeeping requirements. Note that although you may stop after determining a license is required based on the first Reason for Control, it is best to work through each applicable Reason for Control. A full analysis of every possible licensing requirement based on each applicable Reason for Control is required to determine the most advantageous License Exception available for your particular transaction and, if a license is required, ascertain the scope of review conducted by BIS on your license application.
(b)
(2)
b. Having z.
(3)
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C.
(a)
(b)
(c)
(d)
(e)
(f)
(a) You may not use
(1) Your authorization to use a License Exception has been suspended or revoked, or your intended export does not qualify for a License Exception.
(2) The export or reexport is subject to one of the ten General Prohibitions, is not eligible for a License Exception, and has not been authorized by BIS.
(3) The item is primarily useful for surreptitious interception of wire, oral, or electronic communications, or related software, controlled under ECCNs 5A980 or 5D980, unless the item is consigned to and for the official use of an agency of the U.S. Government (see § 740.11(b)(2)(ii) of this part, Governments (GOV)).
(4) The commodity you are shipping is a specially designed crime control and detection instrument or equipment described in § 742.7 of the EAR and you are not shipping to Australia, Japan, New Zealand, or a NATO member state (
(5)(i) The item is controlled for missile technology (MT) reasons, except that the items described in ECCNs 6A008, 7A001, 7A002, 7A004, 7A101, 7A102, 7A103, 7A104, 7B001, 7D001, 7D002, 7D003, 7D101, 7D102, 7E003, or 7E101, may be exported as part of a manned aircraft, land vehicle or marine vehicle or in quantities appropriate for replacement parts for such applications under § 740.9(a)(2)(ii) (License Exception TMP for kits consisting of replacement parts), § 740.10 (License Exception RPL), § 740.13 (License Exception TSU), or § 740.15(c) (License Exception AVS for equipment and spare parts for permanent use on a vessel or aircraft).
(ii) MT controlled commodities described in ECCN 2A001 may be exported or reexported under § 740.9(a)(2)(ii) (License Exception TMP) or § 740.10 (License Exception RPL) as one-for-one replacement for equipment previously legally exported or reexported.
(6) The export or reexport is to a comprehensively embargoed destination (Cuba and Iran), unless a license exception or portion thereof is specifically listed in the license exceptions paragraph pertaining to a particular embargoed country in part 746 of the EAR.
(7)
(8) The item is controlled under ECCNs 2A983, 2D983 or 2E983 and the License Exception is other than:
(i) RPL, under the provisions of § 740.10, including § 740.10(a)(3)(v), which prohibits exports and reexports of replacement parts to countries in Country Group E:1 (see Supplement 1 to part 740));
(ii) GOV, restricted to eligibility under the provisions of § 740.11(b)(2)(ii) or (v); or
(iii) TSU, under the provisions of § 740.13(a) and (c).
(9) The item is a QRS11-00100-100/101 Micromachined Angular Rate Sensor controlled for RS reasons under ECCN 7A994.
(b) All License Exceptions are subject to revision, suspension, or revocation, in whole or in part, without notice. It may be necessary for BIS to stop a shipment or an export transaction at any stage of its progress, e.g., in order to prevent an unauthorized export or reexport. If a shipment is already en route, it may be further necessary to order the return or unloading of the shipment at any port of call.
(c) BIS may by informing the exporter, suspend or revoke any License Exception in order to comply with U.S. Wassenaar obligations. In addition, BIS may inform an exporter, that before using any License Exception, a notice be submitted with BIS concerning the proposed export.
(d) See § 746.3 for restrictions on certain transfers within Iraq of items exported or reexported to Iraq pursuant to a License Exception.
(a)
(b)
(c)
(2)
(3)
(d)
(i)
(ii)
(iii)
(2)
(3)
An order includes commodities valued at $8,000. The order consists of commodities controlled under two ECCN entries, each having an LVS value limit of $5000. Commodities in the order controlled under one ECCN are valued at $3,500 while those controlled under the other ECCN are valued at $4,500. Since the net value of the commodities controlled under each entry falls within the LVS dollar value limits applicable to that entry, the order may be shipped under this License Exception.
(4)
(5)
(e)
(f)
License Exception GBS authorizes exports and reexports to Country Group B (see Supplement No. 1 to part 740) of those commodities where the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR) indicates a license requirement to the ultimate destination for national security reasons only and identified by “GBS—Yes” on the CCL. See § 743.1 of the EAR for reporting requirements for exports of certain commodities under License Exception GBS.
(a)
(b)
(2)
(c)
(d)
(2)
(3)
(4)
(5)
(a)
(1)
(i) Reexport or release the technology to a national of a country in Country Groups D:1 or E:2; or
(ii) Export to Country Groups D:1 or E:2 the direct product of the technology, if such foreign produced direct product is subject to national security controls as identified on the CCL (See General Prohibition Three, § 736.2(b)(3) of the EAR); or
(iii) If the direct product of the technology is a complete plant or any major component of a plant, export to
(2)
(i) Reexport or release the software or the source code for the software to a national of a country in Country Groups D:1 or E:2; nor
(ii) Export to Country Groups D:1 or E:2 the direct product of the software, if such foreign produced direct product is subject to national security controls as identified on the CCL. (See General Prohibition Three, § 736.2(b)(3) of the EAR).
(3)
(4)
(b)
(a)
(2) Technology and software. License Exception APP authorizes exports of technology and software controlled by ECCNs 4D001 and 4E001 specially designed or modified for the “development”, “production”, or “use” of computers, including “electronic assemblies” and specially designed components therefor classified in ECCN 4A003,
(b)
(2) Access and release restrictions. (i)
(ii)
(3) Computers and software eligible for License Exception APP may not be reexported or transferred (in country) without prior authorization from BIS,
(4) You may not use this License Exception to export or reexport items that you know will be used to enhance the APP beyond the eligibility limit allowed to your country of destination.
(5) License Exception APP does not authorize exports and reexports for nuclear, chemical, biological, or missile end-users and end-uses subject to license requirements under § 744.2, § 744.3, § 744.4, and § 744.5 of the EAR. Such exports and reexports will continue to require a license and will be considered on a case-by-case basis. Reexports and transfers (in country) to these end-users and end-uses in eligible countries are strictly prohibited without prior authorization.
(6) Foreign nationals in an expired visa status are not eligible to receive deemed exports of technology or source code under this License Exception. It is the responsibility of the exporter to ensure that, in the case of deemed exports, the foreign national maintains a valid U.S. visa, if required to hold a visa from the United States.
(c)
(2) Eligible commodities. All computers, including electronic assemblies and specially designed components therefore are eligible for export or reexport under License Exception APP to Tier 1 destinations, subject to the restrictions in paragraph (b) of this section.
(3) Eligible technology and software. (i) Technology and software described in paragraph (a)(2) of this section for computers of unlimited APP are eligible for export or reexport under License Exception APP to: Australia, Austria, Belgium, Canada, Denmark,
(ii) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 0.1 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
(iii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 0.75 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
(d)
(2) Eligible commodities. None.
(3) Eligible technology and source code. (i) “Development,” and “production” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 0.1 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) and the provisions of paragraph (d)(4) of this section.
(ii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 0.75 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) and the provisions of paragraph (d)(4) of this section.
(4) Foreign National Review (FNR) requirement for deemed exports. (i)
(ii)
(iii)
(iv)
(v)
(e)
(a)
(b)
(2) For such classification requests, indicate “License Exception KMI” in block 9 on Form BIS-748P. Submit the original request to BIS in accordance with § 748.3 of the EAR and send a copy of the request to:
(c)
(d)
(i) Ultimate consignee; specific end-user name and address, if available; and country of ultimate destination; and
(ii) Quantities of each encryption item shipped.
(2) You must submit reports no later than February 1 and no later than August 1 of any given year.
This License Exception authorizes various temporary exports and reexports; exports and reexports of items temporarily in the United States; and exports and reexports of beta test software.
(a)
(2)
(i)
(A)
(B)
(
(
(
(
(ii)
(A) The parts would qualify for shipment under paragraph (a)(2)(ii)(C) of this section if exported as one-for-one replacements;
(B) The kits remain under effective control of the exporter or an employee of the exporter; and
(C) All parts in the kit are returned, except that one-for-one replacements may be made in accordance with the requirements of License Exception
(iii)
(iv)
(v)
(vi)
(B) Blank video tape (raw stock) for use in recording program material abroad.
(vii)
(viii)
(
(
(
(B) When exporting under this paragraph (a)(2)(viii) from the United States, the exporter must send a copy of the packing list or similar identification of the exported commodities, to: U.S. Department of Commerce, Bureau of Industry and Security, Office of Export Enforcement, Room H4616, 14th Street and Constitution Avenue, N.W., Washington, DC 20230, or any of its field offices, specifying the destination and estimated dates of departure and return. The Office of Export Enforcement (OEE) may spot check returns to assure that the temporary exports and reexports provisions of this License Exception are being used properly.
(C) Commodities or software necessary for news-gathering purposes
(ix)
(B) For purposes of this paragraph (a)(2)(ix), U.S. person is defined as follows: an individual who is a citizen of the United States, an individual who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(2) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). U.S. person also means any juridical person organized under the laws of the United States, or any jurisdiction within the United States (e.g., corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States).
(3)
(B) No commodity or software may be exported to Country Group D:1 (see Supplement No. 1 to part 740) except:
(
(
(
(
(C) These destination restrictions apply to temporary exports to and for use on any vessel, aircraft or territory under ownership, control, lease, or charter by any country in Country Group D:1 or E:2, or any national thereof. (See Supplement No. 1 to part 740.)
(ii)
(iii)
(A) An order to acquire the commodity or software has been received before shipment;
(B) The exporter has prior knowledge that the commodity or software will stay abroad beyond the terms described in this paragraph (a); or
(C) The commodity or software is for lease or rental abroad.
(4)
(i)
(ii)
(iii)
(5)
(b)
A commodity withdrawn from a bonded warehouse in the United States under a “withdrawal for export” customs entry is considered as “moving in transit”. It is not considered as “moving in transit” if it is withdrawn from a bonded warehouse under any other type of customs entry or if its transit has been broken for a processing operation, regardless of the type of customs entry.
Items shipped on board a vessel or aircraft and passing through the United States from one foreign country to another may be exported without a license provided that (a) while passing in transit through the United States, they have not been unladen from the vessel or aircraft on which they entered, and (b) they are not originally manifested to the United States.)
(1)
(i) Items controlled for national security reasons, nuclear nonproliferation reasons, chemical and biological weapons reasons or missile technology reasons may not be exported to Country Group D:1, 2, 3, or 4 (see Supplement No. 1 to part 740), respectively, under this paragraph (b)(1).
(ii) Items may not be exported to Country Group E:2 or Sudan under this section.
(iii) The following may not be exported in transit from the United States under this paragraph (b)(1):
(A) Commodities shipped to the United States under an International Import Certificate, Form BIS-645P;
(B) Chemicals controlled under ECCN 1C350; or
(C) Horses for export by sea (refer to short supply controls in part 754 of the EAR).
(iv) The provisions of paragraph (b)(1) apply to all shipments from Canada moving in transit through the United States to any foreign destination, regardless of the nature of the commodities or software or their origin. For such shipments the customs office at the U.S. port of export will require a copy of Form B-13, Canadian Customs Entry, certified or stamped by Canadian customs authorities, except where the shipment is valued at less than $50.00. (In transit shipments originating in Canada that are exempt from U.S. licensing, or made under a U.S. license or other applicable U.S. License Exception do not require this form.) The commodity or software description, quantity, ultimate consignee, country of ultimate destination, and all other pertinent details of the shipment must be the same on a required Form B-13, as on Commerce Form 7513, or when Form 7513 is not required, must be the same as on Customs Form 7512. When there is a material difference, a corrected Form B-13 authorizing the shipment is required.
(2)
(i) Items may be exported to the country from which imported into the United States. However, items originally imported from Cuba may not be exported unless the U.S. Government had licensed the import from that country.
(ii) Items may be exported to any destination other than the country from which imported except:
(A) Items imported into the United States under an International Import Certificate;
(B) Exports to Country Group E:2 or Sudan (see Supplement No. 1 to part 740); or
(C) Exports to Country Group D:1, 2, 3, or 4 (see Supplement No. 1 to part 740) of items controlled for national security reasons, nuclear nonproliferation reasons, chemical and biological weapons reasons or missile technology reasons, respectively.
(3)
(4)
(i) A destination in Cuba; or
(ii) A destination from which the shipment has been refused entry because of the Foreign Assets Control Regulations of the Treasury Department, unless such return is licensed or otherwise authorized by the Treasury Department, Office of Foreign Assets Control (31 CFR part 500).
(c)
(2) Eligible countries. Encryption software controlled under ECCN 5D002
(3)
(4)
(i) The software producer intends to market the software to the general public after completion of the beta testing, as described in the General Software Note (see Supplement 2 to part 774 of the EAR) or the Cryptography Note in Category 5, Part 2 (“Information Security”) of the Commerce Control List (see Supplement No.1 to part 774 of the EAR);
(ii) The software producer provides the software to the testing consignee free-of-charge or at a price that does not exceed the cost of reproduction and distribution; and
(iii) The software is designed for installation by the end-user without further substantial support from the supplier.
(5)
“We certify that this beta test software will only be used for beta testing purposes, and will not be rented, leased, sold, sublicensed, assigned, or otherwise transferred. Further, we certify that we will not transfer or export any product, process, or service that is the direct product of the beta test software.”
(6)
(7)
(8)
This License Exception authorizes exports and reexports associated with one-for-one replacement of parts or servicing and replacement of equipment.
(a)
(2)
(ii) Parts may be exported only to replace, on a one-for-one basis, parts contained in commodities that were: legally exported from the United States; legally reexported; or made in a foreign country incorporating authorized U.S.-origin parts. (For exports or reexports to the installed base in Libya see § 764.7 of the EAR). The conditions of the original U.S. authorization must not have been violated. Accordingly, the export of replacement parts may be made only by the party who originally exported or reexported the commodity to be repaired, or by a party that has confirmed the appropriate authority for the original transaction.
(iii) The parts to be replaced must either be destroyed abroad or returned promptly to the person who supplied the replacement parts, or to a foreign firm that is under the effective control of that person.
(3)
(ii) No parts may be exported to be held abroad as spare parts or equipment for future use. Replacement parts may be exported to replace spare parts that were authorized to accompany the export of equipment, as those spare parts are utilized in the repair of the equipment. This will allow maintenance of the stock of spares at a consistent level as parts are used.
(iii) No parts may be exported to any destination, except the countries listed in Supplement No. 3 to Part 744 of the EAR (Countries Not Subject to Certain Nuclear End-Use Restrictions in § 744.2(a)) if the item is to be incorporated into or used in nuclear weapons, nuclear explosive devices, nuclear testing related to activities described in § 744.2(a) of the EAR, the chemical processing of irradiated special nuclear or source material, the production of heavy water, the separation of isotopes of source and special nuclear materials, or the fabrication of nuclear reactor fuel containing plutonium, as described in § 744.2(a) of the EAR.
(iv) No replacement parts may be exported to countries in Country Group E:1 (see Supplement No. 1 to this part) (countries designated by the Secretary of State as supporting acts of international terrorism) if the commodity to be repaired is an “aircraft” (as defined in part 772 of the EAR) or national security controlled commodity.
(v) No replacement parts may be exported to countries in Country Group E:1 if the commodity to be repaired is explosives detection equipment controlled under ECCN 2A983 or related software controlled under ECCN 2D983.
(vi) The conditions described in this paragraph (a)(3) relating to replacement of parts do not apply to reexports to a foreign country of parts as replacements in foreign-origin products, if at the time the replacements are furnished, the foreign-origin product is eligible for export to such country under any of the License Exceptions in this part or the exceptions in § 734.4 of the EAR.
(4)
(b)
(2) Commodities and software sent to a United States or foreign party for servicing.
(i)
(ii)
(iii)
(A) The exporter making the shipment is the same person or firm to whom the original license was issued; and
(B) The end-use and the end-user of the serviced commodities or software and other particulars of the transaction, as set forth in the application and supporting documentation that formed the basis for issuance of the license have not changed.
(iv)
(3)
(A) The commodity or software to be replaced must have been previously exported or reexported in its present form under a license or authorization granted by BIS.
(B) No commodity or software may be exported or reexported to replace equipment that is worn out from normal use, nor may any commodity or software be exported to be held in stock abroad as spare equipment for future use.
(C) The replacement item may not improve the basic characteristic, e.g., as to accuracy, capability, performance, or productivity, of the equipment as originally approved for export or reexport under a license issued by BIS.
(D) No shipment may be made to countries in Country Group E:1 (see Supplement No. 1 to this part), or to any other destination to replace defective or otherwise unusable equipment owned or controlled by, or leased or chartered to, a national of any of those countries.
(ii)
(A) By making such an export or reexport, the exporter represents that all the requirements of this paragraph (b) have been met and undertakes to destroy or return the replaced parts as provided in paragraph (b)(3)(ii)(C) of this section.
(B) The defective or otherwise unusable equipment must be replaced free of charge, except for transportation and labor charges. If exporting to the countries listed in Country Group D:1 (except the PRC), the exporter shall replace the commodity or software within the warranty period or within 12 months of its shipment to the ultimate consignee in the country of destination, whichever is shorter.
(C) The commodity or software to be replaced must either be destroyed abroad or returned to the United States, or to a foreign firm in Country Group B that is under the effective control of the exporter, or to the foreign firm that is providing the replacement part or equipment. The destruction or return must be effected before, or promptly after, the replacement item is exported from the United States.
(D) A party reexporting replacements for defective or unacceptable U.S.-origin equipment must ensure that the commodities or software being replaced were shipped to their present location in accordance with U.S. law and continue to be legally used. See § 764.7 of the EAR for exports or reexports to the installed base in Libya.
(c)
(i) A description of the equipment replaced, repaired or serviced;
(ii) The type of repair or service;
(iii) Certification of the destruction or return of equipment replaced;
(iv) Location of the equipment replaced, repaired or serviced;
(v) The name and address of who received the items for replacement, repair or service;
(vi) Quantity of items shipped; and
(vii) Country of ultimate destination.
(2) Records maintained pursuant to this section may be requested at any time by an appropriate BIS official as set forth in § 762.7 of the EAR.
This License Exception authorizes exports and reexports for international nuclear safeguards; U.S. government agencies or personnel, and agencies of cooperating governments; and international inspections under the Chemical Weapons Convention.
(a)
(i) Commodities or software consigned to the IAEA at its headquarters in Vienna, Austria, or field offices in Toronto, Ontario, Canada or Tokyo, Japan for official international safeguards use. The IAEA is an international organization that establishes and administers safeguards designed to ensure that special nuclear materials and other related nuclear facilities, equipment, and material are not diverted from peaceful purposes to non-peaceful purposes.
(ii) Commodities or software consigned to the Euratom Safeguards Directorate in Luxembourg, Luxembourg for official international safeguards use. Euratom is an international organization of European countries with headquarters in Luxembourg. Euratom
(iii) Commodities consigned to IAEA or Euratom may be reexported to any country for IAEA or Euratom international safeguards use provided that IAEA or Euratom maintains control of or otherwise safeguards the commodities and returns the commodities to the locations described in paragraphs (a)(1)(i) and (a)(1)(ii) of this section when they become obsolete, are no longer required, or are replaced.
(iv) Commodity or software shipments may be made by commercial companies under direct contract with IAEA or Euratom, or by Department of Energy National Laboratories as directed by the Department of State or the Department of Energy.
(v) The monitoring functions of IAEA and Euratom are not subject to the restrictions on prohibited safeguarded nuclear activities described in § 744.2(a)(3) of the EAR.
(vi) When commodities or software originally consigned to IAEA or Euratom are no longer in IAEA or Euratom official safeguards use, such commodities may only be disposed of in accordance with the regulations in the EAR.
(2) The following items controlled for national security (NS) reasons under Export Control Classification Numbers (ECCNs) identified on the Commerce Control List may not be exported or reexported under this License Exception to destinations other than Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom: 1C001, 5A001.b.5, 6A001.a.1.b.1 object detection and location systems having a sound pressure level exceeding 210 dB (reference 1 µPa at 1 m) for equipment with an operating frequency in the band from 30 Hz to 2 kHz inclusive, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A001.a.2.e, 6A002.a.1.c, 6A008.l.3, 6B008, 8A001.b, 8A001.d, 8A002.o.3.b; and
(i) “Composite” structures or laminates controlled by 1A002.a, having an organic “matrix” and made from materials listed under 1C010.c or 1C010.d; and
(ii)-(iii) [Reserved]
(iv) Processing equipment controlled by 6A001.a.2.c and specially designed for real time application with towed acoustic hydrophone arrays; and
(v) Processing equipment, specially designed for real time application bottom or bay cable systems controlled; by 6A001.a.2.f; and
(vi) “Software”, as follows:
(A) [Reserved]
(B) Controlled by 5D001.a, specially designed for the “development” or “production” of equipment, functions or features controlled by 5A001.b.5; and
(C) Controlled by 6D001 for items controlled by 6A008.l.3 or 6B008; and
(D) Controlled by 6D003.a; and
(E) Controlled by 7D003.a or 7D003.b; and
(F) Controlled by 8D001, specially designed for the “development” or “production” of equipment controlled by 8A001.b, 8A001.d, or 8A002.o.3.b; and
(G) Controlled by 9D001, specially designed or modified for the “development” of equipment or “technology” controlled by 9A011, 9E003.a.1, or 9E003.a.3.a; and
(H) Controlled by 9D002, specially designed or modified for the “production” of equipment controlled by 9A011.
(3) No encryption items controlled for EI reasons under ECCNs 5A002, 5D002, or 5E002 may be exported under the provisions of this paragraph (a).
(4)
(b)
(2)
(ii)
(iii) (A)
(B)
(iv) (A)
(B)
(3)
(ii)
(c)
(i) Commodities and software consigned to the OPCW at its headquarters in The Hague for official international OPCW use for the monitoring and inspection functions set forth in the Convention, and technology relating to the maintenance, repair, and operation of such commodities and software. The OPCW must maintain effective control of such commodities, software and technology.
(ii) Controlled technology relating to the training of the OPCW inspectorate.
(iii) Controlled technology relating to a CWC inspection site, including technology released as a result of:
(A) Visual inspection of U.S.-origin equipment or facilities by foreign nationals of the inspection team;
(B) Oral communication of controlled technology to foreign nationals of the inspection team in the U.S. or abroad; and
(C) The application to situations abroad of personal knowledge or technical experience acquired in the U.S.
(2)
(i) [Reserved]
(ii) Inspection samples collected in the U.S. pursuant to the Convention; and
(iii) Commodities and software that are no longer in OPCW official use. Such items must be disposed of in accordance with the EAR.
(3)
(4)
(a)
(1) Items identified on the Commerce Control List as controlled for national security (NS) reasons under Export Control Classification Numbers (ECCNs) as follows for export or reexport to destinations other than Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom: 1C001, 5A001.b.5, 6A001.a.1.b.1 object detection and location systems having a sound pressure level exceeding 210 dB (reference 1 µPa at 1 m) for equipment with an operating frequency in the band from 30 Hz to 2 kHz inclusive, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A001.a.2.e, 6A002.a.1.c, 6A008.1.3, 6B008, 8A001.b, 8A001.d, 8A002.o.3.b; and
(i) “Composite” structures or laminates controlled by 1A002.a, having an organic “matrix” and made from materials listed under 1C010.c or 1C010.d; and
(ii)-(iii) [Reserved]
(iv) Processing equipment controlled by 6A001.a.2.c and specially designed for real time application with towed acoustic hydrophone arrays; and
(v) Processing equipment, specially designed for real time application bottom or bay cable systems controlled by 6A001.a.2.f;
(vi) “Software”, as follows:
(A) [Reserved]
(B) Controlled by 5D001.a, specially designed for the “development” or “production” of equipment, functions or features controlled by 5A001.b.5; and
(C) Controlled by 6D001 for items controlled by 6A008.l.3 or 6B008; and
(D) Controlled by 6D003.a; and
(E) Controlled by 7D003.a or 7D003.b; and
(F) Controlled by 8D001, specially designed for the “development” or “production” of equipment controlled by 8A001.b, 8A001.d, or 8A002.o.3.b;
(G) Controlled by 9D001, specially designed or modified for the “development” of equipment or “technology” controlled by 9A011, 9E003.a.1, or 9E003.a.3.a; and
(H) Controlled by 9D002,specially designed or modified for the “production” of equipment controlled by 9A011;
(vii) “Technology”, as follows:
(A) Controlled by 1E001 for items controlled by 1A002.a as described by paragraph (a)(1)(i) of this Supplement, or 1C001; and
(B) [Reserved]
(C) Controlled by 5E001.a for the “development” or “production” of digitally controlled radio receivers controlled by 5A001.b.5; or 5D001.a for “software” specially designed for the “development” or “production” of digitally controlled radio receivers controlled by 5A001.b.5; and
(D) Controlled by 6E001 for the “development” of equipment or “software” in 6A001.a.1.b.1, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A001.a.2.c, 6A001.a.2.e, 6A001.a.2.f, 6A002.a.1.c, 6A008.1.3, 6B008, 6D001 (specially designed for the “production” or “development” of equipment in 6A008.1.3 or 6B008), or 6D003.a as described in paragraph (a)(1) of this Supplement; and
(E) Controlled by 6E002 for the “production” of equipment controlled by 6A001.a.1.b.1, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A001.a.2.c, 6A001.a.2.e, 6A001.a.2.f, 6A002.a.1.c, 6A008.1.3, or 6B008, as described in paragraph (a)(1) of this Supplement; and
(F) Controlled by 8E001 for items controlled by 8A001.b, 8A002.o.3.b, or 8A001.d; and
(G) Controlled by 9E001 for the “development” of equipment or “software” in 9A011, 9D001 for the “development” of 9A011, or 9D002 for the “production” of 9A011; and
(H) Controlled by 9E002 for the “production” of equipment in 9A011; and
(I) Controlled by 9E003.a.1; and
(J) Controlled by 9E003.a.3.a;
(2) Items identified on the Commerce Control List as controlled for missile technology (MT), chemical and biological warfare (CB), or nuclear nonproliferation (NP) reasons;
(3) Regional stability items controlled under Export Control Classification Numbers (ECCNs) 6A002.a.1.c, 6E001 technology according to the General Technology Note for the “development” of equipment in 6A002.a.1.c, and 6E002 technology according to the General Technology Note for the “production” of equipment in 6A002.a.1.c; or
(4) Encryption items controlled for EI reasons as described in the Commerce Control List.
(b)
(1) Items identified on the Commerce Control List as controlled for national security (NS) reasons under Export Control Classification Numbers (ECCNs) as follows for export or reexport to destinations other than Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom: 1C001, 5A001.b.5, 6A001.a.1.b.1 object detection and location systems having a sound pressure level exceeding 210 dB (reference 1 µPa at 1 m) for equipment with an operating frequency in the band from 30 Hz to 2 kHz inclusive, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A001.a.2.e, 6A002.a.1.c, 6A008.1.3, 6B008, 8A001.b, 8A001.d, 8A002.o.3.b; and
(i) “Composite” structures or laminates controlled by 1A002.a, having an organic “matrix” and made from materials listed under 1C010.c or 1C010.d; and
(ii)-(iii) [Reserved]
(iv) Processing equipment controlled by 6A001.a.2.c and specially designed for real time application with towed acoustic hydrophone arrays; and
(v) Processing equipment, specially designed for real time application bottom or bay cable systems controlled by 6A001.a.2.f; and
(vi) “Software”, as follows:
(A) [Reserved]
(B) Controlled by 5D001.a, specially designed for the “development” or “production” of equipment, functions or features controlled by 5A001.b.5; and
(C) Controlled by 6D001 for items controlled by 6A008.l.3 or 6B008; and
(D) Controlled by 6D003.a; and
(E) Controlled by 7D003.a or 7D003.b; and
(F) Controlled by 8D001, specially designed for the “development” or “production” of equipment controlled by 8A001.b, 8A001.d, or 8A002.o.3.b;
(G) Controlled by 9D001, specially designed or modified for the “development” of equipment or “technology” controlled by 9A011, 9E003.a.1, or 9E003.a.3.a; and
(H) Controlled by 9D002, specially designed or modified for the “production” of equipment controlled by 9A011;
(vii) “Technology”, as follows:
(A) Controlled by 1E001 for items controlled by 1A002.a as described by paragraph (a)(1)(i) of this Supplement, or 1C001; and
(B) [Reserved]
(C) Controlled by 5E001.a for the “development” or “production” of digitally controlled radio receivers controlled by 5A001.b.5; or 5D001.a for “software” specially designed for the “development” or “production” of digitally controlled radio receivers controlled by 5A001.b.5; and
(D) Controlled by 6E001 for the “development” of equipment or “software” in 6A001.a.1.b.1, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A001.a.2.c, 6A001.a.2.e, 6A001.a.2.f, 6A002.a.1.c, 6A008.1.3, 6B008, 6D001 (specially designed for the “production” or “development” of equipment in 6A008.1.3 or 6B008), or 6D003.a as described in paragraph (a)(1) of this Supplement; and
(E) Controlled by 6E002 for the “production” of equipment controlled by 6A001.a.1.b.1, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, 6A001.a.2.c, 6A001.a.2.e, 6A001.a.2.f, 6A002.a.1.c, 6A008.l.3, or 6B008, as described in paragraph (a)(1) of this Supplement; and
(F) Controlled by 8E001 for items controlled by 8A001.b, 8A002.o.3.b, or 8A001.d; and
(G) Controlled by 9E001 for items controlled by 9D001; and
(H) Controlled by 9E002 for the production of 9A011; and
(I) Controlled by 9E003.a.1; and
(J) Controlled by 9E003.a.3.a;
(2) Items identified on the Commerce Control List as controlled for missile technology (MT), chemical and biological warfare (CB), or nuclear nonproliferation (NP) reasons;
(3) Regional stability items controlled under Export Control Classification Numbers (ECCNs) 6A002.a.1.c, 6E001 technology according to the General Technology Note for the “development” of equipment in 6A002.a.1.c, and 6E002 technology according to the General Technology Note for the “production” of equipment in 6A002.a.1.c; or
(4) Encryption items controlled for EI reasons as described in the Commerce Control List.
(a)
A gift parcel, within the context of this paragraph (a), does not include multiple parcels exported in a single shipment for delivery to individuals residing in a foreign country. Such multiple gift parcels, if subject to the General Prohibitions described in § 734.2(b) of the EAR, must be licensed by BIS. (See Supplement No. 2 to part 748 of the EAR for licensing of multiple gift parcels).
(2)
(A)
(
(
(B)
(
(
Example to paragraphs (a)(2)(i)(B)(
(
(ii)
(iii)
(B) For all destinations other than Cuba, not more than one gift parcel may be sent from the same donor to the same donee in any one calendar month.
(C) Parties seeking authorization to exceed these frequency limits due to compelling humanitarian concerns (
(iv)
(v)
(
(
(3)
(ii) Each parcel must have the notation “GIFT—Export License Not Required” written on the addressee side of the package and the symbol “GFT” written on any required customs declaration.
(b)
(2)
(3)
(i) A permanent staff maintained in the recipient country to monitor the receipt and distribution of the donations to the intended beneficiaries;
(ii) Periodic spot-checks in the recipient country by members of the exporter's staff; or
(iii) An agreement to utilize the services of a charitable organization that has a monitoring system in place.
(4)
(5)
(i) Commodities and software controlled for national security, chemical or biological weapons, and nuclear nonproliferation, missile technology or crime control reasons (see Supplement No. 1 to part 774 of the EAR);
(ii) Exports for large-scale projects of the kind associated with comprehensive economic growth, such as dams and hydroelectric plants; or
(iii) Exports to Cuba of medical items excluded by § 746.2(b)(1) of the EAR.
(6)
(7)
(i) The donor organization's identity and past experience as an exporter of goods to meet basic human needs;
(ii) Past and current countries to which the donative programs have been and are being directed, with particular reference to donative programs in embargoed destinations;
(iii) Types of projects and commodities involved in the donative programs;
(iv) Specific class(es) of beneficiaries of particular donated goods intended to be exported under this License Exception; and
(v) Information concerning the source of funding for the donative programs and the projected annual value of exports of humanitarian donations.
This license exception authorizes exports and reexports of operation technology and software; sales technology and software; software updates (bug fixes); “mass market” software subject to the General Software Note; and encryption source code (and corresponding object code) that would be considered publicly available under § 734.3(b)(3) of the EAR. Note that encryption software subject to the EAR is not subject to the General Software Note (see paragraph (d)(2) of this section).
(a)
(2)
(A) The operation software is the minimum necessary to operate equipment authorized for export or reexport; and
(B) The operation software is in object code.
(ii)
(b)
(2)
(A) The technology is a type customarily transmitted with a prospective or actual quotation, bid, or offer in accordance with established business practice; and
(B) Neither the export nor the reexport will disclose the detailed design, production, or manufacture technology, or the means of reconstruction, of either the quoted item or its product. The purpose of this limitation is to prevent disclosure of technology so detailed that the consignee could reduce the technology to production.
(ii)
Neither this section nor its use means that the U.S. Government intends, or is committed, to approve a license application for any commodity, plant, software, or technology that may be the subject of the transaction to which such quotation, bid, or offer relates. Exporters are advised to include in any quotations, bids, or offers, and in any contracts entered into pursuant to such quotations, bids, or offers, a provision relieving themselves of liability in the event that a license (when required) is not approved by the Bureau of Industry and Security.
(c)
(d)
(2)
(3)
(ii)
(A) Sold from stock at retail selling points, without restriction, by means of:
(
(
(
(B) Designed for installation by the user without further substantial support by the supplier.
(e)
(2)
(i) Export or reexport of any encryption software controlled under ECCN 5D002 that does not meet the requirements of paragraph (e)(1), even if the software incorporates or is specially designed to use other encryption software that meets the requirements of paragraph (e)(1) of this section; or
(ii) Any knowing export or reexport to a country listed in Country Group E:1 in Supplement No. 1 to part 740 of the EAR.
(3)
(e). Posting encryption source code and corresponding object code on the Internet (
(f)
(1) A description of the software or technology exported or reexported, including the ECCN, as identified on the CCL;
(2) A description of the equipment for which the software or technology is intended to be used, including the ECCN, as indentified on the CCL;
(3) The intended end-use of the software or technology;
(4) The name and address of the end-user;
(5) The quantity of software shipped; and
(6) The location of the equipment for which the software or technology is intended to be used, including the country of destination.
(a)
(b)
(1)
(2)
(3)
(4)
(c)
(1) Owned by the individuals (or by members of their immediate families) or by crew members of exporting carriers on the dates they depart from the United States;
(2) Intended for and necessary and appropriate for the use of the individuals or members of their immediate families traveling with them, or by the crew members of exporting carriers;
(3) Not intended for sale or other disposal; and
(4) Not exported under a bill of lading as cargo if exported by crew members.
(d)
(e)
(i) Not more than three shotguns may be taken on any one trip.
(ii) The shotguns and shotgun shells must be with the person's baggage but they may not be mailed.
(iii) The shotguns and shotgun shells must be for the person's exclusive use for legitimate hunting or lawful sporting purposes, scientific purposes, or personal protection, and not for resale or other transfer of ownership or control. Accordingly, except as provided in (e)(2) of this section, shotguns may not be exported permanently under this License Exception. All shotguns and unused shotgun shells must be returned to the United States. Note that since certain countries may require an Import Certificate or a U.S. export license before allowing the import of a shotgun, you should determine the import requirements of your country of destination in advance.
(2) A nonresident alien leaving the United States may export or reexport under this License Exception only such shotguns and shotgun shells as he or she brought into the United States under the provisions of Department of Treasury Regulations (27 CFR 178.115(d)).
(f)
(2) A person other than a U.S. citizen or permanent resident alien of the United States as defined by 8 U.S.C. 1101(a)(20) (except a national of a country listed in Country Group E:1 of Supplement No. 1 of this part who is not a U.S. citizen or permanent resident alien of the United States) may also use this license exception to export or reexport encryption commodities and software to any destination not in Country Group E:1 of Supplement No. 1 of this part.
(g)
Other travelers seeking to take more than 44 lbs of baggage would require a license from BIS pursuant to § 746.2 of the EAR.
This License Exception authorizes departure from the United States of foreign registry civil aircraft on temporary sojourn in the United States and of U.S. civil aircraft for temporary sojourn abroad; the export of equipment and spare parts for permanent
(a)
(i) No sale or transfer of operational control of the aircraft to nationals of a destination in Country Group E:1 (see Supplement No. 1 to this part) has occurred while in the United States;
(ii) The aircraft is not departing for the purpose of sale or transfer of operational control to nationals of a destination in Country Group E:1 (see Supplement No. 1 to this part); and
(iii) It does not carry from the United States any item for which an export license is required and has not been granted by the U.S. Government.
(2)
(A) The aircraft does not depart for the purpose of sale, lease or other disposition of operational control of the aircraft, or its equipment, parts, accessories, or components to a foreign country or any national thereof;
(B) The aircraft's U.S. registration will not be changed while abroad;
(C) The aircraft is not to be used in any foreign military activity while abroad; and
(D) The aircraft does not carry from the United States any item for which a license is required and has not been granted by the U.S. Government.
(ii) Any other operating civil aircraft of U.S. registry may depart from the United States under its own power for any destination, except to a destination in Country Group E:1 (see Supplement No. 1 to this part) (flights to these destinations require a license), provided that:
(A) The aircraft does not depart for the purpose of sale, lease or other disposition of operational control of the aircraft, or its equipment, parts, accessories, or components to a foreign country or any national thereof;
(B) The aircraft's U.S. registration will not be changed while abroad;
(C) The aircraft is not to be used in any foreign military activity while abroad;
(D) The aircraft does not carry from the United States any item for which an export license is required and has not been granted by the U.S. Government; and
(E) The aircraft will be operated while abroad by a U.S. licensed pilot, except that during domestic flights within a foreign country, the aircraft may be operated by a pilot currently licensed by that foreign country.
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii) No transfer of technology. No technology is transferred to a national of a destination in Country Group E:1 (see Supplement No. 1 to this part), except the minimum necessary in transit maintenance to perform flight line servicing required to depart safely.
(viii)
(ix)
(4)
(b)
(2)
(3)
(i) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements;
(ii) Medical and surgical supplies;
(iii) Food stores;
(iv) Slop chest articles;
(v) Saloon stores or supplies.
(c)
(i) Ordered by the person in command or the owner or agent of the vessel or plane to which they are consigned;
(ii) Intended to be used or consumed on board such vessel or plane and necessary for its proper operation;
(iii) In usual and reasonable kinds and quantities during times of extreme need; and
(iv) Shipped as cargo for which a Shipper's Export Declaration (SED) or Automated Export System (AES) record is filed in accordance with the requirements of the Foreign Trade Statistics Regulations (15 CFR part 30), except that an SED or AES record is not required when any of the commodities,
(2)
(i) Ordered by a U.S. or Canadian airline and consigned to its own installation or agent abroad;
(ii) Intended for maintenance, repair, or operation of aircraft registered in either the United States or Canada, and necessary for the aircraft's proper operation, except where such aircraft is located in, or owned, operated or controlled by, or leased or chartered to, Cuba or Country Group D:1 (excluding the PRC) (see Supplement No. 1 to part 740) or a national of such country;
(iii) In usual and reasonable kinds and quantities; and
(iv) Shipped as cargo for which a Shipper's Export Declaration (SED) or Automated Export System (AES) record is filed in accordance with the requirements of the Foreign Trade Statistics Regulations (15 CFR part 30), except that an SED or AES record is not required when any of these commodities is exported by U.S. airlines to their own installations and agents abroad for use in their aircraft operations.
(3)
Fuel and related commodities for shipment to vessels or planes of U.S. or Canadian registry as described in this License Exception must be shipped under the short supply License Exception SPR (see § 754.2(h) of the EAR);
(i) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements;
(ii) Medical and surgical supplies;
(iii) Food stores;
(iv) Slop chest articles;
(v) Saloon stores or supplies; and
(vi) Equipment and spare parts.
(d)
(i) No sale or transfer of operational control of the vessel to nationals of a destination in Country Group E:1 (
(ii) The vessel is not departing for the purpose of sale or transfer of operational control to nationals of a destination in Country Group E:1 (
(iii) The vessel does not carry from the United States any item for which a license is required and has not been granted by the U.S. Government.
(2)
(i) The vessel does not depart for the purpose of sale, lease, or transfer of operational control of the vessel, or its equipment, parts, accessories, or components, to a foreign country or any national thereof;
(ii) The vessel's U.S. flag will not be changed while abroad;
(iii) The vessel will not be used in any foreign military activity while abroad;
(iv) The vessel will not carry from the United States any item for which a license is required and has not been granted by the U.S. Government;
(v) Spares for the vessel are not located in a destination in Country Group E:1 (
(vi) Technology is not transferred to a national of a destination in Country Group E:1 (see Supplement No. 1 to this part), except the minimum necessary in-transit maintenance to perform servicing required to depart and enter a port safely; and
(vii) The vessel does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 (
(3)
(i)
(ii)
(iii)
(iv)
(4)
(i) The vessel does not depart for the purpose of sale, lease, or transfer of operational control of the vessel, or its equipment, parts, accessories, or components, to a foreign country or any national thereof;
(ii) The vessel's flag will not be changed while abroad;
(iii) The vessel will not be used in any foreign military activity while abroad;
(iv) The vessel will not carry any item for which a license is required and has not been granted by the U.S. Government;
(v) Spares for the vessel are not located in a destination in Country Group E:1 (
(vi) Technology is not transferred to a national of a destination in Country Group E:1 (
(vii) The vessel does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 (
(5) No vessels may be exported or reexported under this License Exception to a country in Country Group E:1.
This License Exception allows the following reexports:
(a)
(1) The reexport is made in accordance with the conditions of an export authorization from the government of the reexporting country;
(2) The commodities being reexported are not controlled for NP, CB, MT, SI, or CC reasons; and
(3) The reexport is destined to
(i) A country in Country Group B
(ii) A country in Country Group D:1 (National Security) (see Supplement No. 1 to part 740), other than Cambodia, Laos, or North Korea and the commodity being reexported is controlled for national security reasons.
(b)
(c) Reexports to a destination to which direct shipment from the United States is authorized under an unused outstanding license may be made under the terms of that license. Such reexports shall be recorded in the same manner as exports are recorded, regardless of whether the license is partially or wholly used for reexport purposes. (See part 762 of the EAR for recordkeeping requirements.)
(d) Reexports of any item from Canada that, at the time of reexport, may be exported directly from the United States to the new country of destination under any License Exception.
(e) Reexports (return) to the United States of any item. If the reexporting party requests written authorization because the government of the country from which the reexport will take place requires formal U.S. Government approval, such authorization will generally be given.
(f) Reexports from a foreign destination to Canada of any item if the item could be exported to Canada without a license.
(g) Reexports between Switzerland and Liechtenstein.
(h) Shipments of foreign-made products that incorporate U.S.-origin components may be accompanied by U.S.-origin controlled spare parts, provided that they do not exceed 10 percent of the value of the foreign-made product, subject to the restrictions in § 734.4 of the EAR.
(i) Reexports to Sudan of items controlled by ECCNs 2A994; 3A992.a; 5A991.f; 5A992; 6A991; 6A998; 7A994; 8A992.d, .e, .f, and .g; 9A990.a and .b; and 9A991.d and .e. In addition, items in these ECCNs are not counted as controlled U.S. content for purposes of determining license requirements for U.S. parts, components, and materials incorporated in foreign-made products. However, the export from the United States to any destination with knowledge that they will be reexported directly or indirectly, in whole or in part to Sudan is prohibited without a license.
(j) Reexports of items controlled by NP Column 1 (see Supplement No. 1 to part 774 of the EAR) to, among, and from countries described in Country Group A:4 (see Supplement No. 1 to part 740), except:
(1) Reexports from countries that are not identified in Country Group A:1 of items that are controlled for NS reasons to destinations in Country Group D:1; and
(2) Reexports to destinations in Country Group E:2 and Country Group D:2.
Subject to the eligibility criteria and restrictions described in paragraphs (a), (b) and (f) of this section, License Exception ENC is available for the export and reexport of: commodities and software controlled by ECCNs 5A002.a.1, .a.2, .a.5, .a.6, and .a.9, 5B002, and 5D002 that do not meet the “mass market” criteria of the Cryptography Note (Note 3) of Category 5, part 2 (“Information Security”) of the Commerce Control List (Supplement No. 1 to part 774 of the EAR); technology controlled by ECCN 5E002; and certain technical assistance as described in § 744.9 of the EAR. The initial export or reexport of an encryption commodity or software under paragraphs (b)(2) or (b)(3) of this section is subject to a 30 day waiting period, as described in paragraph (d)(2) of this section. In addition, persons exporting or reexporting under paragraphs (a), (b)(2) or (b)(3) of this section must file the semi-annual reports required by paragraph (e) of this section. Review request procedures for encryption items eligible for License Exception ENC are described in paragraph (d) of this section (
(a)
(1)
(i) An individual who is not acting on behalf of any foreign government; or
(ii) A commercial firm (including its subsidiary and parent firms, and other subsidiaries of the same parent) that is not wholly owned by, or otherwise controlled by or acting on behalf of, any foreign government.
(2)
(3)
(b)
(i) To any “U.S. subsidiary”; and
(ii) By a U.S. company and its subsidiaries to foreign nationals who are employees, contractors or interns of a U.S. company or its subsidiaries if the items are for internal company use, including the development of new products.
(iii)
(2)
(i)
(ii)
(iii) The encryption commodities, software and components eligible for export or reexport under this paragraph (b)(2) (see paragraph (b)(3) of this section for commodities, software and components not listed in this paragraph (b)(2)(iii)) are:
(A) Network infrastructure commodities and software, and parts and components thereof (including commodities and software necessary to activate or enable cryptographic functionality in network infrastructure products) providing secure Wide Area Network (WAN), Metropolitan Area Network (MAN), Virtual Private Network (VPN), satellite, cellular or trunked communications meeting any of the following with key lengths exceeding 64-bits for symmetric algorithms:
(
(
(
(
(
(
(
(B) Encryption source code that would not be eligible for export or reexport under License Exception TSU because it is not publicly available as that term is used in § 740.13(e)(1) of the EAR.
(C) Encryption commodities or software that do not provide an “open cryptographic interface”, but that have:
(
(
(
(D) “Cryptanalytic items”; or
(E) Encryption commodities and software that provide functions necessary for quantum cryptography; or
(F) Encryption commodities and software that have been modified or customized for computers controlled by ECCN 4A003.
(3)
(i) The commodities or software must
(A) Provide an “open cryptographic interface”; or
(B) Be listed in paragraph (b)(2) of this section.
(ii)
(B)
(4)
(A) Encryption commodities and software (including key management products) with key lengths not exceeding 64 bits for symmetric algorithms, 1024 bits for asymmetric key exchange algorithms, and 160 bits for elliptic curve algorithms;
(B) Encryption source code that would not be considered publicly available for export or reexport under License Exception TSU, provided that a copy of your source code is included in the review request to BIS and the ENC Encryption Request Coordinator.
(ii)
(A) Commodities and software that would not otherwise be controlled under Category 5 (telecommunications and “information security”) of the Commerce Control List, but that are controlled under ECCN 5A002 or 5D002 only because they incorporate components or software that provide short-range wireless encryption functions (
(B) Foreign products developed with or incorporating U.S.-origin encryption source code, components or toolkits (or otherwise designed to operate with U.S. products,
(c)
(d)
(1)
(2)
(3)
(i) The exporter or reexporter certifies to BIS and the ENC Encryption Request Coordinator that no change to the encryption functionality has been made other than to upgrade the key length for confidentiality or key exchange algorithms;
(ii) The certification includes the original authorization number issued by BIS and the date of issuance;
(iii) The certification is received by BIS and the ENC Encryption Request Coordinator before the export or reexport of the upgraded product; and
(iv) The certification is e-mailed to
(e)
(2)
(i) For items exported (or reexported from Canada) to a distributor or other reseller, including subsidiaries of U.S. firms, the name and address of the distributor or reseller, the item and the quantity exported or reexported and, if collected by the exporter as part of the distribution process, the end-user's name and address;
(ii) For items exported (or reexported from Canada) to individual consumers through direct sale (provided the transaction is not exempted from reporting under paragraph (e)(4)(iii) or (e)(4)(iv) of this section), the name and address of the recipient, the item, and the quantity exported;
(iii) For exports of ECCN 5E002 items to be used for technical assistance that are not released by § 744.9 of the EAR, the name and address of the end-user; and
(iv) For each item, the authorization number and the name of the item(s) exported (or reexported from Canada).
(3)
(4)
(i) Any encryption item exported or reexported under paragraph (a)(1) or (b)(1) of this section;
(ii) Encryption commodities or software with a symmetric key length not exceeding 64 bits;
(iii) Encryption commodities and software authorized under paragraph (b)(3) of this section, exported (or reexported from Canada) to individual consumers;
(iv) Encryption items exported (or reexported from Canada) via free and anonymous download;
(v) Encryption items from or to a U.S. bank, financial institution or its subsidiaries, affiliates, customers or contractors for banking or financial operations;
(vi) Items that incorporate components limited to providing short-range wireless encryption functions;
(vii) General purpose operating systems, or desktop applications (
(viii) Client Internet appliance and client wireless LAN cards; or
(ix) Foreign products developed by bundling or compiling of source code.
(5)
(i) Department of Commerce, Bureau of Industry and Security, Office of National Security and Technology Transfer Controls, 14th Street and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230, Attn: Encryption Reports, and
(ii) Attn: ENC Encryption Request Coordinator, 9800 Savage Road, Suite 6940, Ft. Meade, MD 20755-6000.
(f)
(1) Any export or reexport of any “cryptanalytic item” to any “government end-user” (as that definition is applied to encryption items); or
(2) Any export or reexport of any “open cryptographic interface” item to any end-user not located in or headquartered in Canada or in countries listed in Supplement No. 3 part 740 of the EAR; or
(3) Any export or reexport to, or provision of any service in any country listed in Country Group E:1 in Supplement No. 1 to part 740 of the EAR; or
(4) Furnishing source code or technology to any national of a country listed in Country Group E:1.
(a)
(1) The commodity meets the definition of “agricultural commodities” in part 772 of the EAR;
(2) The commodity is EAR99. You must have an official commodity classification of EAR99 from BIS for fertilizers, western red cedar and live horses before you submit a notification under this license exception. See § 748.3 of the EAR for information on how to submit a commodity classification request;
(3) The export or reexport is made pursuant to a written contract, except for donations and commercial samples which are not subject to this contract requirement;
(4) The export or reexport is made within 12 months of the signing of the contract or within 12 months of notification that no objections were raised (if no contract is required). In the case of multiple partial shipments, all such shipments must be made within the 12 months of the signing of the contract or within 12 months of notification that no objections were raised (if no contract is required); and
(5) You notify BIS prior to exporting or reexporting according to the procedures set forth in paragraph (c) of this section. If you intend to engage in multiple shipments during the one-year period after the signing of the contract, you need only notify BIS prior to the first shipment.
(b)
(2) No export or reexport to or for use in biological, chemical, nuclear warfare or missile proliferation activities may be made under License Exception AGR (see part 744 of the EAR).
(3) No U.S.-owned or controlled foreign firm may export from abroad to Cuba a foreign produced agricultural commodity containing more than 10% U.S.-origin content. Such U.S.-owned or controlled foreign firms require a specific license from BIS as well as the Department of the Treasury's Office of Foreign Assets Control (OFAC). Transactions not subject to the EAR (under 10% U.S.-origin content) require a license from OFAC.
(c)
(2)
(3)
(4)
(5)
(d)
(2) Donations of food items to non-governmental organizations (NGOs) and individuals in Cuba may also be eligible for License Exception GFT. See § 740.12 for eligibility requirements of gift parcels and humanitarian donations under License Exception GFT.
(a)
(b)
(c)
(d)
(e)
(f)
50 U.S.C. app. 2401
In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C.
(a)
(b)
(1)
(2)
(c)
(d)
(e)
(f)
(a)
(1) If CB Column 1 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations, including Canada, for the following:
(i) Human pathogens, zoonoses, toxins, animal pathogens, genetically modified microorganisms and plant pathogens identified in ECCNs 1C351, 1C352, 1C353, 1C354 and 1C360; and
(ii) Technology (ECCNs 1E001 and 1E351) for the production and/or disposal of microbiological commodities described in paragraph (a)(1)(i) of this section.
(2) If CB Column 2 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations except countries in Country Group A:3 (see Supplement No. 1 to part 740 of the EAR) (Australia Group members) for the following:
(i) Chemicals identified in ECCN 1C350 (precursor and intermediate chemicals used in the production of chemical warfare agents).
(A) This license requirement includes chemical mixtures identified in ECCN 1C350.b, .c, or .d, except as specified in License Requirements Note 2 to that ECCN.
(B) This licensing requirement does not include chemical compounds created with any chemicals identified in ECCN 1C350, unless those compounds are also identified in ECCN 1C350.
(C) This licensing requirement does not apply to any of the following medical, analytical, diagnostic, and food testing kits that consist of pre-packaged materials of defined composition that are specifically developed, packaged, and marketed for diagnostic, analytical, or public health purposes:
(
(
(ii) Software (ECCN 1D390) for process control that is specifically configured to control or initiate production of the chemical precursors controlled by ECCN 1C350.
(iii) Technology (ECCN 1E001) for the development or production of chemical detection systems and dedicated detectors therefore, controlled by ECCN 1A004.c, that also have the technical characteristics described in ECCN 2B351.a.
(iv) Technology (ECCNs 1E001 and 1E350) involving the following for facilities designed or intended to produce chemicals described in 1C350:
(A) Overall plant design;
(B) Design, specification, or procurement of equipment;
(C) Supervision of construction, installation, or operation of complete plant or components thereof;
(D) Training of personnel; or
(E) Consultation on specific problems involving such facilities.
(v) Technology (ECCNs 1E001 and 1E351) for the production and/or disposal of chemical precursors described in ECCN 1C350;
(vi) Equipment and materials identified in ECCN 2B350 or 2B351 on the CCL, chemical detection systems controlled by 1A004.c for detecting chemical warfare agents and having the characteristics of toxic gas monitoring systems described in 2B351.a, and valves controlled by ECCN 2A226 or ECCN 2A292 having the characteristics of those described in 2B350.g, which can be used in the production of chemical weapons precursors or chemical warfare agents.
(vii) Equipment and materials identified in ECCN 2B352, which can be used in the production of biological agents.
(viii) Technology identified in ECCN 2E001, 2E002, or 2E301 for:
(A) The development, production, or use of items controlled by ECCN 2B350, 2B351, or 2B352; or
(B) The development or production of valves controlled by ECCN 2A226 or 2A292 having the characteristics of those described in ECCN 2B350.g.
(ix) Technology identified in ECCN 2E201 or 2E290 for the use of valves controlled by ECCN 2A226 or 2A292 having the characteristics of those described in 2B350.g.
(3) If CB Column 3 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to Country Group D:3 (
(4) A license is required, to States not Party to the CWC (destinations not listed in Supplement No. 2 to Part 745 of the EAR), for mixtures controlled by 1C395.a and test kits controlled by 1C395.b.
(b)
(2) The following factors are among those that will be considered to determine what action should be taken on license applications for the items described in paragraph (a) of this section:
(i) The specific nature of the end-use, including the appropriateness of the stated end-use;
(ii) The significance of the export and reexport in terms of its potential contribution to the design, development, production, stockpiling, or use of chemical or biological weapons;
(iii) The nonproliferation credentials of the importing country, including the importing country's chemical and biological capabilities and objectives;
(iv) The extent and effectiveness of the export control system in the importing country and in any intermediary country through which the items being exported or reexported will transit or be transshipped en route to the importing country;
(v) The risk that the items will be diverted for use in a chemical weapons or biological weapons program, or for chemical weapons or biological weapons terrorism purposes;
(vi) The reliability of the parties to the transaction, including whether:
(A) An export or reexport license application involving any such parties has previously been denied;
(B) Any such parties have been engaged in clandestine or illegal procurement activities;
(C) The end-user is capable of securely handling and storing the items to be exported or reexported;
(vii) Relevant information about proliferation and terrorism activities, including activities involving the design, development, production, stockpiling,
(viii) The types of assurances or guarantees against the design, development, production, stockpiling, or use of chemical or biological weapons that are given in a particular case, including any relevant assurances provided by the importing country or the end-user;
(ix) The applicability of other multilateral export control or nonproliferation agreements (
(x) The existence of a pre-existing contract.
(3) BIS will review license applications in accordance with the licensing policy described in paragraph (b)(1) of this section for items not described in paragraph (a) of this section that:
(i) Require a license for reasons other than short supply;
(ii) Could be destined for the design, development, production, stockpiling, or use of chemical or biological weapons, or for a facility engaged in such activities.
(c)
(d)
(e)
(2) Unique application and submission requirements for chemicals, medicinals, and pharmaceuticals are described in paragraph (a) of Supplement No. 2 to part 748 of the EAR.
(a)
(1) If NP Column 1 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations except Nuclear Suppliers Group (NSG) member countries (Country Group A:4) (see Supplement No. 1 to part 740 of the EAR).
(2) If NP Column 2 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the applicable ECCN, a license is required to Country Group D:2 (see Supplement No. 1 to part 740 of the EAR) except India.
(3) Other nuclear-related license requirements are described in §§ 744.2 and 744.5 of the EAR.
(b)
(i) Whether the items to be transferred are appropriate for the stated end-use and whether that stated end-use is appropriate for the end-user;
(ii) The significance for nuclear purposes of the particular item;
(iii) Whether the items to be exported or reexported are to be used in research on, or for the development, design, manufacture, construction, operation, or maintenance of, any reprocessing or enrichment facility;
(iv) The types of assurances or guarantees given against use for nuclear explosive purposes or proliferation in the particular case;
(v) Whether any party to the transaction has been engaged in clandestine or illegal procurement activities;
(vi) Whether an application for a license to export or reexport to the end-user has previously been denied, or whether the end-user has previously diverted items received under a general license, a License Exception, or a validated license to unauthorized activities;
(vii) Whether the export or reexport would present an unacceptable risk of diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2(a) of the EAR; and
(viii) The nonproliferation credentials of the importing country, based on consideration of the following factors:
(A) Whether the importing country is a party to the Nuclear Non-Proliferation Treaty (NPT) or to the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) or to a similar international legally-binding nuclear nonproliferation agreement;
(B) Whether the importing country has all of its nuclear activities, facilities, or installations that are operational, being designed, or under construction under International Atomic Energy Agency (IAEA) safeguards or equivalent full scope safeguards;
(C) Whether there is an agreement for cooperation in the civil uses of atomic energy between the U.S. and the importing country;
(D) Whether the actions, statements, and policies of the government of the importing country are in support of nuclear nonproliferation and whether that government is in compliance with its international obligations in the field of non-proliferation;
(E) The degree to which the government of the importing country cooperates in non-proliferation policy generally (e.g., willingness to consult on international nonproliferation issues); and
(F) Information on the importing country's nuclear intentions and activities.
(2) In addition, BIS will review license applications in accordance with the licensing policy described in paragraph (b) of this section for items
(i) Require a license on the CCL for reasons other than “short supply;” and
(ii) Are intended for a nuclear related end-use or end-user.
(3) For the People's Republic of China, the general licensing policy for applications for those items that would make a direct and significant contribution to nuclear weapons and their delivery systems is extended review or denial.
(c)
(d)
(a)
(b)
(2) Except for those countries described in paragraphs (b)(5) through (b)(7) of this section, the general policy for exports and reexports of items to Country Group D:1 (see Supplement No. 1 to part 740 of the EAR) is to approve applications when BIS determines, on a case-by-case basis, that the items are for civilian use or would otherwise not make a significant contribution to the military potential of the country of destination that would prove detrimental to the national security of the United States.
(3) To permit such policy judgments to be made, each application is reviewed in the light of prevailing policies with full consideration of all aspects of the proposed transaction. The review generally includes:
(i) An analysis of the kinds and quantities of items to be shipped;
(ii) Their military or civilian uses;
(iii) The unrestricted availability abroad of the same or comparable items;
(iv) The country of destination;
(v) The ultimate end-users in the country of destination; and
(vi) The intended end-use.
(4) Although each proposed transaction is considered individually, items described in Advisory Notes on the Commerce Control List are more likely to be approved than others.
(5) In recognition of efforts made to adopt safeguard measures for exports and reexports, Kazakhstan, Mongolia, and Russia are accorded enhanced favorable consideration licensing treatment.
(6) The general policy for Cambodia and Laos is to approve license applications when BIS determines, on a case-by-case basis, that the items are for an authorized use in Cambodia or Laos and are not likely to be diverted to another country or use contrary to the national security or foreign policy controls of the United States.
(7) For the People's Republic of China, the general licensing policy is to approve applications, except that those items that would make a direct and significant contribution to electronic and anti-submarine warfare, intelligence gathering, power projection, and air superiority receive extended review or denial. Each application will be considered individually. Items may be approved even though they may contribute to Chinese military development or the end-user or end-use is military. Note that the Advisory Notes in the CCL headed “Note for the People's Republic of China” provide guidance on equipment likely to be approved more rapidly for China.
(c)
(d) [Reserved]
(a)
(2) The term “missiles” is defined as rocket systems (including ballistic missile systems, space launch vehicles, and sounding rockets) and unmanned air vehicle systems (including cruise missile systems, target drones, and reconnaissance drones) capable of delivering at least 500 kilograms (kg) payload to a range of a least 300 kilometers (km). See § 746.3 of the EAR for definition of a “ballistic missile” to be exported or reexported to Iraq.
(b)
(2) The following factors are among those that will be considered in reviewing individual applications.
(i) The specific nature of the end-use;
(ii) The significance of the export and reexport in terms of its contribution to the design, development, production, or use of missiles;
(iii) The capabilities and objectives of the missile and space programs of the recipient country;
(iv) The nonproliferation credentials of the importing country;
(v) The types of assurances or guarantees against design, development, production, or use of missiles that are given in a particular case; and
(vi) The existence of a preexisting contract.
(3)
(i) Require a validated license for reasons other than short supply; and
(ii) Could be destined for the design, development, production, or use of missiles, or for a facility engaged in such activities.
(c)
(1) License applications for batch mixers specified in ECCN 1B117 involving contracts that were entered into prior to January 19, 1990, will be considered on a case-by-case basis.
(2) License applications subject to ECCN 1B115.b or .c that involve a contract entered into prior to March 7, 1991, will be considered on a case-by-case basis.
(3) Applicants who wish that a pre-existing contract be considered in reviewing their license applications must submit documentation sufficient to establish the existence of a contract.
(d)
(a)
(1) As indicated in the CCL and in RS Column 1 of the Country Chart (see Supplement No. 1 to part 738 of the EAR), a license is required to all destinations, except Canada, for items described on the CCL under ECCNs 6A002.a.1, a.2, a.3, .c, or .e; 6A003.b.3 and b.4; 6A008.j.1; 6A998.b; 6D001 (only “software” for the “development” or “production” of items in 6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4; or 6A008.j.1); 6D002 (only “software” for the “use” of items in 6A002.a.1, a.2, a.3, .c; 6A003.b.3 and .b.4; or 6A008.j.1); 6D991 (only “software” for the “development,” “production,” or “use” of equipment controlled by 6A002.e or 6A998.b); 6E001 (only “technology” for “development” of items in 6A002.a.1, a.2, a.3, and .c or .e, 6A003.b.3 and b.4, or 6A008.j.1); 6E002 (only “technology” for “production” of items in 6A002.a.1, a.2, a.3, .c, or .e, 6A003.b.3 or b.4, or 6A008.j.1); 6E991 (only “technology” for the “development,” “production,” or “use” of equipment controlled by 6A998.b); 7D001 (only “software” for “development” or “production” of items in 7A001, 7A002, or 7A003); 7E001 (only “technology” for the “development” of inertial navigation systems, inertial equipment, and specially designed components therefor for civil aircraft); 7E002 (only “technology” for the “production” of inertial navigation systems, inertial equipment, and specially designed components therefor for civil aircraft); 7E101 (only “technology” for the “use” of inertial navigation systems, inertial equipment, and specially designed components for civil aircraft).
(2) As indicated in the CCL and in RS Column 2 of the Country Chart (see Supplement No. 1 to part 738 of the EAR), a license is required to any destination except Australia, Japan, New Zealand, and countries in the North Atlantic Treaty Organization (NATO) for items described on the CCL under ECCNs 0A918, 0E918, 2A983, 2D983, 2E983, 8A918, and for military vehicles and certain commodities (specially designed) used to manufacture military equipment, described on the CCL in ECCNs 0A018.c, 1B018.a, 2B018, and 9A018.a and .b.
(3) As indicated on the CCL, a license is required for the export or reexport to Iraq or transfer within Iraq of the following items controlled for RS reasons on the CCL: 0B999, 0D999, 1B999, 1C992, 1C995, 1C997, 1C999 and 6A992. The Commerce Country Chart is not designed to determine RS licensing requirements for these ECCNs.
(b)
(2) Applications to export and reexport commodities described in paragraph (a)(2) of this section will generally be considered favorably on a case-by-case basis unless there is evidence that the export or reexport
(3) For terrorist-designated countries, the applicable licensing policies are found in parts 742 and 746 of the EAR.
(4) See § 746.3(b) of the EAR for the applicable licensing policies for items controlled for RS reasons to Iraq.
(c)
(d)
(a)
(1) Crime control and detection instruments and equipment and related technology and software identified in the appropriate ECCNs on the CCL under CC Column 1 in the Country Chart column of the “License Requirements” section. A license is required to countries listed in CC Column 1 (Supplement No. 1 to part 738 of the EAR). Items affected by this requirement are identified on the CCL under the following ECCNs: 0A978, 0A979, 0A984, 0A987, 0E984, 1A984, 1A985, 3A980, 3A981, 3D980, 3E980, 4A003 (for fingerprint computers only), 4A980, 4D001 (for fingerprint computers only), 4D980, 4E001 (for fingerprint computers only), 4E980, 6A002 (for police-model infrared viewers only), 6E001 (for police-model infrared viewers only), 6E002 (for police-model infrared viewers only), and 9A980.
(2) Shotguns with a barrel length greater than or equal to 24 inches, identified in ECCN 0A984 on the CCL under CC Column 2 in the Country Chart column of the “License Requirements” section regardless of end-user to countries listed in CC Column 2 (Supplement No. 1 part 738 of the EAR).
(3) Shotguns with barrel length greater than or equal to 24 inches, identified in ECCN 0A984 on the CCL under CC Column 3 in the Country Chart column of the “License Requirements” section only if for sale or resale to police or law enforcement entities in countries listed in CC Column 3 (Supplement No. 1 part 738 of the EAR).
(4) Certain crime control items require a license to all destinations, except Canada. These items are identified under ECCNs 0A982, 0A985, and 0E982. Controls for these items appear in each ECCN; a column specific to these controls does not appear in the Country Chart (Supplement No. 1 to part 738 of the EAR).
(5) See § 742.11 of the EAR for further information on items controlled under ECCN 0A983, which require a license to all destinations, including Canada.
(b)
(c)
(d)
(a)
(2) If AT column 1 or AT column 2 of the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required for
(3) The Secretary of State has designated Iran as a country whose Government has repeatedly provided support for acts of international terrorism.
(4) In support of U.S. foreign policy on terrorism-supporting countries, BIS maintains two types of anti-terrorism controls on the export and reexport of items described in Supplement 2 to part 742.
(i) Items described in paragraphs (c)(1) through (c)(5) of Supplement No. 2 to part 742 are controlled under section 6(j) of the Export Administration Act, as amended (EAA), if destined to military, police, intelligence or other sensitive end-users.
(ii) Items described in paragraphs (c)(1) through (c)(5) of Supplement No. 2 to part 742 destined to non-sensitive end-users, as well as items described in paragraphs (c)(6) through (c)(44) to all end-users, are controlled to Iran under section 6(a) of the EAA. (See Supplement No. 2 to part 742 for more information on items controlled under sections 6(a) and 6(j) of the EAA and § 750.6 of the EAR for procedures for processing license applications for items controlled under EAA section 6(j).)
(5) Exports and certain reexports to Iran are subject to a comprehensive embargo administered by the Department of the Treasury's Office of Foreign Assets Control (OFAC). If you wish to export or reexport to Iran, the Government of Iran or any entity owned or controlled by that Government, you should review part 746 of the EAR and consult with OFAC. Please note that authorization from OFAC constitutes authorization under the EAR and no separate license or authorization from BIS is required.
(b)
(2) License applications for items controlled under section 6(a) of the EAA will also be reviewed to determine whether requirements of section 6(j) apply. Whenever the Secretary of State determines that an export or reexport could make a significant contribution to the military potential of Iran, including its military logistics capability, or could enhance Iran's ability to support acts of international terrorism, the Secretaries of State and Commerce will notify the Congress 30 days prior to the issuance of a license.
(c)
(d)
(a)
(2) The Secretary of State has designated Syria as a country whose government has repeatedly provided support for acts of international terrorism.
(3) In support of U.S. foreign policy against terrorism, BIS maintains two types of anti-terrorism controls on the export and reexport to Syria of items described in Supplement No. 2 to part 742.
(i) Items described in paragraphs (c)(1) through (c)(5) of Supplement No. 2 to part 742, if destined to military, police, intelligence or other end-users in Syria, are controlled under section 6(j) of the Export Administration Act, as amended (EAA).
(ii) Items listed in paragraphs (c)(1) through (c)(5) of Supplement No. 2 to part 742 destined to other end-users in Syria, as well as items to all end-users listed in (c)(6) through (c)(8), (c)(10) through (c)(14), (c)(16) through (c)(19), and (c)(22) through (c)(44) of Supplement No. 2 to part 742, are controlled to Syria under section 6(a) of the EAA.
(b)
(i) Items that are controlled for chemical and biological weapons proliferation reasons to any destination. These are items that contain CB Column 1, CB Column 2, or CB Column 3 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(ii) Military-related items controlled for national security reasons to any destination. These are items that contain NS Column 1 in the Country Chart column of the “License Requirements” section in an ECCN on the CCL
(iii) Items that are controlled for missile proliferation reasons to any destination. These are items that have an MT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(iv) All aircraft (powered and unpowered), helicopters, engines, and related spare parts and components, except that parts and components intended to ensure the safety of civil aviation and the safe operation of commercial passenger aircraft will be reviewed on a case-by-case basis, with a presumption of approval. These are items controlled to any destination for national security and missile technology reasons and items controlled to Syria for anti-terrorism purposes. Such items contain an NS Column 1, NS Column 2, MT Column 1, or AT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL. Note that, consistent with the general rule that applies to computing U.S. parts and components content incorporated into foreign made products, all aircraft-related items that require a license to Syria will be included as controlled U.S. content, except for ECCNs 6A998, 7A994, and 9A991.d, for purposes of such licensing requirements.
(v) Cryptographic, cryptoanalytic, and cryptologic items controlled to any destination for national security reasons. Such items contain an AT Column 1 and an NS Column 1 or NS Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(vi) Explosives detection equipment controlled under ECCN 2A983.
(vii) “Software” (ECCN 2D983) specially designed or modified for the “development”, “production” or “use”
(viii) “Technology” (ECCN 2E983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
(ix) Commercial charges and devices controlled under ECCN 1C992.
(x) Ammonium nitrate, including certain fertilizers containing ammonium nitrate, controlled under ECCN 1C997.
(xi) Technology for the production of Chemical Weapons Convention (CWC) Schedule 2 and 3 chemicals controlled under ECCN 1E355.
(2) Applications for export and reexport to Syria of all other items described in paragraph (a) of this section, and not described by paragraph (b)(1) of this section, will generally be denied if the export or reexport is destined to a military end-user or for military end-use. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
(3) Notwithstanding the provisions of paragraphs (b)(1) and (b)(2), of this section, applications for Syria will be considered on a case-by-case basis if:
(i) The transaction involves the reexport to Syria of items where Syria was not the intended ultimate destination at the time of original export from the United States, provided that the exports from the U.S. occurred prior to the applicable contract sanctity date (or, where the contract sanctity date is December 16, 1986, prior to June 18, 1987).
(ii) The U.S. content of foreign-produced commodities is 20% or less by value; or
(iii) The commodities are medical items.
Applicants who wish any of the factors described in paragraph (b) of this section to be considered in reviewing their license applications must submit adequate documentation demonstrating the value of the U.S. content, the specifications and medical use of the equipment, or the date of export from the United States.
(4) License applications for items reviewed under 6(a) controls will also be reviewed to determine the applicability of 6(j) controls to the transaction. When it is determined that an export or reexport could make a significant contribution to the military potential of Syria, including its military logistics capability, or could enhance Syria's ability to support acts of international terrorism, the Secretaries of State and Commerce will notify the Congress 30 days prior to issuance of a license.
(c)
(d)
(e) General Order No. 2, Supplement No. 1 to part 736 of the EAR, sets forth special controls for exports and reexports to Syria. General Order No. 2 supersedes the provisions of paragraphs (a) through (d) of this section.
(a)
(2) If AT column 1 or AT column 2 of the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required for
(3) The Secretary of State has designated Sudan as a country whose government has repeatedly provided support for acts of international terrorism.
(4) In support of U.S. foreign policy against terrorism, BIS maintains anti-terrorism controls on the export and reexport to Sudan of items described in Supplement No. 2 to part 742.
(i) Items described in paragraph (c)(1) through (c)(5) of Supplement No. 2 to part 742 if destined to military, police, intelligence or other sensitive end-users in Sudan are controlled under section 6(j) of the Export Administration Act, as amended (EAA).
(ii) Items listed in paragraphs (c)(1) through (c)(5) of Supplement No. 2 to part 742 destined to other end-users in Sudan, as well as items to all end-users listed in (c)(6) through (c)(14) and (c)(16) through (c)(44) of Supplement No. 2 to part 742 are controlled to Sudan under section 6(a) of the EAA.
(b)
(i) Items that are controlled for chemical and biological weapons proliferation reasons to any destination. These are items that contain CB Column 1, CB Column 2, or CB Column 3 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(ii) Military-related items controlled for national security reasons to any destination. These are items that contain NS Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL and is controlled by equipment or material entries ending in the number “18.”
(iii) Items that are controlled for missile proliferation reasons to any destination. These are items that contain a MT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(iv) All aircraft (powered and unpowered), helicopters, engines, and related spare parts and components. These are items controlled to any destination for national security reasons and items controlled to Sudan for anti-terrorism reasons. Such items contain an NS Column 1, NS Column 2, or AT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL. Note that, consistent with the general rule that applies to computing U.S. parts and components content incorporated in foreign made products, all aircraft-related items that require a license to Sudan will be included as controlled US content for purposes of such license requirements.
(v) Cryptographic, cryptoanalytic, and cryptologic items controlled to any destination. These are items that contain an NS Column 1, NS Column 2, AT Column 1 or AT Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(vi) Explosives detection equipment controlled under ECCN 2A983.
(vii) “Software” (ECCN 2D983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
(viii) “Technology” (ECCN 2E983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
(ix) Commercial charges and devices controlled under ECCN 1C992.
(x) Technology for the production of Chemical Weapons Convention (CWC) Schedule 2 and 3 chemicals controlled under ECCN 1E355.
(xi) Ammonium nitrate, including certain fertilizers containing ammonium nitrate, controlled under ECCN 1C997.
(2) Applications for the export and reexport of all other items described in paragraph (a) of this section, and not described in paragraph (b)(1) of this
(3) Notwithstanding the provisions of paragraphs (b)(1) and (b)(2) of this section, applications for Sudan will be considered on a case-by-case basis if:
(i) The transaction involves the reexport to Sudan of items where Sudan was not the intended ultimate destination at the time of original export from the United States, provided that the exports from the U.S. occurred prior to the applicable contract sanctity date.
(ii) The U.S. content of foreign-produced commodities is 20% or less by value; or
(iii) The commodities are medical items.
Applicants who wish any of the factors described in paragraph (b)(4) of this section to be considered in reviewing their license applications must submit adequate documentation demonstrating the value of the U.S. content, the specifications and medical use of the equipment, or the date of export from the United States.
(4) License applications for items reviewed under 6(a) controls will also be reviewed to determine the applicability of 6(j) controls to the transaction. When it is determined that an export or reexport could make a significant contribution to the military potential of Sudan, including its military logistics capability, or could enhance Sudan's ability to support acts of international terrorism, the appropriate committees of the Congress will be notified 30 days before issuance of a license to export or reexport such items.
(c)
(d)
(a)
(b)
(c)
(d)
(a)
(2) “Communications intercepting devices” are electronic, mechanical, or other devices that can be used for interception of wire, oral, or electronic communications if their design renders them primarily useful for surreptitious listening even though they may also have innocent uses. A device is not restricted merely because it is small or may be adapted to wiretapping or eavesdropping. Some examples of devices to which these restrictions apply are: the martini olive transmitter; the infinity transmitter; the spike mike; and the disguised microphone appearing as a wristwatch, cufflink, or cigarette pack; etc. The restrictions do not apply to devices such as the parabolic microphone or other directional microphones ordinarily used by broadcasters at sports events, since these devices are not primarily useful for surreptitious listening.
(b)
(i) A provider of wire or electronic communication services or an officer, agent, or employee of, or person under contract with such a provider, in the normal course of the business of providing that wire or electronic communication service; or
(ii) An officer, agent, or employee of, or a person under contract with, the United States, one of the 50 States, or a political subdivision thereof, when engaged in the normal course of government activities.
For SL reasons, license applications will generally be denied to countries that are subject to controls for AT reasons.
The normal course of the business of providing a wire or electronic communications service includes any activity which is a necessary incident to the rendition of the service or to the protection of the rights and property of the provider of that service.
(2) Other license applications will generally be denied for exports or reexports requiring a license for SL reasons.
(c)
(d)
(a)
(b)
(1) The country of destination;
(2) The ultimate end-user(s);
(3) The technology involved;
(4) The specific nature of the end-use(s); and
(5) The types of assurance against unauthorized use or diversion that are given in a particular case.
(c)
(d) [Reserved]
Encryption items can be used to maintain the secrecy of information, and thereby may be used by persons abroad to harm U.S. national security, foreign policy and law enforcement interests. The United States has a critical interest in ensuring that important and sensitive information of the public and private sector is protected. Consistent with our international obligations as a member of the Wassenaar Arrangement, the United States has a responsibility to maintain control over the export and reexport of encryption items. As the President indicated in Executive Order 13026 and in his Memorandum of November 15, 1996, exports and reexports of encryption software, like exports and reexports of encryption hardware, are controlled because of this functional capacity to encrypt information on a computer system, and not because of any informational or theoretical value that such software may reflect, contain, or represent, or that its export or reexport may convey to others abroad. For this reason, export controls on encryption software are distinguished from controls on other software regulated under the EAR.
(a)
(ii)
(2)
(ii)
(b)
(1)
(i) Up to (and including) 64-bit mass market encryption commodities and software;
(ii) Encryption items (including key management products and company proprietary implementations) with key lengths not exceeding 56 bits for symmetric algorithms, 512 bits for asymmetric key exchange algorithms, and 112 bits for elliptic curve algorithms;
(2)
(i)
(ii)
(iii)
(3)
(i)
(ii)
(iii)
(4)
(5)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
States that are parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention), undertake never to develop, produce, acquire, stockpile, transfer, or use chemical weapons. As a State Party to the Convention, the United States is subjecting certain toxic chemicals and their precursors listed in Schedules within the Convention to trade restrictions. Trade restrictions include: a prohibition on the export of Schedule 1 chemicals to States not Party to the CWC; a prohibition on the reexport of Schedule 1 chemicals to all destinations (both States Parties to the CWC and States not Party to the CWC); license requirements for the export of Schedule 1 chemicals to all States Parties; a prohibition on the export of Schedule 2 chemicals to States not Party to the CWC; and an End-Use Certificate requirement for exports of Schedule 3 chemicals to States not Party to the CWC. Exports of CWC chemicals that do not require a license for CW reasons (
(a)
(2)
(ii)
(B)
(
(
(C)
(b)
(A) The chemicals are destined only for purposes not prohibited under the CWC (
(B) The types and quantities of chemicals are strictly limited to those that can be justified for those purposes;
(C) The Schedule 1 chemicals were not previously imported into the United States (this does not apply to Schedule 1 chemicals imported into the United States prior to April 29, 1997, or imported into the United States directly from the same State Party to which they now are to be returned,
(D) The aggregate amount of Schedule 1 chemicals in the country of destination at any given time is equal to or less than one metric ton
(ii)
(iii)
(2)
(3)
(ii)
(4)
(c)
(a)
(2) The Secretary of State has designated North Korea as a country whose Government has repeatedly provided support for acts of international terrorism.
(3) In support of U.S. foreign policy on terrorism-supporting countries, BIS maintains two types of anti-terrorism controls on the export and reexport of items described in Supplement 2 to part 742.
(i) Items described in paragraphs (c)(1) through (c)(5) of Supplement No. 2 to part 742 are controlled under section 6(j) of the Export Administration Act, as amended (EAA), if destined to military, police, intelligence or other sensitive end-users.
(ii) Items described in paragraphs (c)(1) through (c)(5) of Supplement No. 2 to part 742 destined to non-sensitive end-users, as well as items described in paragraph (c)(6) through (c)(45) to all end-users, are controlled to North Korea under section 6(a) of the EAA. (See Supplement No. 2 to part 742 for more information on items controlled under sections 6(a) and 6(j) of the EAA and § 750.6 of the EAR for procedures for processing license applications for items controlled under EAA section 6(j).)
(b)
(i) Items controlled for chemical and biological weapons proliferation reasons to any destination. These items contain CB Column 1, CB Column 2, or CB Column 3 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(ii) Items controlled for missile proliferation reasons to any destination. These items have an MT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(iii) Items controlled for nuclear weapons proliferation reasons to any destination. These items contain NP Column 1 or NP Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(iv) Items controlled for national security reasons to any destination. These items contain NS Column 1 or NS Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(v) Military-related items controlled for national security reasons to any destination. These items contain NS Column 1 in the Country Chart column of the “License Requirements” section in an ECCN on the CCL
(vi) All aircraft (powered and unpowered), helicopters, engines, and related spare parts and components. Such items contain an NS Column 1, NS Column 2, MT Column 1, or AT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(vii) Cryptographic, cryptoanalytic, and crypto-logic items controlled any destination. These are items that contain an NS Column 1, NS Column 2, AT Column 1 or AT Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
(viii) Submersible systems controlled under ECCN 8A992.
(ix) Scuba gear and related equipment controlled under ECCN 8A992.
(x) Pressurized aircraft breathing equipment controlled under ECCN 9A991.
(xi) Explosives detection equipment controlled under ECCN 2A983.
(xii) “Software” (ECCN 2D983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
(xiii) “Technology” (ECCN 2E983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
(xiv) Commercial charges and devices controlled under ECCN 1C992.
(xv) Computer numerically controlled machine tools controlled under ECCN 2B991.
(xvi) Aircraft skin and spar milling machines controlled under ECCN 2B991.
(xvii) Semiconductor manufacturing equipment controlled under ECCN 3B991.
(xviii) Digital computers with an Adjusted Peak Performance (APP) exceeding 0.0004 Weighted TeraFLOPS (WT).
(xix) Microprocessors with a CTP of 550 or above.
(xx) Ammonium nitrate, including certain fertilizers containing ammonium nitrate, controlled under ECCN 1C997.
(xxi) Technology for the production of Chemical Weapons Convention (CWC) Schedule 2 and 3 Chemicals controlled under ECCN 1E355.
(2) Applications for export and reexport to North Korea of all other items described in paragraph (a) of this section, and not described by paragraph (b)(1) of this section, will generally be denied if the export or reexport is destined to a military end-user or for military end-use. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
(3) Applications for export and reexport to North Korea of items described in paragraphs (c)(12), (c)(24), (c)(34), (c)(37), (c)(38), and (c)(45) of Supplement No. 2 to part 742 will generally be denied if the export or reexport is destined to nuclear end-users or nuclear end-uses. Applications for non-nuclear end-users or for non-nuclear end-uses, excluding items described in (c)(24)(iv)(A) of Supplement No. 2 to part 742, will be considered on a case-by-case basis.
(4) License applications for items reviewed under section 6(a) controls will also be reviewed to determine the applicability of section 6(j) controls to the transaction. When it is determined that an export or reexport could make
Exports and reexports of items in performance of contracts entered into before the applicable contract sanctity date(s) will be eligible for review on a case-by-case basis or other applicable licensing policies that were in effect prior to the contract sanctity date. The contract sanctity dates set forth in this supplement are for the guidance of exporters. Contract sanctity dates are established in the course of the imposition of foreign policy controls on specific items and are the relevant dates for the purpose of licensing determinations involving such items. If you believe that a specific contract sanctity date is applicable to your transaction, you should include all relevant information with your license application.
(1) The contract sanctity date for exports to Iran or Syria of dimethyl methylphosphonate, phosphorous oxychloride, thiodiglycol, dimethylamine hydrochloride, dimethylamine, ethylene chlorohydrin (2-chloroethanol), and potassium fluoride is April 28, 1986.
(2) The contract sanctity date for exports to Iran or Syria of dimethyl phosphite (dimethyl hydrogen phosphite), methyl phosphonyldichloride, 3-quinuclidinol, N,N-diisopropylamino-ethane-2-thiol, N,N-diisopropylaminoethyl-2-chloride, 3-hydroxy-1-methylpiperidine, trimethyl phosphite, phosphorous trichloride, and thionyl chloride is July 6, 1987.
(3) The contract sanctity date for exports to Iran or Syria of items in ECCNs 1C351, 1C352, 1C353 and 1C354 is February 22, 1989.
(4) The contract sanctity date for exports to Iran of dimethyl methylphosphonate, phosphorus oxychloride, and thiodiglycol is February 22, 1989.
(5) The contract sanctity date for exports to Iran or Syria of potassium hydrogen fluoride, ammonium hydrogen fluoride, sodium fluoride, sodium bifluoride, phosphorus pentasulfide, sodium cyanide, triethanolamine, diisopropylamine, sodium sulfide, and N,N-diethylethanolamine is December 12, 1989.
(6) The contract sanctity date for exports to all destinations (except Iran or Syria) of phosphorus trichloride, trimethyl phosphite, and thionyl chloride is December 12, 1989. For exports to Iran or Syria, paragraph (2) of this supplement applies.
(7) The contract sanctity date for exports to all destinations (except Iran or Syria) of 2-chloroethanol and triethanolamine is January 15, 1991. For exports of 2-chloroethanol to Iran or Syria, paragraph (1) of this Supplement applies. For exports of triethanolamine to Iran or Syria, paragraph (5) of this Supplement applies.
(8) The contract sanctity date for exports to all destinations (except Iran or Syria) of chemicals controlled by ECCN 1C350 is March 7, 1991, except for applications to export the following chemicals: 2-chloroethanol, dimethyl methylphosphonate, dimethyl phosphite (dimethyl hydrogen phosphite), phosphorus oxychloride, phosphorous trichloride, thiodiglycol, thionyl chloride triethanolamine, and trimethyl phosphite. (See also paragraphs (6) and (7) of this Supplement.) For exports to Iran or Syria, see paragraphs (1) through (6) of this Supplement.
(9) The contract sanctity date for exports and reexports of the following commodities and technical data is March 7, 1991:
(i) Equipment (for producing chemical weapon precursors and chemical warfare agents) described in ECCNs 2B350 and 2B351;
(ii) Equipment and materials (for producing biological agents) described in ECCNs 1C351, 1C352, 1C353, 1C354, and 2B352; and
(iii) Technology (for the development, production, and use of equipment described in ECCNs 1C351, 1C352, 1C353, 1C354, 2B350, 2B351, and 2B352) described in ECCNs 2E001, 2E002, and 2E301.
(10) The contract sanctity date for license applications subject to § 742.2(b)(3) of this part is March 7, 1991.
(11) The contract sanctity date for reexports of chemicals controlled under ECCN 1C350 is March 7, 1991, except that the contract sanctity date for reexports of these chemicals to Iran or Syria is December 12, 1989.
(12) The contract sanctity date for reexports of human pathogens, zoonoses, toxins, animal pathogens, genetically modified microorganisms and plant pathogens controlled by ECCNs 1C351, 1C352, 1C353 and 1C354 is March 7, 1991.
Exports and reexports of items in performance of contracts entered into before the applicable contract sanctity date(s) will be eligible for review on a case-by-case basis or other applicable licensing policies that were in effect prior to the contract sanctity date. The contract sanctity dates set forth in this Supplement are for the guidance of exporters. Contract sanctity dates are established in the course of the imposition of foreign policy controls on specific items and are the relevant dates for the purpose of licensing determinations involving such items. If you believe that a specific contract sanctity date is applicable to your transaction, you should include all relevant information with your license application. BIS will determine any applicable contract sanctity date at the time an application with relevant supporting documents is submitted.
(a)
(b)
(1) On December 28, 1993, the Secretary of State determined that the export to Cuba, Iran, North Korea, Sudan, or Syria of items described in paragraphs (c)(1) through (c)(5) of this Supplement, if destined to military, police, intelligence or other sensitive end-users, are controlled under EAA section 6(j). Therefore, the 30-day advance Congressional notification requirement applies to the export or reexport of these items to sensitive end-users in any of these countries.
(2) License applications for items controlled to designated terrorist-supporting countries under EAA section 6(a) will also be reviewed to determine whether the Congressional notification requirements of EAA section 6(j) apply.
(3) Items controlled for anti-terrorism reasons under section 6(a) to Iran, North Korea, Sudan and Syria are:
(i) Items described in paragraphs (c)(1) through (c)(5) to non-sensitive end-users, and
(ii) The following items to all end-users: for Iran, items in paragraphs (c)(6) through (c)(44) of this Supplement; for North Korea, items in paragraph (c)(6) through (c)(45) of this Supplement; for Sudan, items in paragraphs (c)(6) through (c)(14) and (c)(16) through (c)(44) of this Supplement; and for Syria, items in paragraphs (c)(6) through (c)(8), (c)(10) through (c)(14), (c)(16) through (c)(19), and (c)(22) through (c)(44) of this Supplement.
(c) The license requirements and licensing policies for items controlled for anti-terrorism reasons to Iran, Syria, Sudan, and North Korea are generally described in §§ 742.8, 742.9, 742.10, and 742.19 of this part, respectively. This Supplement provides guidance on licensing policies for Iran, North Korea, Syria, and Sudan and related contract sanctity dates that may be available for transactions benefiting from pre-existing contracts involving Iran, Syria, and Sudan. Exporters are advised that the Treasury Department's Office of Foreign Assets Control administers a comprehensive trade and investment embargo against Iran (See Executive Orders 12957, 12959 and 13059 of March 15, 1995, May 6, 1995 and August 19, 1997, respectively.) Exporters are further advised that exports and reexports to Iran of items that are listed on the CCL as requiring a license for national security or foreign policy reasons are subject to a policy of denial under the Iran-Iraq Arms Non-Proliferation Act of October 23, 1992 (50 U.S.C. 1701 note (1994)). Transactions involving Iran and benefitting from a contract that pre-dates October 23, 1992 may be considered under the applicable licensing policy in effect prior to that date.
(1)
(A) Contract sanctity date for military end-users or end-uses of items valued at $7 million or more: January 23, 1984.
(B) Contract sanctity date for military end-users or end-uses of all other national security controlled items: September 28, 1984.
(C) Contract sanctity date for non-military end-users or end-uses: August 28, 1991,
(ii)
(iii)
(iv)
(2)
(3)
(4)
(ii)
(iii)
(iv)
(5)
(ii)
(iii)
(iv)
(6)
(A) Contract sanctity date for helicopters exceeding 10,000 lbs. empty weight or fixed wing aircraft valued at $3 million or more: January 23, 1984.
(B) Contract sanctity date for other helicopters and aircraft and gas turbine engines therefor: September 28, 1984.
(C) Contract sanctity date for helicopter or aircraft parts and components controlled by 9A991.d: October 22, 1987.
(ii)
(A) There is no contract sanctity for helicopters exceeding 10,000 lbs. empty weight or fixed wing aircraft valued at $3 million or more; except that passenger aircraft, regardless of value, have a contract sanctity date of December 16, 1986, if destined for a regularly scheduled airline with assurance against military use.
(B) Contract sanctity date for helicopters with 10,000 lbs. empty weight or less: April 28, 1986.
(C) Contract sanctity date for other aircraft and gas turbine engines therefor: December 16, 1986.
(D) Contract sanctity date for helicopter or aircraft parts and components controlled by ECCN 9A991.d: August 28, 1991.
(iii)
(iv)
(7)
(ii)
(iii)
(iv)
(8)
(ii)
(iii)
(iv)
(9)
(ii)
(iii)
(10)
(A) Contract sanctity date for military end-users or end-uses of cryptographic, cryptoanalytic, and cryptologic equipment that was subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other cryptographic, cryptoanalytic, and cryptologic equipment for all end-users: October 22, 1987.
(ii)
(iii)
(iv)
(11)
(A) Contract sanctity date for military end-users or end-uses of navigation, direction finding, and radar equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other navigation, direction finding, and radar equipment for all end-users: October 22, 1987.
(ii)
(A) Contract sanctity date for exports of navigation, direction finding, and radar equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other navigation, direction finding, and radar equipment: August 28, 1991.
(iii)
(iv)
(12)
(A) Contract sanctity date for military end-users or end-uses of electronic test equipment that was subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other electronic test equipment for all end-users: October 22, 1987.
(ii)
(A) Contract sanctity date for electronic test equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other electronic test equipment: August 28, 1991.
(iii)
(iv)
(13)
(A) Contract sanctity date for military end-users or end-uses of mobile communications equipment that was subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all end-users of all other mobile communications equipment: October 22, 1987.
(ii)
(A) Contract sanctity date for mobile communications equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for exports of all other mobile communications equipment: August 28, 1991.
(iii)
(iv)
(14)
(A) Contract sanctity date for military end-users or end-uses of acoustic underwater detection equipment that was subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other acoustic underwater detection equipment for all end-users: October 22, 1987.
(ii)
(iii)
(iv)
(15)
(ii)
(16)
(A) Contract sanctity date for military end-users or end-uses of vessels and boats that were subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other vessels and boats for all end-users: October 22, 1987.
(ii)
(iii)
(iv)
(17)
(A) Contract sanctity date for military end-users or end-uses of marine and submarine engines that were subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for outboard engines of 45 HP or more for all end-users: September 28, 1984.
(C) Contract sanctity date for all other marine and submarine engines for all end-users: October 22, 1987.
(ii)
(iii)
(iv)
(18)
(A) Contract sanctity date for military end-users or end-uses of underwater photographic equipment that was subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other underwater photographic equipment for all end-users: October 22, 1987.
(ii)
(A) Contract sanctity date for underwater photographic equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii)
(B) Contract sanctity date for all other underwater photographic equipment: August 28, 1991.
(iii)
(iv)
(19)
(A) Contract sanctity date for military end-users or end-uses of submersible systems that were subject to national security controls on October 22, 1987: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other submersible systems for all end-users: October 22, 1987.
(ii)
(A) Contract sanctity date for submersible systems that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other submersible systems: August 28, 1991.
(iii)
(iv)
(20)
(ii)
(iii)
(21)
(ii)
(iii)
(22)
(A) Contract sanctity date for military end-users and end-uses of computer numerically controlled machine tools that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other computer numerically controlled machine tools for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for computer numerically controlled machine tools that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for exports of all other computer numerically controlled machine tools: August 28, 1991.
(iii)
(iv)
(23)
(A) Contract sanctity date for military end-users and end-uses of vibration test equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other vibration test equipment for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for vibration test equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for exports of all other vibration test equipment: August 28, 1991.
(iii)
(iv)
(24)
(A) Contract sanctity dates for military end-users and end-uses of items that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other items for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity dates for items that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other items: August 28, 1991.
(iii)
(iv)
(B) Computers with an APP equal to or less than 0.0004 WT: Applications for military end-users or for military end-uses, or for nuclear end-users or nuclear end-uses, will generally be denied. Applications for non-military end-users or for non-military end-uses, or for non-nuclear end-users or non-nuclear end-uses, will be considered on a case-by-case basis.
(25)
(A) Radio relay systems or equipment operating at a frequency equal to or greater than 19.7 GHz or “spectral efficiency” greater than 3 bit/s/Hz;
(B) Fiber optic systems or equipment operating at a wavelength greater than 1000 nm;
(C) “Telecommunications transmission systems” or equipment with a “digital transfer rate” at the highest multiplex level exceeding 45 Mb/s.
(ii)
(A) Contract sanctity date for military end-users and end-uses of telecommunications equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other vibration test equipment for all end-users: August 28, 1991.
(iii)
(A) Contract sanctity date for exports of telecommunications equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for exports of all other telecommunications equipment: August 28, 1991.
(iv)
(v)
(26)
(A)
(
(
(B)
(
(
(C)
(ii) With a CTP of 550 MTOPS or above.
(A)
(B) [Reserved]
(27)
(i)
(A) Contract sanctity date for military end-users and end-uses of semiconductor manufacturing equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other microprocessors for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for semiconductor manufacturing equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other semiconductor manufacturing equipment: August 28, 1991.
(iii)
(iv)
(28)
(A) Contract sanctity date for military end-users and end-uses of such software that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other such software for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for such software that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other such software: August 28, 1991.
(iii)
(iv)
(29)
(A) Contract sanctity date for military end-users and end-uses in Iran of packet
(B) Contract sanctity dates for all other packet switches for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for packet switches that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other packet switches: August 28, 1991.
(iii)
(iv)
(30)
(A) Contract sanctity date for military end-users and end-uses of such software that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other such software for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for such software that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for exports of all other such software: August 28, 1991.
(iii)
(iv)
(31)
(A) Contract sanctity date for military end-users and end-uses of gravity meters that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other such gravity meters for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for gravity meters that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for exports of all other such gravity meters: August 28, 1991.
(iii)
(iv)
(32)
(A) Contract sanctity date for military end-users and end-uses of such magnetometers that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other such magnetometers for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for such magnetometers that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other such magnetometers: August 28, 1991.
(iii)
(iv)
(33)
(A) Contract sanctity date for military end-users and end-uses of such fluorocarbon compounds that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other such fluorocarbon compounds for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for such fluorocarbon compounds that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other such fluorocarbon compounds: August 28, 1991.
(iii)
(iv)
(34)
(A) Contract sanctity date for military end-users and end-uses of high strength organic and inorganic fibers (kevlar) described in ECCN 1C210 that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other high strength organic and inorganic fibers (kevlar) described in ECCN 1C210 for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for high strength organic and inorganic fibers (kevlar) described in ECCN 1C210 that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other high strength organic and inorganic fibers (kevlar) described in ECCN 1C210: August 28, 1991.
(iii)
(iv)
(35)
(A) Contract sanctity date for military end-users and end-uses of such machines that were subject to national security controls on
(B) Contract sanctity dates for all other such machines for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other machines: August 28, 1991.
(iii)
(iv)
(36)
(A) Contract sanctity date for military end-users and end-uses of aircraft skin and spar milling machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity dates for all other aircraft skin and spar milling machines to all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for aircraft skin and spar milling machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other aircraft skin and spar milling machines: August 28, 1991.
(iii)
(iv)
(37)
(A) Contract sanctity date for military end-users or end-uses of manual dimensional inspection machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other manual dimensional inspection machines for all end-users: August 28, 1991.
(ii)
(A) Contract sanctity date for such manual dimensional inspection machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other such manual dimensional inspection machines: August 28, 1991.
(iii)
(iv)
(38)
(A) Contract sanctity date for military end-users or end-uses of such robots that were subject to national security controls on August 28, 1991: see paragraphs (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other such robots: August 28, 1991.
(ii)
(A) Contract sanctity date for such robots that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
(B) Contract sanctity date for all other such robots: August 28, 1991.
(iii)
(iv)
(39)
(A)
(B)
(C)
(D)
(ii) Explosives detection equipment described in ECCN 2A983, not controlled prior to April 3, 2003 under ECCN 2A993.
(A)
(B)
(C)
(D)
(40)
(ii)
(iii)
(iv)
(41)
(ii)
(iii)
(iv)
(42)
(ii)
(iii)
(iv)
(43)
(ii)
(iii)
(iv)
(44)
(ii)
(iii)
(iv)
(45)
(i)
(ii) [Reserved]
(1) The key(s) or other material/information required to decrypt ciphertext shall be accessible through a key recoverable feature.
(2) The product's cryptographic functions shall be inoperable until the key(s) or other material/information required to decrypt ciphertext is recoverable by government officials under proper legal authority and without the cooperation or knowledge of the user.
(3) The output of the product shall automatically include, in an accessible format and with a frequency of at least once every three hours, the identity of the key recovery agent(s) and information sufficient for the key recovery agent(s) to identify the key(s) or other material/information required to decrypt the ciphertext.
(4) The product's key recoverable functions shall allow access to the key(s) or other material/information needed to decrypt the ciphertext regardless of whether the product generated or received the ciphertext.
(5) The product's key recoverable functions shall allow for the recovery of all required decryption key(s) or other material/information required to decrypt ciphertext during a period of authorized access without requiring repeated presentations of access authorization to the key recovery agent(s).
(6) The product's cryptographic functions may:
(i) Interoperate with other key recoverable products that meet these criteria, and shall not interoperate with products whose key recovery feature has been altered, bypassed, disabled, or otherwise rendered inoperative;
(ii) Send information to non-key recoverable products only when assured access is permitted to the key(s) or other material/information needed to decrypt ciphertext generated by the key recoverable product. Otherwise, key length is restricted to less than or equal to 56-bit DES or equivalent.
(iii) Receive information from non-key recoverable products with a key length restricted to less than or equal to 56-bit DES or equivalent.
(7) The product shall be resistant to efforts to disable or circumvent the attributes described in criteria one through six.
(8) The product's cryptographic function's key(s) or other material/information required to decrypt ciphertext shall be accessible to government officials under proper legal authority.
1. Does your product perform “cryptography”, or otherwise contain any parts or components that are capable of performing any of the following “information security” functions?
(Mark with an “X” all that apply)
2. For items with encryption, decryption and/or key management functions (1.a, 1.b, 1.c above):
a. What symmetric algorithms and key lengths (
b. What asymmetric algorithms and key lengths (
c. What encryption protocols (
d. What type of data is encrypted?
3. For products that contain an “encryption component”, can this encryption component be easily used by another product, or else accessed/re-transferred by the end-user for cryptographic use?
Review requests for encryption items must be submitted on Form BIS-748P (Multipurpose Application), or its electronic equivalent, and supported by the documentation described in this Supplement, in accordance with the procedures described in § 748.3 of the EAR. To ensure that your review request is properly routed, insert the phrase “Mass market encryption” or “License Exception ENC” (whichever is applicable) in Block 9 (Special Purpose) of the application form and place an “X” in the box marked “Classification Request” in Block 5 (Type of Application)—Block 5 does not provide a separate item to check for the submission of encryption review requests. Failure to properly complete these items may delay consideration of your review request. BIS recommends that review requests be delivered via courier service to: Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Ave., NW., Room 2705, Washington, DC 20230. For electronic submissions via SNAP, you may fax a copy of the support documents to BIS at (202) 219-9179 or -9182 or you may send the documents to: Bureau of Industry and Security, Information Technology Controls Division, Room 2093, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230. In addition, you must send a copy of your review request and all support documents to: Attn: ENC Encryption Request Coordinator, 9800 Savage Road, Suite 6940, Fort Meade, MD 20755-6000. For all review requests of encryption items, you must provide brochures or other documentation or specifications related to the technology, commodity or software, relevant product descriptions, architecture specifications, and as necessary for the review, source code. You also must indicate whether there have been any prior reviews of the product, if such reviews are applicable to the current submission. In addition, you must provide the following information in a cover letter accompanying your review request:
(a) State the name of the encryption item being submitted for review;
(b) State that a duplicate copy has been sent to the ENC Encryption Request Coordinator;
(c) For review requests for a commodity or software, provide the following information:
(1) Description of all the symmetric and asymmetric encryption algorithms and key lengths and how the algorithms are used. Specify which encryption modes are supported (e.g., cipher feedback mode or cipher block chaining mode).
(2) State the key management algorithms, including modulus sizes, that are supported.
(3) For products with proprietary algorithms, include a textual description and the source code of the algorithm.
(4) Describe the pre-processing methods (e.g., data compression or data interleaving) that are applied to the plaintext data prior to encryption.
(5) Describe the post-processing methods (e.g., packetization, encapsulation) that are applied to the cipher text data after encryption.
(6) State the communication protocols (e.g., X.25, Telnet or TCP) and encryption protocols (e.g., SSL, IPSEC or PKCS standards) that are supported.
(7) Describe the encryption-related Application Programming Interfaces (APIs) that are implemented and/or supported. Explain which interfaces are for internal (private) and/or external (public) use.
(8) Describe the cryptographic functionality that is provided by third-party hardware or software encryption components (if any). Identify the manufacturers of the hardware or software components, including specific part numbers and version information as needed to describe the product. Describe whether the encryption software components (if any) are statically or dynamically linked.
(9) For commodities or software using Java byte code, describe the techniques (including obfuscation, private access modifiers or final classes) that are used to protect against decompilation and misuse.
(10) State how the product is written to preclude user modification of the encryption algorithms, key management and key space.
(11) For products that meet the requirements of § 740.17(b)(3)—Encryption commodities, software and components available to both “government end-users” and to non-“government end-users”—describe how they
(12) For products which incorporate an open cryptographic interface as defined in part 772 of the EAR, describe the Open Cryptographic Interface.
(d) For review requests regarding components, provide the following additional information:
(1) Reference the application for which the components are used in, if known;
(2) State if there is a general programming interface to the component;
(3) State whether the component is constrained by function; and
(4) Identify the encryption component and include the name of the manufacturer, component model number or other identifier.
(e) For review requests for source code, provide the following information:
(1) If applicable, reference the executable (object code) product that was previously reviewed;
(2) Include whether the source code has been modified, and the technical details on how the source code was modified; and
(3) Include a copy of the sections of the source code that contain the encryption algorithm, key management routines and their related calls.
(f) For step-by-step instructions and guidance on submitting review requests for encryption items, visit our webpage at
50 U.S.C. app. 2401
(a)
For purposes of part 743, the term “you” has the same meaning as the term “exporter”, as defined in part 772 of the EAR.
(b)
(1) Exports authorized under License Exceptions GBS, CIV, TSR, LVS, APP, and the cooperating government portions (§§ 740.11(b)(2)(iii) and 740.11(b)(2)(iv) of the EAR) of GOV (see part 740 of the EAR). Note that exports of technology and source code under License Exception TSR to foreign nationals located in the U.S. should not be reported; and
(2) Exports authorized under the Special Comprehensive License procedure (see part 752 of the EAR).
(c)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
The reporting requirement for 6A002.a.3 excludes the following “focal plane arrays”:
a. Platinum Silicide having less than 10,000 elements;
b. Iridium Silicide;
c. Indium Antimonide or Lead Selenide having less than 256 elements;
d. Indium Arsenide;
e. Lead Sulphide;
f. Indium Gallium Arsenide;
g. Mercury Cadmium Telluride, as follows:
1. ‘Scanning Arrays' having any of the following:
a. 30 elements or less; or
b. Incorporating time delay-and-integration within the element and having 2 elements or less;
2. ‘Staring Arrays' less than 256 elements;
‘Scanning Arrays' are defined as “focal plane arrays” designed for use with a scanning optical system that images a scene in a sequential manner to produce an image.
‘Staring Arrays' are defined as “focal plane arrays” designed for use with a non-scanning optical system that images a scene.
h. Gallium Arsenide or Gallium Aluminum Arsenide quantum well having less than 256 elements;
(vii)
(viii)
(ix)
(2) Reports for “software” controlled by 4D001 (that is specially designed), and “technology” controlled by 4E001 (according to the General Technology Note in Supplement No. 2 to part 774 of the EAR) are required for the “development” or “production” of computers controlled under 4A001.a.2, or for the “development” or “production” of
(d)
(e)
(i) Export Control Classification Number and paragraph reference as identified on the Commerce Control List;
(ii) Number of units in the shipment; and
For exports of technology for which reports are required under § 743.1(c) of this section, the number of units in the shipment should be reported as one (1) for the initial export of the technology to a single ultimate consignee. Additional exports of the technology must be reported only when the type or scope of technology changes or exports are made to other ultimate consignees. Additionally, do not report the release of technology or source code subject to the EAR to foreign nationals in the U.S.
(iii) Country of ultimate destination.
(2) [Reserved]
(f)
(1) The first report must be submitted to and received by BIS no later than August 1, 1998 for the partial reporting period beginning January 15, 1998 and ending June 30, 1998. Thereafter, reports are due according to the provisions of paragraphs (f)(2) and (f)(3) of this section.
(2) Reports for the reporting period ending June 30 must be submitted to and received by BIS no later than August 1.
(3) Reports for the reporting period ending December 31 must be submitted to and received by BIS no later than February 1.
(g)
(i) For deliveries by U.S. postal service:
(ii) For courier deliveries:
(2) Reports may also be sent by facsimile to: (202) 482-3345, Attn: “Wassenaar Reports”.
(h)
(a)
(b)
(c)
(1) Exporter name, address, and telephone number;
(2) License number;
(3) Date of export;
(4) End-user name, point of contact, address, telephone number;
(5) Carrier;
(6) Air waybill or bill of lading number;
(7) Commodity description, quantities—listed by model numbers, serial numbers, and APP level in WT; and
(8) Certification line for exporters to sign and date. The exporter must certify that the information contained in the report is accurate to the best of his or her knowledge.
Exporters are required to provide the PRC End-User Certificate Number to BIS as part of their post-shipment report. When providing the PRC End-User Certificate Number to BIS, you must identify the transaction in the post shipment report to which that PRC End-User Certificate Number applies.
(d)
(1) For deliveries by U.S. postal service: U.S. Department of Commerce, Bureau of Industry and Security, P.O. Box 273, Washington, DC 20044, Attn: Office of Enforcement Analysis HPC Team, Room 4065.
(2) For courier deliveries: U.S. Department of Commerce, Office of Enforcement Analysis, HPC Team, 14th Street and Constitution Ave., NW., Room 4065, Washington, DC 20230.
50 U.S.C. app. 2401
(a)(1)
(2) If controls set forth under more than one section of part 744 apply to a person, the license requirements for such a person will be determined based
(b)
(1)
(2)
(c) A list of entities is included in Supplement No. 4 to this part 744 of the EAR (Entity List). The public is hereby informed that these entities are ineligible to receive any items subject to the EAR without a license to the extent specified in the supplement. No License Exceptions are available for exports and reexports to listed entities of specified items, except License Exceptions for items listed in § 740.2(a)(5) of the EAR destined to listed Indian or Pakistani entities to ensure the safety of civil aviation and safe operation of commercial passenger aircraft, and in the case of entities added to the Entity List pursuant to § 744.20, to the extent specified on the Entity List.
(a)
(1)
(2)
(3)
(i) Facilities for the chemical processing of irradiated special nuclear or source material;
(ii) Facilities for the production of heavy water;
(iii) Facilities for the separation of isotopes of source and special nuclear material; or
(iv) Facilities for the fabrication of nuclear reactor fuel containing plutonium.
(b)
(c)
(d)
(1) Whether the commodities, software, or technology to be transferred are appropriate for the stated end-use and whether that stated end-use is appropriate for the end-user;
(2) The significance for nuclear purposes of the particular commodity, software, or technology;
(3) Whether the commodities, software, or technology to be exported are to be used in research on or for the development, design, manufacture, construction, operation, or maintenance of any reprocessing or enrichment facility;
(4) The types of assurances or guarantees given against use for nuclear explosive purposes or proliferation in the particular case;
(5) Whether the end-user has been engaged in clandestine or illegal procurement activities;
(6) Whether an application for a license to export to the end-user has previously been denied, or whether the end-use has previously diverted items received under a license, License Exception, or NLR to unauthorized activities;
(7) Whether the export would present an unacceptable risk of diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2 of this part; and
(8) The nonproliferation credentials of the importing country, based on consideration of the following factors:
(i) Whether the importing country is a party to the Nuclear Non-Proliferation Treaty (NPT) or to the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) (see Supplement No. 2 to part 742 of the EAR), or to a similar international legally-binding nuclear nonproliferation agreement;
(ii) Whether the importing country has all of its nuclear activities, facilities or installations that are operational, being designed, or under construction, under International Atomic Energy Agency (IAEA) safeguards or equivalent full scope safeguards;
(iii) Whether there is an agreement for cooperation in the civil uses of atomic energy between the U.S. and the importing country;
(iv) Whether the actions, statements, and policies of the government of the importing country are in support of nuclear nonproliferation and whether that government is in compliance with its international obligations in the field of nonproliferation;
(v) The degree to which the government of the importing country cooperates in nonproliferation policy generally (e.g., willingness to consult on international nonproliferation issues);
(vi) Intelligence data on the importing country's nuclear intentions and activities.
(a)
(1) Will be used in the design, development, production or use of rocket systems or unmanned air vehicles capable of a range of at least 300 kilometers in or by a country listed in Country Group D:4 of Supplement No. 1 to part 740 of the EAR.
(2) Will be used, anywhere in the world except by governmental programs for nuclear weapons delivery of NPT Nuclear Weapons States that are also member of NATO, in the design, development, production or use of rocket systems or unmanned air vehicles, regardless of range capabilities, for the delivery of chemical, biological, or nuclear weapons; or
(3) Will be used in the design, development, production or use of any rocket systems or unmanned air vehicles in or by a country listed in Country Group D:4, but you are unable to determine:
(i) The characteristics (
(ii) Whether the rocket systems or unmanned air vehicles, regardless of range capabilities, will be used in a manner prohibited under paragraph (a)(2) of this section.
For the purposes of this section, “Rocket Systems” include, but are not limited to, ballistic missile systems, space launch vehicles, and sounding rockets. Also, for the purposes of this section, “unmanned air vehicles” include, but are not limited to, cruise missile systems, target drones and reconnaissance drones.
(b)
(c)
(d)
(2) The following factors are among those that will be considered to determine what action should be taken on an application required by this section:
(i) The specific nature of the end use;
(ii) The significance of the export, reexport or transfer in terms of its contribution to the design, development, production or use of certain rocket systems or unmanned air vehicles;
(iii) The capabilities and objectives of the rocket systems or unmanned air vehicles of the recipient country;
(iv) The nonproliferation credentials of the importing country;
(v) The types of assurances or guarantees against design, development, production, or use for certain rocket system or unmanned air vehicle delivery purposes that are given in a particular case; and
(vi) The existence of a pre-existing contract.
(a)
(b)
(c)
(d)
(2) The following factors are among those that will be considered to determine what action should be taken on an application required under this section:
(i) The specific nature of the end-use;
(ii) The significance of the export, reexport, or transfer in terms of its contribution to the design, development, production, stockpiling, or use of chemical or biological weapons;
(iii) The nonproliferation credentials of the importing country or the country in which the transfer would take place;
(iv) The types of assurances or guarantees against the design, development, production, stockpiling, or use of chemical or biological weapons that are given in a particular case; and
(v) The existence of a pre-existing contract. See Supplement No. 1 to Part 742 of the EAR for relevant contract sanctity dates.
(a)
(b)
(c)
(a)
(A) Will be used in the design, development, production, or use of nuclear explosive devices in or by a country listed in Country Group D:2 (see Supplement No. 1 to part 740 of the EAR).
(B) Will be used in the design, development, production, or use of missiles in or by a country listed in Country Group D:4 (see Supplement No. 1 to part 740 of the EAR); or
(C) Will be used in the design, development, production, stockpiling, or use of chemical or biological weapons in or by any country or destination, worldwide.
(ii) No U.S. person shall, without a license from BIS, knowingly support an export, reexport, or transfer that does not have a license as required by this section. Support means any action, including financing, transportation, and freight forwarding, by which a person facilitates an export, reexport, or transfer without being the actual exporter or reexporter.
(2)
(i) Perform any contract, service, or employment that the U.S. person knows will directly assist in the design, development, production, or use of missiles in or by a country listed in Country Group D:4 (see Supplement No. 1 to part 740 of the EAR); or
(ii) Perform any contract, service, or employment that the U.S. person knows will directly assist in the design, development, production, stockpiling, or use of chemical or biological weapons in or by any country or destination, worldwide.
(3)
(b)
Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided
(c)
(1) Any individual who is a citizen of the United States, a permanent resident alien of the United States, or a protected individual as defined by 8 U.S.C. 1324b(a)(3);
(2) Any juridical person organized under the laws of the United States or any jurisdiction within the United States, including foreign branches; and
(3) Any person in the United States.
(d)
(e)
(a)
(1) To the country in which the vessel or aircraft is located, and
(2) To the country in which the vessel or aircraft is registered, or will be registered in the case of a vessel or aircraft under construction, and
(3) To the country, including a national thereof, which is currently controlling, leasing, or chartering the vessel or aircraft.
(b)
(i) Ordered by the person in command or the owner or agent of the vessel or plane to which they are consigned;
(ii) Intended to be used or consumed on board such vessel or plane and necessary for its proper operation;
(iii) In usual and reasonable kinds and quantities during times of extreme need, except that usual and reasonable quantities of ship's bunkers or aviation fuel are considered to be only that quantity necessary for a single onward voyage or flight; and
(iv) Shipped as cargo for which a Shipper's Export Declaration (SED) or Automated Export System (AES) record is filed in accordance with the requirements of the Foreign Trade Statistics Regulations (15 CFR part 30), except that an SED or AES record is not required when any of the commodities, other than fuel, is exported by U.S. airlines to their own aircraft abroad for their own use.
(2)
(i) Ordered by a U.S. or Canadian airline and consigned to its own installation or agent abroad;
(ii) Intended for maintenance, repair, or operation of aircraft registered in
(iii) In usual and reasonable kinds and quantities; and
(iv) Shipped as cargo for which a Shipper's Export Declaration (SED) or Automated Export System (AES) record is filed in accordance with the requirements of the Foreign Trade Statistics Regulations (15 CFR part 30), except that an SED or AES record is not required when any of these commodities is exported by U.S. airlines to their own installations and agents abroad for use in their aircraft operations.
(3)
(i) Fuel, except crude petroleum and blends of unrefined crude petroleum with petroleum products, which is of non-Naval Petroleum Reserves origin or derivation (refer to short supply controls in part 754 of the EAR);
(ii) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements, except crude petroleum, provided that any commodities which are listed in Supplement No. 2 to part 754 of the EAR are of non-Naval Petroleum Reserves origin or derivation (refer to short supply controls in part 754 of the EAR);
(iii) Medical and surgical supplies;
(iv) Food stores;
(v) Slop chest articles;
(vi) Saloon stores or supplies; and
(vii) Equipment and spare parts.
(a)
(b)
(1) Any individual who is a citizen or permanent resident alien of the United States;
(2) Any juridical person organized under the laws of the United States or any jurisdiction within the United States, including foreign branches; and
(3) Any person in the United States.
(c)
(a)
(b)
(c)
BIS maintains restrictions on exports and reexports to persons designated in or pursuant to Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism). These persons include individuals and entities listed in the Annex to Executive Order 13224, as well as persons subsequently designated by the Secretary of State or Secretary of the Treasury pursuant to criteria set forth in the Order. Pursuant to Executive Order 13224, the Department of the Treasury's Office of Foreign Assets Control (OFAC) maintains 31 CFR part 594, the Global Terrorism Sanctions Regulations. OFAC announces the names of persons designated pursuant to Executive Order 13224 in the
(a)
(2) To avoid duplication, U.S. persons are not required to seek separate authorization for an export or reexport to an SDGT of an item subject to both the EAR and OFAC's regulatory authority pursuant to Executive Order 13224. Therefore, if OFAC authorizes an export from the United States or an export or reexport by a U.S. person to an SDGT, no separate authorization from BIS is necessary.
(3) U.S. persons must seek authorization from BIS for the export or reexport to an SDGT of any item subject to the EAR that is not subject to OFAC's Global Terrorism Sanctions Regulations in 31 CFR part 594.
(4) Non-U.S. persons must seek authorization from BIS for any export from abroad or reexport to an SDGT of any item subject to the EAR.
(5) Any export or reexport to an SDGT of any item subject to both the EAR and OFAC's regulatory authority pursuant to Executive Order 13224 and not authorized by OFAC is a violation of the EAR.
(6) Any export or reexport by a U.S. person to an SDGT of any item subject to the EAR that is not subject to regulation by OFAC and not authorized by BIS is a violation of the EAR. Any export from abroad or reexport by a non-U.S. person to an SDGT of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
(7) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
(b)
(c)
(d)
This section does not implement, construe, or limit the scope of any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 2339A, and does not excuse any person from complying with any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 18 U.S.C. 2339A.
Consistent with the purpose of Executive Order 12947 of January 23, 1995, BIS maintains restrictions on exports and reexports to Specially Designated Terrorists (SDTs). Executive Order 12947 prohibits transactions by U.S. persons with terrorists who threaten to disrupt the Middle East peace process. Pursuant to the Executive Order, the Department of the Treasury, Office of Foreign Assets Control (OFAC), maintains 31 CFR part 595, the Terrorism Sanctions Regulations. In Appendix A to 31 CFR Chapter V, pursuant to 31 CFR part 595, these Specially Designated Terrorists are identified by the bracketed suffix initials [SDT]. The requirements set forth below further the objectives of Executive Order 12947.
(a)
(2) To avoid duplication, U.S. persons are not required to seek separate authorization for an export or reexport to an SDT of an item subject both to the EAR and to OFAC's Terrorism Sanctions Regulations in 31 CFR part 595. Therefore, if OFAC authorizes an export or reexport of an item by a U.S. person to a SDT, no separate authorization from BIS is necessary.
(3) U.S. persons must seek authorization from BIS for the export or reexport to an SDT of an item subject to the EAR but not subject to OFAC's Terrorism Sanctions Regulations in 31 CFR part 595.
(4) Non-U.S. persons must seek authorization from BIS for the export from abroad or reexport to an SDT of any item subject to the EAR.
(5) Any export or reexport to an SDT by a U.S. person of any item subject both to the EAR and OFAC's Terrorism Sanctions Regulations in 31 CFR part 595 and not authorized by OFAC is a violation of the EAR.
(6) Any export or reexport by a U.S. person to an SDT of any item subject to the EAR that is not subject to OFAC's Terrorism Sanctions Regulations in 31 CFR part 595 and not authorized by BIS is a violation of the EAR. Any export from abroad or reexport by a non-U.S. person to an SDT of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
(7) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
(b)
(c)
(d)
This section does not implement, construe, or limit the scope of any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 2339A, and does not excuse any person from complying with any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 18 U.S.C. 2339A.
Consistent with the objectives of section 219 of the Immigration and Nationality Act, as amended (INA) (8 U.S.C. 1189), and section 303 of the Antiterrorism and Effective Death Penalty Act 1996, as amended (Anti-Terrorism Act) (18 U.S.C. 2339B) (Public Law 104-132. 110 Stat. 1214-1319), BIS maintains restrictions on exports and
(a)
(2) U.S. persons must seek authorization from BIS for the export or reexport to an FTO of any item subject to the EAR.
(3) Non-U.S. persons must seek authorization from BIS for the export from abroad or reexport to an FTO of any item subject to the EAR.
(4) Any export or reexport to an FTO by any person of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
(5) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
(b)
(c)
(d)
(e)
This section does not implement, construe, or limit the scope of any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 2339A, and does not excuse any person from complying with any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 18 U.S.C. 2339A.
Certain General Orders set forth in Supplement No. 1 to part 736 of the EAR require licenses for exports and reexports involving certain persons (individuals and other legal entities). The requirement to comply with General Orders is set forth in section 736.2(b)(9) of the EAR.
(a)
(b)
(c)
(d)
(e)
(f)
Consistent with Executive Order (E.O.) 13315 of August 28, 2003 (“Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members, and Taking Certain Other Actions”), BIS maintains restrictions on exports, reexports, and transfers to persons designated in or pursuant to E.O. 13315. These persons include individuals and entities listed in the Annex to Executive Order 13315, as well as persons subsequently designated pursuant to criteria set forth in the order. OFAC includes the names of persons designated pursuant to E.O. 13315 in Appendix A to 31 CFR Chapter V, which lists persons subject to various sanctions programs administered by OFAC. All persons designated in or pursuant to E.O. 13315 are identified in Appendix A by the bracketed initials [IRAQ2].
(a)
(i) Persons listed in the Annex to E.O. 13315 of August 28, 2003; or
(ii) Persons determined to be subject to E.O. 13315.
(2) To avoid duplication, U.S. persons are not required to seek separate BIS authorization for an export, reexport,
(3) U.S. persons must seek authorization from BIS for the export, reexport, or transfer to a person identified in paragraph (a) of this section of any item subject to the EAR but not subject to regulations maintained by OFAC.
(4) Non-U.S. persons must seek authorization from BIS for the export from abroad, reexport, or transfer to a person identified in paragraph (a) of this section of any item subject to the EAR.
(5) Any export, reexport, or transfer to a person identified in paragraph (a) of this section by a U.S. person of any item subject both to the EAR and regulations maintained by OFAC and not authorized by OFAC is a violation of the EAR.
(6) Any export, reexport, or transfer by a U.S. person to a person identified in paragraph (a) of this section of any item subject to the EAR that is not subject to regulations maintained by OFAC and not authorized by BIS is a violation of the EAR. Any export from abroad, reexport, or transfer by a non-U.S. person to a person identified in paragraph (a) of this section of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
(7) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
(b)
(c)
(d)
Notwithstanding any other licensing policy elsewhere in the EAR, BIS will deny any export or reexport license application if the applicant, other party authorized to receive a license, purchaser, intermediate consignee, ultimate consignee, or end-user is subject to one or more of the sanctions described in paragraphs (a), (b), and (c) of this section and will deny any export or reexport license application for an item listed on the Commerce Control List with a reason for control of MT if such party is subject to a sanction described in paragraph (d) of this section.
(a) A sanction issued pursuant to the Iran-Iraq Arms Nonproliferation Act of 1992 (Public Law 102-484) that prohibits the issuance of any license to or by the sanctioned entity.
(b) A sanction issued pursuant to the Iran Nonproliferation Act of 2000 (Public Law 106-178) that prohibits the granting of a license for the transfer to foreign entities of items, the export of which is controlled under the Export Administration Act of 1979 or the Export Administration Regulations.
(c) A sanction issued pursuant to section 11B(b)(1)(B)(ii) of the Export Administration Act of 1979, as amended, and as carried out by Executive Order 13222 of August 17, 2001, that prohibits the issuance of new licenses for exports to the sanctioned entity of items controlled pursuant to the Export Administration Act of 1979.
(d) A sanction issued pursuant to section11B(b)(1)(B)(i) of the Export Administration Act of 1979, as amended (Missile Technology Control Act of 1990), and as carried out by an Executive Order 13222 of August 17, 2001, that prohibits the issuance of new licenses for exports to the sanctioned entity of MTCR Annex equipment or technology
BIS may impose, as foreign policy controls, export and reexport license requirements and set licensing policy with respect to certain entities that have been sanctioned by the State Department. Such license requirements and policy are in addition to those imposed elsewhere in the EAR. License requirements and licensing policy may be imposed pursuant to this section even when the sanction and the legal authority under which the State Department imposed the sanction do not require or authorize the imposition of any license requirement or licensing policy. License requirements and licensing policy will be imposed pursuant to this section by adding an entity to the Entity List in accordance with paragraphs (a), (b), and (c) of this section.
(a)
(b)
(c)
(a)
(1) Cruise missiles;
(2) Electronic suites of military aircraft and helicopters;
(3) Radar for searching, targeting, or tracking systems;
(4) Command/control/communications or navigation systems;
(5) Unmanned aerial vehicles capable of performing military reconnaissance, surveillance, or combat support;
(6) Rocket or missile systems;
(7) Electronic or information warfare systems; or
(8) Intelligence, reconnaissance, or surveillance systems suitable for supporting military operations.
(b) [Reserved]
50 U.S.C. 1701
Pursuant to the Convention, the United States is required to notify the Organization for the Prohibition of Chemical Weapons (OPCW) not less than 30 days in advance of every export of a Schedule 1 chemical, in any quantity, to another State Party. In addition, the United States is required to provide a report of all exports of Schedule 1 chemicals to other States Parties during each calendar year. If you plan to export any quantity of a Schedule 1 chemical controlled under the EAR and licensed by the Department of Commerce or controlled under the International Traffic in Arms Regulations (ITAR) and licensed by the Department of State, you are required under this section to notify the Department of Commerce in advance of this export. You are also required to provide an annual report of exports that actually occurred during the previous calendar year. The United States will transmit the advance notifications and an aggregate annual report to the OPCW of exports of Schedule 1 chemicals from the United States. Note that the notification and annual report requirements of this section do not relieve the exporter of any requirement to obtain a license from the Department of Commerce for the export of Schedule 1 chemicals subject to the EAR or from the Department of State for the export of Schedule 1 chemicals subject to the ITAR.
(a)
(1) Such notification should be on company letterhead or must clearly identify the reporting entity by name of company, complete address, name of contact person and telephone and fax numbers, along with the following information:
(i) Common Chemical Name;
(ii) Structural formula of the chemical;
(iii) Chemical Abstract Service (CAS) Registry Number;
(iv) Quantity involved in grams;
(v) Planned date of export;
(vi) Purpose (end-use) of export;
(vii) Name of recipient;
(viii) Complete street address of recipient;
(ix) Export license or control number, if known; and
(x) Company identification number, once assigned by BIS.
(2) Send the notification by fax to (703) 235-1481 or to the following address, for mail and courier deliveries: Information Technology Team, Department of Commerce, Bureau of Industry and Security, 1555 Wilson Boulevard, Suite 710, Arlington, VA 22209. Attn: “Advance Notification of Schedule 1 Chemical Export”.
(3) Upon receipt of the notification, BIS will inform the exporter of the earliest date the shipment may occur under the notification procedure. To export the Schedule 1 chemical, the exporter must have applied for and been granted a license (see §§ 742.2 and 742.18 of the EAR, or the ITAR at 22 CFR part 121.
(b)
(i) Common Chemical Name;
(ii) Structural formula of the chemical;
(iii) CAS Registry Number;
(iv) Quantity involved in grams;
(v) Date of export;
(vi) Export license number;
(vii) Purpose (end-use) of export;
(viii) Name of recipient;
(ix) Complete address of recipient, including street address, city and country; and (x) Company identification number, once assigned by BIS.
(2) The report must be signed by a responsible party, certifying that the information provided in the annual report is, to the best of his/her knowledge and belief, true and complete.
(3) Send the report by fax to (703) 235-1481 or to the following address, for mail and courier deliveries: Information Technology Team, Department of Commerce, Bureau of Industry and Security, 1555 Wilson Boulevard, Suite 710, Arlington, VA 22209. Attn: “Annual Report of Schedule 1 Chemical Export”.
The End-Use Certificate requirement of this section does not relieve the exporter of any requirement to obtain a license from the Department of Commerce for the export of Schedule 3 chemicals subject to the Export Administration Regulations or from the Department of State for the export of Schedule 3 chemicals subject to the International Traffic in Arms Regulations.
(a)(1) No U.S. person, as defined in § 744.6(c) of the EAR, may export from the United States any Schedule 3 chemical identified in Supplement No. 1 to this part to countries not party to the Chemical Weapons Convention (destinations
(2) Submit a copy of the End-Use Certificate to the Department of Commerce by fax at (703) 235-1481 or to the following address no later than 7 days after the date of export, for mail and courier deliveries: Information Technology Team, Department of Commerce, Bureau of Industry and Security, 1555 Wilson Boulevard, Suite 710, Arlington, VA 22209. Attn: CWC End-Use Certificate Report.
(b) The End-Use Certificate described in paragraph (a) of this section must state the following:
(1) That the chemicals will be used only for purposes not prohibited under the Chemical Weapons Convention;
(2) That the chemicals will not be transferred to other end-user(s) or end-use(s);
(3) The types and quantities of chemicals;
(4) Their specific end-use(s); and
(5) The name(s) and complete address(es) of the end-user(s).
* For CWC purposes only, China includes Hong Kong.
** For CWC purposes only, the Netherlands includes Aruba and the Netherlands Antilles.
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part implements broad based controls for items and activities subject to the EAR imposed to implement U.S. government policies. Two categories of controls are included in this part.
(a)
(1)
(2)
(b)
(c) This part also contains descriptions of controls maintained by the Office of Foreign Assets Control in the Treasury Department and by the Directorate of Defense Trade Controls in the Department of State. Comprehensive embargoes and supplemental controls implemented by BIS under the EAR usually also involve controls on items and activities maintained by these agencies. This part sets forth the allocation of licensing responsibilities between BIS and these other agencies. References to the requirements of other agencies are informational; for current, complete, and authoritative requirements, you should consult the appropriate agency's regulations.
(a)
(1)
(i) Temporary exports and reexports (TMP) by the news media (see § 740.9(a)(2)(viii) of the EAR).
(ii) Operation technology and software (TSU) for legally exported commodities or software (see § 740.13(a) of the EAR).
(iii) Sales technology (TSU) (see § 740.13(b) of the EAR).
(iv) Software updates (TSU) for legally exported software (see § 740.13(c) of the EAR).
(v) Parts (RPL) for one-for-one replacement in certain legally exported commodities (see § 740.10(a) of the EAR).
(vi) Baggage (BAG) (see § 740.14 of the EAR).
(vii) Governments and international organizations (GOV) (see § 740.11 of the EAR).
(viii) Gift parcels and humanitarian donations (GFT) (see § 740.12 of the EAR).
(ix) Items in transit (TMP) from Canada through the U.S. (see § 740.9(b)(1)(iv) of the EAR).
(x) Aircraft and vessels (AVS) for certain aircraft on temporary sojourn (see § 740.15(a) of the EAR).
(xi) Permissive reexports of certain spare parts in foreign-made equipment (see § 740.16(h) of the EAR).
(xii) Exports of agricultural commodities, classified as EAR99, under License Exception Agricultural Commodities (AGR) and certain reexports of U.S. origin agricultural commodities, classified as EAR99, under License Exception AGR (see § 740.18 of the EAR).
(2) [Reserved]
(b)
(1)
(i) To the extent restrictions would be permitted under section 5(m) of the Export Administration Act of 1979, as amended (EAA), or section 203(b)(2) of the International Emergency Economic Powers Act;
(ii) If there is a reasonable likelihood that the item to be exported will be used for purposes of torture or other human rights abuses;
(iii) If there is a reasonable likelihood that the item to be exported will be reexported;
(iv) If the item to be exported could be used in the production of any biotechnological product; or
(v) If it is determined that the United States government is unable to verify, by on-site inspection or other means, that the item to be exported will be used for the purpose for which it was intended and only for the use and benefit of the Cuban people, but this exception shall not apply to donations of medicines for humanitarian purposes to a nongovernmental organization in Cuba.
(2) Telecommunications commodities may be authorized on a case-by-case basis, provided the commodities are part of an FCC-approved project and are necessary to provide efficient and adequate telecommunications services between the United States and Cuba.
(3) Exports from third countries to Cuba of non-strategic foreign-made products that contain an insubstantial proportion of U.S.-origin materials, parts, or components will generally be considered favorably on a case-by-case basis, provided all of the following conditions are satisfied:
(i) The local law requires, or policy favors, trade with Cuba;
(ii) The U.S.-origin content does not exceed 20 percent of the value of the product to be exported from the third country. Requests where the U.S.-origin parts, components, or materials represent more than 20 percent by value of the foreign-made product will generally be denied. See Supplement No. 2 to part 734 of the EAR for instructions on how to calculate value; and
(iii) You are not a U.S.-owned or -controlled entity in a third country as defined by OFAC regulations, 31 CFR part 515, or you are a U.S.-owned or controlled entity in a third country and one or more of the following situations applies:
(A) You have a contract for the proposed export that was entered into prior to October 23, 1992.
(B) Your transaction involves the export of foreign-produced medicines or medical devices incorporating U.S. origin parts, components or materials, in which case the application will be reviewed according to the provisions of paragraph (b)(1) of this section.
(C) Your transaction is for the export of foreign-produced telecommunications commodities incorporating U.S.-origin parts, components and materials, in which case the application will be reviewed under the licensing policy set forth in paragraph (b)(2) of this section.
(D) Your transaction is for the export of donated food to individuals or non-governmental organizations in Cuba and does not qualify as a humanitarian donation under License Exception GFT (§ 740.12 of the EAR) or License Exception AGR (§ 740.18 of the EAR).
(4) Applications for licenses may be approved, on a case-by-case basis, for certain exports to Cuba intended to provide support for the Cuban people, as follows:
(i) Applications for licenses for exports of certain commodities and software may be approved to human rights organizations, or to individuals and non-governmental organizations that promote independent activity intended to strengthen civil society in Cuba when such exports do not give rise to U.S. national security or counter-terrorism concerns. Examples of such
(ii) Commodities and software may be approved for export to U.S. news bureaus in Cuba whose primary purpose is the gathering and dissemination of news to the general public. In addition to the examples of commodities and software listed in paragraph (b)(4)(i) of this section, certain telecommunications equipment necessary for the operation of news organizations (e.g., 33M bit/s data signaling rate or less) may be approved for export to U.S. news bureaus.
(iii) Exports of agricultural items, which are outside the scope of agricultural commodities as defined in part 772 of the EAR, such as insecticides, pesticides and herbicides, as well as agricultural commodities not eligible for License Exception AGR, require a license and will be reviewed on a case-by-case basis.
(5) Applications for exports of aircraft or vessels on temporary sojourn to Cuba either to deliver humanitarian goods or services, or consistent with the foreign policy interests of the United States, will be considered on a case-by-case basis.
(c) Cuba has been designated by the Secretary of State as a country whose government has repeatedly provided support for acts of international terrorism. For anti-terrorism controls, see Supplement 2 to part 742 of the EAR.
(d)
(e)
Pursuant to United Nations Security Council (UNSC) Resolutions 1483 and 1546 and other relevant resolutions, the United Nations maintains an embargo on the sale or supply to Iraq of arms and related materiel and their means of production, except items required by the Interim Government of Iraq or the Multinational Force in Iraq to serve the purposes of Resolution 1546. UNSC Resolutions 707 and 687 require that Iraq eliminate its nuclear weapons program and restrict its nuclear activities to the use of isotopes for medical, industrial or agricultural purposes. Such resolutions further mandate that Iraq eliminate its chemical and biological weapons programs as well as its ballistic missile program. In support of the applicable UNSC resolutions, certain Iraq specific license requirements and licensing policies are detailed in this section. In addition, this section details restrictions on transfers of items subject to the EAR within Iraq. Exporters should be aware that other provisions of the EAR, including parts 742 and 744, will continue to apply with respect to exports and reexports to Iraq and transfers within Iraq.
(a)
(2) A license is required for the export or reexport to Iraq or transfer within Iraq of any item controlled on
(3) A license is required for the export or reexport to Iraq or transfer within Iraq of items on the Commerce Control List controlled for RS reasons under the following ECCNs: 0B999, 0D999, 1B999, 1C992, 1C995, 1C997, 1C999 and 6A992.
(4) A license is required for the export or reexport to Iraq or transfer within Iraq of any item subject to the EAR if, at the time of the export, reexport or transfer, you know, have reason to know, or are informed by BIS that the item will be, or is intended to be, used for a “military end-use” or by a “military end-user”, as defined in this section. This license requirement does not apply to exports, reexports or transfers of items for the official use by personnel and agencies of the U.S. Government or exports, reexports or transfers to the Interim Government of Iraq or the Multinational Force in Iraq.
(i)
(ii)
(5)
(b)
(2) License applications for the export or reexport to Iraq or transfer within Iraq of machine tools controlled for national security (NS) or nuclear non-proliferation (NP) reasons, as well as for any items controlled for crime control (CC) or united nations (UN) reasons (including items controlled under ECCN 0A986) or ECCNs that end in the number “018”, that would make a material contribution to the production, research, design, development, support, maintenance or manufacture of Iraqi weapons of mass destruction, ballistic missiles or arms and related materiel will be subject to a general policy of denial.
(3) License applications for the export or reexport to Iraq or transfer within Iraq of items listed in paragraph (a)(3) of this section will be reviewed on a case-by-case basis to determine if they would contribute to the building of Iraqi civil infrastructure. Applications determined not to contribute to the building of Iraqi civil infrastructure will be subject to a general policy of denial.
(4) License applications for the export or reexport to Iraq or transfer within Iraq of items listed in paragraph (a)(4) of this section will be subject to a policy of denial.
(c)
(d)
(e)
(1)
(e)(1). Persons that have been authorized by OFAC to export or reexport items that are subject to the export control jurisdiction of other agencies must consult with OFAC and the other relevant agencies with regard to the expiration date of the authorization granted by OFAC.
(2)
(i) May not be transferred within Iraq to a new end-user without a license from BIS,
(ii) May be reexported to the United States without a license,
(iii) May be reexported to third countries subject to the license requirements for the destination, end-use or end-user set forth elsewhere in the EAR.
(3)
(i) Date of export or reexport and related details (including means of transport);
(ii) Description of items (including ECCN) and value of items in U.S. Dollars;
(iii) Description of proposed end-use and locations in Iraq where items are intended to be used;
(iv) Parties other than specific OFAC licensee who may be given temporary access to the items; and
(v) Date of consumption or destruction, if the items are consumed or destroyed in the normal course of their use in Iraq, or the date of reexport to a third country not requiring further authorization from BIS, or return to the United States.
(f)
(2)
(ii) A license is required for the transfer within Iraq to designated terrorists or terrorist organizations, as set forth in §§ 744.12, 744.13, or 744.14 of the EAR.
The Treasury Department's Office of Foreign Assets Control (OFAC) administers a comprehensive trade and investment embargo against Iran under the authority, inter alia, of the International Emergency Economic Powers Act of 1977, as amended, section 505 of the International Security and Development Cooperation Act of 1985, and Executive Order 13059 of August 19, 1997, which consolidates the provisions of Executive Orders 12613, 12957 and 12959. This embargo includes prohibitions on export and certain reexport transactions involving Iran, including transactions dealing with items subject to the EAR. (See OFAC's Iranian Transactions Regulations, 31 CFR part 560.) BIS continues to maintain licensing requirements on exports and reexports to Iran under the EAR as described in paragraph (a)(2) of this section. No person may export or reexport items subject to both the EAR and OFAC's Iranian Transactions Regulations without prior OFAC authorization. Exports and reexports subject to the EAR that are not subject to the Iranian Transactions Regulations may require authorization from BIS.
(a)
(i) You seek authorization to export from the United States; or
(ii) You are a United States person (as defined in OFAC's Iranian Transactions Regulations, 31 CFR part 560) and seek authorization to export or reexport from a third country; or
(iii) You seek authorization to reexport U.S.-origin items that were subject to any export license application requirements prior to Executive Order 12959 of May 6, 1995.
(2)
(i) To export to Iran any item on the CCL containing a CB Column 1, CB Column 2, CB Column 3, NP Column 1, NP Column 2, NS Column 1, NS Column 2, MT Column 1, RS Column 1, RS Column 2, CC Column 1, CC Column 2, CC Column 3, AT Column 1 or AT Column 2 in the Country Chart Column of the License Requirements section of an ECCN, or classified under ECCNs 1C980, 1C981, 1C982, 1C983, 1C984, 5A980, 5D980, 5E980, 0A980, and 0A983; or
(ii) To reexport to Iran any of the items identified in paragraph (a)(2)(i) of this section, except for ECCNs 2A994; 3A992.a; 5A991.g; 5A992; 6A991; 6A998; 7A994; 8A992.d, .e, .f, and .g; 9A990.a and .b; and 9A991.d and .e. However, the export of these items from the United States to any destination with knowledge that they will be reexported, in whole or in part, to Iran, is prohibited without a license; or
(iii) To export or reexport items subject to the general prohibitions, including proliferation end-use prohibitions (see part 736 of the EAR).
(3)
(4)
(b) Iran has been designated by the Secretary of State as a country that has repeatedly provided support for acts of international terrorism. For
(a)
(b)
(i) Crime Control and Detection Equipment as identified on the CCL under CC Columns No. 1, 2 or 3 in the Country Chart column of the “License Requirements” section of the applicable ECCN.
(ii) Items described by any ECCN ending in “018”, and items described by ECCNs 0A978; 0A979; 0A982; 0A984; 0A986; 0A988; 0B986; 0E982; 1A005; 5A980; 5D980; 5E980; 6A002.a.1, a.2, a.3, and .c; 6A003.b.3 and b.4; 6E001; 6E002; and 9A991.a.
(2) This embargo became effective at 11:59 p.m. EDT on May 26, 1994.
(3)
(i)
(ii)
(c)
(d)
General Order No. 2, Supplement No. 1 to part 736 of the EAR, sets forth special controls for exports and reexports to Syria.
50 U.S.C. app. 2401
A Special Iraq Reconstruction License (SIRL) authorizes exports and reexports to Iraq and transfers within Iraq of items in furtherance of civil reconstruction and other related projects.
(a) A SIRL authorizes exports and reexports to Iraq and transfers within Iraq of items in furtherance of civil reconstruction and other projects funded by:
(1) The United States Government;
(2) The United Nations, the World Bank, and the International Monetary Fund, their affiliated entities (
(3) Any other entities that the U.S. Government may designate.
(b) To be eligible for a SIRL, exports, reexports or transfers must be made pursuant to and within the scope of contractual or similar arrangements in furtherance of civil reconstruction or other projects in Iraq funded by any of the entities described above.
All items subject to the EAR, other than items controlled for missile technology (MT), nuclear nonproliferation (NP) or chemical and biological weapons (CB) reasons, are eligible for export, reexport or transfer under a SIRL.
(a)
(2) Form BIS-748P-B, End-User Appendix. All end-users must be identified on Form BIS-748P-B, End-User Appendix.
(b)
(1) Identity of all parties to the proposed transaction;
(2) Detailed description of the project, funding entity, the contract or work order which formed the basis of the transaction, and any identification number or project code for that contract or work order;
(3) Explanation of how the project will contribute to the reconstruction of Iraq and any potential security issues associated with the items to be exported, reexported or transferred;
(4) Written statement from one or more funding agencies referred to in § 747.2 addressing whether the transaction is likely to pose security issues;
(5) Certification that items will not be used in any of the prohibited proliferation activities described in part 744 of the EAR;
(6) For items that will remain in the control of the exporter, a commitment to return all items to the United States when the authorized project or
(7) Certification that parties to the transaction will obtain a license from BIS prior to transferring within Iraq or reexporting items to end-users not authorized under the SIRL, unless they would not require a BIS license to the new country of destination. (Please see the guidance in § 747.5(d) regarding the transfer of items to persons within Iraq not included on the End-User Appendix.)
(a)
(b)
(2) BIS will thoroughly analyze all parties, items and activities associated with the applicant's proposed transaction(s). If BIS cannot verify that all parties, items and activities are appropriate, or establish the reliability of the proposed parties to the application, it may deny the application, or modify it by eliminating certain consignees, items, activities or other elements.
(3) The licensing decision will focus on the following factors:
(i) The proposed end-use(s);
(ii) If the proposed transaction will contribute to the reconstruction of Iraq;
(iii) If the proposed transaction could contribute to the design, development, production, stockpiling, or use of nuclear or chemical or biological weapons, or missiles of greater than 150 kilometer range and the types of assurances available against these activities;
(iv) The potential impact of the proposed transaction on the security situation in Iraq; and
(v) The reliability of all parties to the proposed transaction.
(4) If the U.S. Government determines that the proposed transaction does not satisfy all the criteria of part 747, BIS will inform the applicant that the agency will review the application under standard license procedures for individual items rather than as a SIRL. The applicant may elect to have the application Returned Without Action. Applicants are not required to use the SIRL procedure and may seek authorization under standard license procedures.
(c)
(1) The SIRL reference number;
(2) The date the project is completed or discontinued;
(3) Verification that items exported under the authority of the SIRL were, as applicable, consumed during use, returned to the United States, reexported to a third country, or transferred to a party within Iraq for whom the applicant has received a license from BIS; and
(4) The reference numbers of the licenses received for the reexport or transfer within Iraq, if required.
(d)
(1) Return the items to the United States,
(2) Reexport the items to a third country, and obtain prior BIS approval where required; or
(3) Seek a license from BIS prior to transferring the items within Iraq to an end-user not identified on the End-User Appendix.
(e)
(1) Change to consignee name or address;
(2) Addition of new consignee;
(3) Addition of new item;
(4) Changes to end user information or additional end users added; and/or
(5) Change to license holder ownership or control. Applicants must submit a written request for a change to the Office of Exporter Services. BIS will respond to these requests in written form. Changes involving the following must be reported to BIS within 30 days of their occurrence but do not require prior BIS approval:
(i) License holder address, contact information, or license value; or
(ii) Removing consignee(s), items or end users from the SIRL.
(f)
50 U.S.C. app. 2401
(a)
(b)
(c)
(a) You may obtain the forms required by the EAR from any U.S. Department of Commerce District Office; or in person or by telephone or facsimile from the following BIS offices:
(b) For the convenience of foreign consignees and other foreign parties, certain BIS forms may be obtained at U.S. Embassies and Consulates throughout the world.
(c) All applications should be mailed to the following address, unless otherwise specified: Bureau of Industry and Security, U.S. Department of Commerce, P.O. Box 273, Washington, D.C. 20044. If you wish to submit your application using an overnight courier, use the following address: Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue N.W., Room 2705, Washington, D.C. 20044, Attn: “Application Enclosed”. BIS will not accept applications sent C.O.D.
(a)
(b)
(1) Each Classification Request must be limited to six items. Exceptions may be granted by BIS on a case-by-case basis for several related items if the relationship between the items is satisfactorily substantiated in the request. Classification requests must be supported by any descriptive literature, brochures, precise technical specifications or papers that describe the items in sufficient technical detail to enable classification by BIS.
(2) When submitting a Classification Request, you must complete Blocks 1 through 5, 14, 22 (a), (b), (c), (d), and (i), 24, and 25 on Form BIS-748P. You must provide a recommended classification in Block 22(a) and explain the basis for your recommendation based on the technical parameters specified in the appropriate ECCN in Block 24. If you are unable to determine a recommended classification for your item, include an explanation in Block 24, identifying the ambiguities or deficiencies that precluded you from making a recommended classification.
(c)
(1) Your letter must contain the following information if you are requesting guidance regarding interpretations of the EAR:
(i) The name, title, and telephone and facsimile numbers of the person to contact,
(ii) Your complete address comprised of street address, city, state, country, and postal code; and
(2) If you are requesting BIS to determine whether a license is required, or the licensing policy related to a particular end-use, end-user, and/or destination, in addition to the information required in § 748.3(c)(1) you must also include:
(i) All available information on the parties to the transaction and the proposed end-use or end-user,
(ii) The model number for each item, where appropriate,
(iii) The Export Control Classification Number, if known, for each item; and
(iv) Any descriptive literature, brochures, technical specifications or papers that describe the items in sufficient technical detail to enable BIS to verify the correct classification.
(d)
(a)
(2)
(3)
(b)
(2)
(A) An agent, applicant, licensee and exporter for a foreign principal party in interest in a routed transaction; or
(B) An agent who prepares an application for export on behalf of a U.S. principal party in interest who is the actual applicant, licensee and exporter in an export transaction.
(ii)
(c)
(d)
(1)
(2)
(e)
(f)
(g)
(h)
The following parties may be entered on the BIS-748P Multipurpose Application Form or electronic equivalent. The definitions, which also appear in part 772 of the EAR, are set out here for your convenience to assist you in filling out your application correctly.
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(1)
(2)
(ii) Your company may reveal the assigned company identification number only to the PIN holders, their supervisors, employees, or agents of the company with a commercial justification for knowing the company identification number.
(iii) An individual PIN holder may not:
(A) Disclose the PIN to anyone;
(B) Record the PIN either in writing or electronically;
(C) Authorize another person to use the PIN; or
(D) Use the PIN following termination by BIS or your company of your authorization or approval for PIN use.
(iv) To prevent misuse of the PIN:
(A) If a PIN is lost, stolen or otherwise compromised, the company and the PIN holder must report the loss, theft or compromise of the PIN immediately by telephoning BIS at (202) 482-0436. You must confirm this notification in writing within two business days to BIS at the address provided in § 748.2(c) of this part.
(B) Your company is responsible for immediately notifying BIS whenever a PIN holder leaves the employ of the company or otherwise ceases to be authorized by the company to submit applications electronically on its behalf.
(v) No person may use, copy, steal or otherwise compromise a PIN assigned to another person; and no person may use, copy, steal or otherwise compromise the company identification number where the company has not authorized such person to have access to the number.
(b)
(2)
(c)
(d)
In addition to the instructions contained in Supplement No. 1 to this part
(a) Chemicals, medicinals, and pharmaceuticals.
(b) Communications intercepting devices.
(c) Digital computers, telecommunications, and related equipment.
(d) Gift parcels; consolidated in a single shipment.
(e) Intransit shipments through the United States.
(f) Intransit shipments outside of the United States.
(g) Nuclear Nonproliferation items and end-uses.
(h) Numerical control devices, motion control boards, numerically controlled machine tools, dimensional inspection machines, direct numerical control systems, specially designed assemblies and specially designed software.
(i) Parts, components, and materials incorporated abroad into foreign-made products.
(j) Ship stores, plane stores, supplies, and equipment.
(k) Regional stability controlled items.
(l) Reexports.
(m) Robots.
(n) Short Supply controlled items.
(o) Technology.
(p) Temporary exports or reexports.
(q) Exports of chemicals controlled for CW reasons by ECCN 1C350 to countries not listed in Supplement No. 2 to part 745 of the EAR.
(r) Encryption review requests.
(s) Foreign National Review Request.
(t) Foreign National Support Statement for deemed exports.
(u) Aircraft and vessels on temporary sojourn.
(v) In-country transfers.
(a)
(1) All exports and reexports involving ultimate consignees located in any of the following destinations:
(2) The ultimate consignee or purchaser is a foreign government(s) or foreign government agency(ies), other than the government of the People's Republic of China. To determine whether the parties to your transaction meet the definition of “government agency” refer to the definition contained in part 772 of the EAR. Remember, if either the ultimate consignee or purchaser is not a foreign government or foreign government agency, a statement is required from the nongovernmental party.
(3) The license application is filed by, or on behalf of, a relief agency registered with the Advisory Committee on Voluntary Foreign Aid, U.S. Agency for International Development, for export to a member agency in the foreign country.
(4) The license application is submitted to export or reexport items for
(5) The license application is submitted for items controlled for short supply reasons (see part 754 of the EAR).
(6) The license application is submitted under the Special Comprehensive License procedure described in part 752 of the EAR.
(7) The license application is submitted to export or reexport software or technology.
(8) The license application is submitted to export or reexport encryption items controlled under ECCNs 5A002, 5B002, 5D002 and 5E002.
(b)
(1) Does your transaction involve items controlled for national security reasons?
(i) If yes, continue with question number 2 in paragraph (b)(2) of this section.
(ii) If no, your transaction may require a Statement by Ultimate Consignee and Purchaser. Read the remainder of this section beginning with paragraph (c) of this section, then proceed to § 748.11 of the EAR.
(2) Does your transaction involve items controlled for national security reasons destined for one of the following countries? (This applies only to those overseas destinations specifically listed.)
(i) If yes, your transaction may require an Import or End-User Certificate. Note that if the destination is the People's Republic of China, a Statement of Ultimate Consignee and Purchaser may be substituted for a PRC End-User Certificate under the following conditions:
(A) The item to be exported (i.e., replacement parts and sub-assemblies) is for servicing previously exported items and is valued at $75,000 or less; or
(B) The End-User is not a Chinese entity.
(ii) If no, your transaction may require a Statement by Ultimate Consignee and Purchaser. Read the remainder of this section beginning with paragraph (c) of this section, then proceed to § 748.11 of the EAR.
(c)
(1)
(2)
(d)
(e)
(2) All subsequent license applications supported by the same Import or End-Use Certificate must be submitted to BIS within one year from the date that the first license application supported by the same Import or End-Use Certificate was submitted to BIS.
(3) All subsequent license applications supported by the same Statement by Ultimate Consignee and Purchaser must be submitted within two years of the first application if the statement was completed as a single transaction statement. If the statement was completed as a multiple transaction statement, all applications must be submitted within two years of signature by the consignee or purchaser, whichever was last.
(f)
(g)
(2) Misrepresentations, either through failure to disclose facts, concealing a material fact, or furnishing false information, will subject responsible parties to administrative action by BIS. Administrative action may include suspension, revocation, or denial of licensing privileges and denial of other participation in exports from the United States.
(3) In obtaining the required support document, you as the applicant are not relieved of the responsibility for full disclosure of any other information concerning the ultimate destination and end-use, end-user of which you know, even if inconsistent with the representations made in the Import Certificate, End-User Certificate, or Statement by Ultimate Consignee and
(h)
(i)
(1) The applicant must send a letter request for return of an Import or End-User Certificate to the address stated in § 748.2(c) of this part, “Attn: Import/End-User Certificate Request”.
(2) The letter request must include the name and address of the importer, the Application Control Number under which the original Import or End-User Certificate was submitted, the Application Control Numbers for any subsequent license applications supported by the same certificate, and one of the following statements, if applicable:
(i) If the certificate covers a quantity greater than the total quantity identified on the license application(s) submitted against it, a statement that the certificate will not be used in connection with another license application.
(ii) If you do not intend to make any additional shipments under a license covered by the certificate, or are in possession of an expired license covered by the certificate, a statement to this effect, indicating the unshipped items.
(j)
(i) A statement citing the foreign importer's request for return of the certificate;
(ii) The license number(s) that have been issued against the certificate (including both outstanding and expired licenses); and
(iii) If the certificate covers a quantity greater that the total quantity stated on the license(s), you must include a statement that the certificate will not be used in connection with another license application.
(2) If your request is granted, BIS will return the certificate to you. You must make a copy of the certificate before you return the original to the importer. This copy must show all the information contained on the original certificate including any notation made on the certificate by BIS. The copies must be retained on file along with your correspondence in accordance with the recordkeeping provisions in part 762 of the EAR.
(a)
(b)
(1) Any commodities on your license application are controlled for national security (NS) reasons, except for items controlled under ECCN 5A002 or 5B002;
(2) The ultimate destination is a country listed in § 748.9(b)(2) of this part.
(3) Your transaction involves an export to the People's Republic of China (PRC) of a computer, regardless of dollar value, that requires a license application.
(4) Your license application involves the export of commodities and software classified in a single entry on the CCL, the total value of which exceeds $5,000. Note that this $5,000 threshold does not apply to exports to the People's Republic of China of computers subject to the provisions of § 748.10(b)(3).
(i) Your license application may list several separate CCL entries. If any entry controlled for national security reasons exceeds $5,000, then an Import or End-User Certificate must be obtained covering all items controlled for national security reasons on your license application;
(ii) If your license application involves a lesser transaction that is part of a larger order for items controlled for national security reasons in a single ECCN exceeding $5,000, an Import or End-User Certificate must be obtained.
(iii) You may be specifically requested by BIS to obtain an Import Certificate for a transaction valued under $5,000.
(c)
(2) The applicant's name must appear on the Import or End-User Certificate submitted to BIS as either the applicant, supplier, or order party. The Import Certificate may be made out to either the ultimate consignee or the purchaser, even though they are different parties, as long as both are located in the same country.
You should furnish the consignee with the item description contained in the CCL to be used in applying for the Import or End-User Certificate. It is also advisable to furnish a manufacturer's catalog, brochure, or technical specifications if the item is new.
(3) If your transaction requires support of a PRC End-User Certificate, you must ensure the following information is included on the PRC End-User Certificate signed by an official of the Department of Science and Technology of the Ministry of Foreign Trade and Economic Cooperation (MOFTEC) with MOFTEC's seal affixed to it:
(i) Title of contract and contract number (optional);
(ii) Names of importer and exporter;
(iii) End-User and end-use;
(iv) Description of the item, quantity and dollar value; and
(v) Signature of the importer and date.
(d)
(e)
(2) If you receive an IIC bearing a triangular symbol, you must identify all
(f)
I (We) certify that the quantities of items shown on this license application, based on the Certificate identified in Block 13 of this license application, when added to the quantities shown on all other license applications submitted to BIS based on the same Certificate, do not total more than the total quantities shown on the above cited Certificate.
(g)
(h)
(i)
(j)
(a)
(1) An International Import Certificate, a People's Republic of China End-User Certificate, an Indian Import Certificate, or a Bulgarian, Czech, Hungarian, Polish, Romanian or Slovak Import Certificate is required in support of the license application;
(2) The applicant is the same person as the ultimate consignee, provided the required statements are contained in Block 24 on the license application. This exemption does not apply where the applicant and consignee are separate entities, such as parent and subsidiary, or affiliated or associated firms;
(3) The application is valued at $5000 or less, and is not part of a larger transaction; or
(4) The transaction meets one of the exemptions stated in § 748.9(a) of this part.
(b)
(c)
(1) Responsible officials representing the ultimate consignee and purchaser must sign the statement. “Responsible official” is defined as someone with personal knowledge of the information included in the statement, and authority to bind the ultimate consignee or purchaser for whom they sign, and who has the power and authority to control the use and disposition of the licensed items.
(2) The authority to sign the statement may not be delegated to any person (agent, employee, or other) whose authority to sign is not inherent in his or her official position with the ultimate consignee or purchaser for whom he or she signs. The signing official may be located in the U.S. or in a foreign country. The official title of the person signing the statement must also be included.
(3) The consignee and/or purchaser must submit information that is true and correct to the best of their knowledge and must promptly send a new statement to the applicant if changes in the facts or intentions contained in their statement(s) occur after the statement(s) have been forwarded to the applicant. Once a statement has been signed, no corrections, additions, or alterations may be made. If a signed statement is incomplete or incorrect in any respect, a new statement must be prepared, signed and forwarded to the applicant.
(d)
(e)
(1)
(i)
(ii)
(2)
(i) The items for which a license application will be filed by [name of applicant] will be used by us as capital equipment in the form in which received in a manufacturing process in [name of country] and will not be reexported or incorporated into an end product.
(ii) The items for which a license application will be filed by [name of applicant] will be processed or incorporated by us into the following product(s) [list products] to be manufactured in [name of country] for distribution in [list name of country or countries].
(iii) The items for which a license application will be filed by [name of applicant] will be resold by us in the form in which received for use or consumption in [name of country].
(iv) The items for which a license application will be filed by [name of applicant] will be reexported by us in the form in which received to [name of country or countries].
(v) The items received from [name of applicant] will be [describe use of the items fully].
(3)
(i) The nature of our business is [possible choices include; broker, distributor, fabricator, manufacturer, wholesaler, retailer, value added reseller, original equipment manufacturer, etc.].
(ii) Our business relationship with [name of applicant] is [possible choices include; contractual, franchise, distributor, wholesaler, continuing and regular individual business, etc.] and we have had this business relationship for [number of years].
(4)
(i) We certify that all of the facts contained in this statement are true and correct to the best of our knowledge and we do not know of any additional facts that are inconsistent with the above statements. We shall promptly send a replacement statement to [name of the applicant] disclosing any material change of facts or intentions described in this statement that occur after this statement has been prepared and forwarded to [name of applicant]. We acknowledge that the making of any false statement or concealment of any material fact in connection with this statement may result in imprisonment or fine, or both, and denial, in whole or in part, of participation in U.S. exports or reexports.
(ii) Except as specifically authorized by the U.S. Export Administration Regulations, or by written approval from the Bureau of Industry and Security, we will not reexport, resell, or otherwise dispose of any items approved on a license supported by this statement:
(A) To any country not approved for export as brought to our attention by the exporter; or
(B) To any person if there is reason to believe that it will result directly or indirectly in disposition of the items contrary to the representations made in this statement or contrary to the U.S. Export Administration Regulations.
(iii) We understand that acceptance of this statement as a support document cannot be construed as an authorization by BIS to reexport the items in the form in which received even though we may have indicated the intention to reexport, and that authorization to reexport is not granted in an export license on the basis of information provided in the statement, but as a result of a specific request in a license application.
(a)
(1) Requirements are usually imposed or extended by virtue of one of the following:
(i) Addition or removal of national security controls over a particular item; or
(ii) Development of an Import Certificate/Delivery Verification or End-User Certificate program by a foreign country; or
(iii) Removal of an item from eligibility under the Special Comprehensive License described in part 752 of the EAR, when you hold such a special license and have been exporting the item under that license.
(2) License applications filed during the 45 day grace period must be accompanied by any evidence available to you that will support representations concerning the ultimate consignee, ultimate destination, and end use, such as copies of the order, letters of credit, correspondence between you and ultimate consignee, or other documents received from the ultimate consignee. You must also identify the regulatory change (including its effective date) that justifies exercise of the 45 day grace period. Note that an Import or End-User Certificate will not be accepted, after the stated grace period, for license applications involving items that are no longer controlled for national security reasons. If an item is removed from national security controls, you must obtain a Statement by Ultimate Consignee and Purchaser as described in § 748.11 of this part. Likewise, any item newly controlled for national security purposes requires support of an Import or End-User Certificate as described in § 748.10 of this part after expiration of the stated grace period.
(b)
(c)
(1) Imposes an undue hardship on you and/or ultimate consignee (e.g., refusal by the foreign government to issue an Import or End-User Certificate and such refusal constitutes discrimination against you); or
(2) Cannot be complied with (e.g., the items will be held in a foreign trade zone or bonded warehouse for subsequent distribution in one or more countries); or
(3) Is not applicable to the transaction (e.g., the items will not be imported for consumption into the named country of destination).
(d)
(2) In instances where you are requesting exception from obtaining an Import or End-User Certificate, the request must be accompanied by a manually-signed original Statement by Ultimate Consignee and Purchaser as described in § 748.11 of this part.
(3) At a minimum, the letter request must include:
(i) Name and address of ultimate consignee;
(ii) Name and address of purchaser, if different from ultimate consignee;
(iii) Location of foreign trade zone or bonded warehouse if the items will be exported to a foreign trade zone or bonded warehouse;
(iv) Type of request, i.e., whether for a single transaction or multiple transactions;
(v) Full explanation of the reason(s) for requesting the exception;
(vi) Nature and duration of the business relationship between you and ultimate consignee and purchaser shown on the license application;
(vii) Whether you have previously obtained and/or submitted to BIS an Import or End-User Certificate issued in the name of the ultimate consignee and/or purchaser, and a list of the Application Control Number(s) to which the certificate(s) applied; and
(viii) Any other facts to justify granting an exception.
(4)
(ii)
(e)
(a)
(2) If BIS decides to request verification of delivery, the request will appear as a condition on the face of the license. If the license is sent directly to a party other than the applicant authorized to receive the license (e.g., agent, forwarder, broker, etc.), such party is responsible for notifying the licensee immediately in writing that a DV is required.
(b)
(c)
(1) The importer must obtain the DV from the appropriate government ministry identified in Supplement No. 4 to this part, and forward the completed DV to the licensee. The DV must cover the items described on the license that have been shipped. Note that BIS must
(2) The original copy of the DV must be sent to BIS within 90 days after the last shipment has been made against the license. If verification of delivery is required for items covered by a license against which partial shipments have been made, the licensee shall obtain the required DV for each partial shipment, and retain these on file until all shipments have been made against the license. Once all shipments against the license have been made (or the licensee has determined that none will be), the licensee must forward, in one package, all applicable DVs to BIS at the address listed in § 748.2(c) of this part.
(3) The documents must be forwarded with a dated letter giving the license number, the name, title and signature of the authorized representative, and one of the following statements:
(i) The total quantity authorized by license number ___ has been exported, and all delivery verification documents are attached.
(ii) A part of the quantity authorized by license number ___ will not be exported. Delivery verification documents covering all items exported are attached.
(iii) No shipment has been made against this license, and none is contemplated.
(d)
(a)
(b)
(1) The applicant has received a facsimile of the Import Certificate or equivalent official document at the time the license application is filed; and
(2) The applicant states on the application that a facsimile of the Import Certificate or equivalent official document has been received and that no shipment will be made against the license prior to obtaining the original or certified copy of the Import Certificate or the original or certified copy of the equivalent official document issued by the importing country and retaining it on file. Generally, BIS will not consider any license application for the export of firearms items if the application is not supported by an Import Certificate or its official equivalent. If the government of the importing country will not issue an Import Certificate or its official equivalent, the applicant must supply the information described in paragraphs (g)(2)(i) and (g)(2)(vi) through (viii) of this section on company letterhead.
(c)
(d)
(e)
(f)
(g)
(2) The Import Certificate or its official equivalent must contain the following information:
(i) Applicant's name and address. The applicant may be either the exporter, supplier, or order party.
(ii) Import Certificate Identifier/Number.
(iii) Name of the country issuing the certificate or unique country code.
(iv) Date the Import Certificate was issued, in international date format (e.g., 24/12/98 (24 December 1998), or 3/1/99 (3 January 1999)).
(v) Name of the agency issuing the certificate, address, telephone and facsimile numbers, signing officer name, and signature.
(vi) Name of the importer, address, telephone and facsimile numbers, country of residence, representative's name if commercial or government body, citizenship, and signature.
(vii) Name of the end-user(s), if known and different from the importer, address, telephone and facsimile numbers, country of residence, representative's name if commercial (authorized distributor or reseller) or government body, citizenship, and signature. Note that BIS does not require the identification of each end-user when the firearms items will be resold by a distributor or reseller if unknown at the time of export.
(viii) Description of the items approved for import including a technical
You must furnish the consignee with a detailed technical description of each item to be given to the government for its use in issuing the Import Certificate. For example, for shotguns, provide the type, barrel length, overall length, number of shots, the manufacturer's name, the country of manufacture, and the serial number for each shotgun. For ammunition, provide the caliber, velocity and force, type of bullet, manufacturer's name and country of manufacture.
(ix) Expiration date of the Import Certificate in international date format (e.g., 24/12/98) or the date the items must be imported, whichever is earlier.
(x) Name of the country of export (i.e., United States).
(xi)
(h)
(i)
(j)
All information must be legibly typed within the lines for each Block or Box, except where a signature is required. Enter only one typed line of text per Block or line. Where there is a choice of entering telephone numbers or facsimile numbers, and you wish to provide a facsimile number instead of a telephone number, identify the facsimile number with the letter “F” immediately after the number (e.g., 022-358-0-123456F). If you are completing this form to request classification of your item, you must complete Blocks 1 through 5, 14, 22 (a), (b), (c), (d), and (i), 24, and 25 only.
Block 1: Contact Person. Enter the name of the person who can answer questions concerning the application.
Block 2: Telephone. Enter the telephone number of the person who can answer questions concerning the application.
Block 3: Facsimile. Enter the facsimile number, if available, of the person who can answer questions concerning the application.
Block 4: Date of Application. Enter the current date.
Block 5: Type of Application.
Block 6: Documents submitted with Application. Review the documentation you are required to submit with your application in accordance with the provisions of part 748 of the EAR, and mark all applicable Boxes with an (X).
Mark the Box “Foreign Availability” with an (X) if you are submitting an assertion of foreign availability with your license application. See part 768 of the EAR for instructions on foreign availability submissions.
Mark the “Tech. Specs.” box with an (X) if you are submitting descriptive literature,
Block 7: Documents on File with Applicant. Certify that you have retained on file all applicable documents as required by the provisions of part 748 by placing an (X) in the appropriate Box(es).
Block 8: Special Comprehensive License. Complete this Block only if you are submitting an application for a Special Comprehensive License in accordance with part 752 of the EAR.
Block 9: Special Purpose. Complete this block for certain items or types of transactions only if specifically required in Supplement No. 2 to this part.
Block 10: Resubmission Application Control Number. If your original application was returned without action (RWA), provide the Application Control Number. This does not apply to applications returned without being registered.
Block 11: Replacement License Number. If you have received a license for identical items to the same ultimate consignee, but would like to make a modification that is not excepted in § 750.7(c) of the EAR, to the license as originally approved, enter the original license number and complete Blocks 12 through 25, where applicable. Include a statement in Block 24 regarding what changes you wish to make to the original license.
Block 12: Items Previously Exported. This Block should be completed only if you have marked the “Reexport” box in Block 5. Enter the license number, License Exception symbol (for exports under General Licenses, enter the appropriate General License symbol), or other authorization under which the items were originally exported, if known.
Block 13: Import/End-User Certificate. Enter the name of the country and number of the Import or End User Certificate obtained in accordance with provisions of this part.
Block 14: Applicant. Enter the applicant's name, street address, city, state/country, and postal code. Provide a complete street address. P.O. Boxes are not acceptable. Refer to § 748.5(a) of this part for a definition of “applicant”. If you have marked “Export” in Block 5, you must include your company's Employer Identification Number unless you are filing as an individual or as an agent on behalf of the exporter. The Employee Identification Number is assigned by the Internal Revenue Service for tax identification purposes. Accordingly, you should consult your company's financial officer or accounting division to obtain this number.
Block 15: Other Party Authorized to Receive License. If you would like BIS to transmit the approved license to another party designated by you, complete all information in this Block, including name, street address, city, country, postal code and telephone number. Leave this space blank if the license is to be sent to the applicant. Designation of another party to receive the license does not alter the responsibilities of the applicant.
Block 16: Purchaser. Enter the purchaser's complete name, street address, city, country, postal code, and telephone or facsimile number. Refer to § 748.5(c) of this part for a definition of “purchaser”. If the purchaser is also the ultimate consignee, enter the complete name and address. If your proposed transaction does not involve a separate purchaser, leave Block 16 blank.
Block 17: Intermediate consignee. Enter the intermediate consignee's complete name, street address, city, country, postal code, and telephone or facsimile number. Provide a complete street address, P.O. Boxes are not acceptable. Refer to § 748.5(d) of this part for a definition of “intermediate consignee”. If this party is identical to that listed in Block 16, enter the complete name and address. If your proposed transaction does not involve use of an intermediate consignee, enter “None”. If your proposed transaction involves more than one intermediate consignee, provide the same information in Block 24 for each additional intermediate consignee.
Block 18: Ultimate Consignee. This Block must be completed if you are submitting a license application. Enter the ultimate consignee's complete name, street address, city, country, postal code, and telephone or facsimile number. Provide a complete street address, P.O. Boxes are not acceptable. The ultimate consignee is the party who will actually receive the item for the end-use designated in Block 21. Refer to § 748.5(e) of this part for a definition of “ultimate consignee”. A bank, freight forwarder, forwarding agent, or other intermediary may not be identified as the ultimate consignee. Government purchasing organizations are the sole exception to this requirement. This type of entity may be identified as the government entity that is the actual ultimate consignee in those instances when the items are to be transferred to the government entity that is the actual end-user, provided the actual end-user and end-use is clearly identified in Block 21 or in the additional documentation attached to the application.
If your application is for the reexport of items previously exported, enter the new ultimate consignee's complete name, street address, city, country, postal code, and telephone or facsimile number. Provide a complete street address, P.O. Boxes are not acceptable. If your application involves a temporary export or reexport, the applicant should be shown as the ultimate consignee in care of a person or entity who will have control over the items abroad.
Block 19: End-User. Complete this Block only if the ultimate consignee identified in
Block 20: Original Ultimate Consignee. If your application involves the reexport of items previously exported, enter the original ultimate consignee's complete name, street address, city, country, postal code, and telephone or facsimile number. Provide a complete street address, P.O. Boxes are not acceptable. The original ultimate consignee is the entity identified in the original application for export as the ultimate consignee or the party currently in possession of the items.
Block 21: Specific End-Use: This Block must be completed if you are submitting a license application. Provide a complete and detailed description of the end-use intended by the ultimate consignee and/or end-user(s). If you are requesting approval of a reexport, provide a complete and detailed description of the end-use intended by the new ultimate consignee or end-user(s) and indicate any other countries for which resale or reexport is requested. If additional space is necessary, use Block 21 on Form BIS-748P-A or B. Be specific—vague descriptions such as “research”, “manufacturing”, or “scientific uses” are not acceptable.
Block 22: For a license application, you must complete each of the sub-blocks contained in this Block. If you are submitting a classification request, you need not complete Blocks (e), (f), (g), and (h). If you wish to export, reexport, or have BIS classify more than one item, use Form BIS-748P-A for additional items.
(a) ECCN. Enter the Export Control Classification Number (ECCN) that corresponds to the item you wish to export or reexport. If you are asking BIS to classify your item, provide a recommended classification for the item in this Block.
(b) CTP. You must enter the “Adjusted Peak Performance” (“APP”) in this Block if your application includes a digital computer or equipment containing a computer as described in Supplement No. 2 to this part. Instructions on calculating the APP are contained in a Technical Note at the end of Category 4 in the CCL.
(c) Model Number. Enter the correct model number for the item.
(d) CCATS Number. If you have received a classification for this item from BIS, provide the CCATS number shown on the classification issued by BIS.
(e) Quantity. Identify the quantity to be exported or reexported, in terms of the “Unit” identified for the ECCN entered in Block 22(a). If the “Unit” for an item is “$ value”, enter the quantity in units commonly used in the trade.
(f) Units. The “Unit” paragraph within each ECCN will list a specific “Unit” for those items controlled by the entry. The “Unit” must be entered on all license applications submitted to BIS. If an item is licensed in terms of “$ value”, the unit of quantity commonly used in the trade must also be shown on the license application. This Block may be left blank on license applications only if the “Unit” for the ECCN entered in Block 22(a) is shown as “N/A” on the CCL.
(g) Unit Price. Provide the fair market value of the items you wish to export or reexport. Round all prices to the nearest whole dollar amount. Give the exact unit price only if the value is less than $0.50. If normal trade practices make it impractical to establish a firm contract price, state in Block 24 the precise terms upon which the price is to be ascertained and from which the contract price may be objectively determined.
(h) Total Price. Provide the total price of the item(s) described in Block 22(j).
(i) Manufacturer. Provide the name only of the manufacturer, if known, for each of the items you wish to export, reexport, or have BIS classify, if different from the applicant.
(j) Technical Description. Provide a description of the item(s) you wish to export, reexport, or have BIS classify. Provide details when necessary to identify the specific item(s), include all characteristics or parameters shown in the applicable ECCN using measurements identified in the ECCN (e.g., basic ingredients, composition, electrical parameters, size, gauge, grade, horsepower, etc.). These characteristics must be identified for the items in the proposed transaction when they are different than the characteristics described in promotional brochure(s).
Block 23: Total Application Dollar Value. Enter the total value of all items contained on the application in U.S. Dollars. The use of other currencies is not acceptable.
Block 24: Additional Information. Enter additional data pertinent to the application as required in the EAR. Include special certifications, names of parties of interest not disclosed elsewhere, explanation of documents attached, etc. Do not include information concerning Block 22 in this space.
If your application represents a previously denied application, you must provide the Application Control Number from the original application.
If you are requesting BIS to classify your product, use this space to explain why you believe the ECCN entered in Block 22(a) is appropriate. This explanation must contain an analysis of the item in terms of the technical control parameters specified in the appropriate ECCN. If you have not identified a recommended classification in Block 22(a),
If additional space is necessary, use Block 24 on Form BIS-748P-A or B.
Block 25: You, as the applicant or duly authorized agent of the applicant, must manually sign in this Block. Rubber-stamped or electronic signatures are not acceptable. If you are an agent of the applicant, in addition to providing your name and title in this Block, you must enter your company's name in Block 24. Type both your name and title in the space provided.
In addition to the instructions contained in Supplement No. 1 to part 748, you must also ensure that the additional requirements for certain items or types of transactions described in this supplement are addressed in your license application. All other blocks not specifically identified in this supplement must be completed in accordance with the instructions contained in Supplement No. 1 to part 748. The term “Block” used in this supplement relates to Form BIS-748P, unless otherwise noted.
(a)
(1) Facts relating to the grade, form, concentration, mixture(s), or ingredients as may be necessary to identify the item accurately, and;
(2) The Chemical Abstract Service Registry (C.A.S.) numbers, if they exist, must be identified.
(b)
(c)
If your license application involves items controlled by both Category 4 and Category 5, your license application must be submitted under Category 5—see Category 5 Part 1 Notes 1 and 2 and Part 2 Note 1. License applications involving computers controlled by Category 4 must identify an Adjusted Peak Performance (APP) in Block 22(b). If the principal function is telecommunications, an APP is not required. Computers, related equipment, or software performing telecommunication or local area network functions will be evaluated against the telecommunications performance characteristics of Category 5 Part 1, while information security commodities, software and technology will be evaluated against the information security performance characteristics of Category 5 Part 2.
(1) Requirements for license applications that include computers. If you are submitting a license application to export or reexport computers or equipment containing computers to destinations in Country Group D:1 (See Supplement No. 1 to part 740 of the EAR), or to upgrade existing computer installations in those countries, you must also include technical specifications and product brochures to corroborate the data supplied in your license application, in addition to the APP in Block 22(b).
(2) Security Safeguard Plan requirement. The United States requires security safeguards for exports, reexports, and in-country transfers of High Performance Computers (HPCs) to ensure that they are used for peaceful purposes. If you are submitting a license application for an export, reexport, or in-country transfer of a high performance computer to or within a destination in Computer Tier 3 (see § 740.7(c)(1) of the EAR) or to Cuba, Iran, North Korea, Sudan, and Syria you must include with your license application a security safeguard plan signed by the end-user, who may also be the ultimate consignee. This requirement also applies to exports, reexports, and in-country transfers of components or electronic assemblies to upgrade existing “computer” installations in those countries. A sample security safeguard plan is posted on BIS's Web page at
(d)
Each gift parcel must meet the terms and conditions described for
(1) In Block 16, enter the word “None”;
(2) In Block 18, enter the word “Various” instead of the name and address of a single ultimate consignee;
(3) In Block 21, enter the phrase “For personal use by recipients”.
(4) In Block 22(e), indicate a reasonable estimate of the number of parcels to be shipped during the validity of the license;
(5) In Block 22(j), enter the phrase “Gift Parcels”;
(6) In Block 23, indicate a reasonable value approximation proportionate to the quantity of gift parcels identified in Block 22(e); and
(e)
(1) In Block 9, enter the phrase “Intransit Shipment”;
(2) In Block 24, enter the name and address of the foreign consignor who shipped the items to the United States and state the origin of the shipment;
(3) Any available evidence showing the approval or acquiescence of the exporting country (or the country of which the exporter is a resident) for shipments to the proposed ultimate destination. Such evidence may be in the form of a Transit Authorization Certificate; and
(4) Any support documentation required by § 748.9 of this part for the country of ultimate destination.
(f)
(g)
(i) The items to be exported or replicas thereof (“replicas” refers to items produced abroad based on physical examination of the item originally exported, matching it in all critical design and performance parameters), will not be used in any of the activities described in § 744.2(a) of the EAR; and
(ii) Written authorization will be obtained from the BIS prior to reexporting the items, unless they are destined to Canada or would be eligible for export from the United States to the new country of destination under NLR based on Country Chart NP Column 1.
(2)
(i) In Block 7, place an (X) in the box titled “Nuclear Certification”;
(ii) In Block 9, enter the phrase “NUCLEAR CONTROLS”;
(iii) In Block 21, provide, if known, the specific geographic locations of any installations, establishments, or sites at which the items will be used;
(iv) In Block 22(j), if applicable, include a description of any specific features of design or specific modifications that make the item capable of nuclear explosive activities, or of safeguarded or unsafeguarded nuclear activities as described in § 744.2(a)(3) of the EAR; and
(v) In Block 24, if your license application is being submitted because you know that your transaction involves a nuclear end-use described in § 744.2 of the EAR, you must fully explain the basis for your knowledge that the items are intended for the purpose(s) described § 744.2 of the EAR. Indicate, if possible, the specific end-use(s) the items will have in designing, developing, fabricating, or testing nuclear weapons or nuclear explosive devices or in designing, constructing, fabricating, or operating the facilities described in § 744.2(a)(3) of the EAR.
(h)
(i) For numerical control devices and motion control boards:
(A) Make and model number of the control unit;
(B) Description and internal configuration of numerical control device. If the device is a computer with motion control board(s), then include the make and model number of the computer;
(C) Description of the manner in which a computer will be connected to the CNC unit for on-line processing of CAD data. Specify the make and model of the computer;
(D) Number of axes the control unit is capable of simultaneously controlling in a coordinated contouring mode, and type of interpolation (linear, circular, and other);
(E) Minimum programmable increment;
(F) A description and an itemized list of all software/firmware to be supplied with the control device or motion control board, including software/firmware for axis interpolation function and for any programmable control unit or device to be supplied with the control unit;
(G) Description of capabilities related to “real time processing” and receiving computer aided-design;
(H) A description of capability to accept additional boards or software that would permit an upgrade of the electronic device or motion control board above the control levels specified in ECCN 2B001; and
(I) Specify if the electronic device has been downgraded, and if so can it be upgraded in future.
(ii) For numerically controlled machine tools and dimensional inspection machines:
(A) Name and model number of machine tool or dimensional inspection machine;
(B) Type of equipment, e.g., horizontal boring machine, machining center, dimensional inspection machine, turning center, water jet, etc.;
(C) Description of the linear and rotary axes capable of being simultaneously controlled in a coordinated contouring mode, regardless of the fact that the coordinated movement of the machine axis may be limited by the numerical control unit supplied by the machine tool;
(D) Maximum workpiece diameter for cylindrical grinding machines;
(E) Motion (camming) of the spindle axis measured in the axial direction in one revolution of the spindle, and a description of the method of measurement for turning machine tools only;
(F) Motion (run out) of the spindle axis measured in the radial direction in one revolution of the spindle, and a description of the method of measurement;
(G) Overall positioning accuracy in each axis, and a description of the method for measurement; and
(H) Slide motion test results.
(i)
(1)
(2)
(i) In Block 9, enter the phrase “Parts and Components”;
(ii) In Block 18, enter the name, street address, city and country of the foreign party who will be receiving the foreign-made product. If you are requesting approval for multiple countries or consignees enter “Various” in Block 18, and list the specific countries, Country Groups, or geographic areas in Block 24;
(iii) In Block 20, enter the name, street address, city, and country of the foreign party who will be exporting the foreign-made product incorporating U.S. origin parts, components or materials;
(iv) In Block 21, describe the activity of the ultimate consignee identified in Block 18 and the end-use of the foreign-made product. Indicate the final configuration if the product is intended to be incorporated in a larger system. If the end-use is unknown, state “unknown” and describe the general activities of the end-user;
(v) In Block 22(e), specify the quantity for each foreign-made product. If this information is unknown, enter “Unknown” in Block 22(e);
(vi) In Block 22(h), enter the digit “0” for each foreign-made product;
(vii) In Block 22(j), describe the foreign-made product that will be exported, specifying type and model or part number. Attach brochures or specifications, if available. Show as part of the description the unit value, in U.S. dollars, of the foreign-made product (if more than one foreign-made product is listed on the license application, specify the unit value for each type/model/part number). Also include a description of the U.S. content (including the applicable Export Control Classification Number(s)) and
(viii) Include separately in Block 22(j) a description of any U.S. origin spare parts to be reexported with the foreign-made product, if they exceed the amount allowed by § 740.10 of the EAR. Enter the quantity, if appropriate, in Block 22(e). Enter the ECCN for the spare parts in Block 22(a) and enter the value of the spare parts in Block 22(h);
(ix) In Block 23, enter the digit “0”;
(x) If the foreign-made product is the direct product of U.S. origin technology that was exported or reexported subject to written assurance, a request for waiver of that assurance, if necessary, may be made in Block 24. If U.S. origin technology will accompany a shipment to a country listed in Country Group D:1 or E:2 (see Supplement No. 1 to part 740 of the EAR) describe in Block 24 the type of technology and how it will be used.
(j)
(i) In Block 18, enter the name, street address, city, and country of the shipyard where vessel is being constructed;
(ii) In Block 22(j), state the length of the vessel for a vessel under 12 m (40 ft) in length. For a vessel 12 m (40 ft) in length or over, provide the following information (if this information is unknown, enter “Unknown” in this Block):
(A) Hull number and name of vessel;
(B) Type of vessel;
(C) Name and business address of prospective owner, and the prospective owner's nationality; and
(D) Country of registry or intended country of registry.
(2)
(i) In Block 18, enter the name and address of the plant where the aircraft is being constructed;
(ii) In Block 22(j), enter the following information (if this information is unknown, enter “Unknown” in this Block):
(A) Type of aircraft and model number;
(B) Name and business address of prospective owner and his nationality; and
(C) Country of registry or intended country of registry.
(3)
(i) In Block 18, enter the name of the owner, the name of the vessel, if applicable, and port or point where the items will be taken aboard;
(ii) In Block 18, enter the following statement if, at the time of filing the license application, it is uncertain where the vessel or aircraft will take on the items, but it is known that the items will not be shipped to a country listed in Country Group D:1 or E:2 (see Supplement No. 1 to part 740 of the EAR):
Uncertain; however, shipment(s) will not be made to Country Groups D:1 or E:2.
(iii) Provide information as described in paragraph (j)(1)(ii) of this supplement for vessels or information contained in paragraph (j)(2)(ii) of this supplement for aircraft.
(k)
(l)
(m)
(1) Specify if the robot is equipped with a vision system and its make, type, and model number;
(2) Specify if the robot is specially designed to comply with national safety standards for explosive munitions environments;
(3) Specify if the robot is specially designed for outdoor applications and if it meets military specifications for those applications;
(4) Specify if the robot is specially designed for operating in an electro-magnetic pulse (EMP) environment;
(5) Specify if the robot is specially designed or rated as radiation-hardened beyond that necessary to withstand normal industrial (i.e., non-nuclear industry) ionizing radiation, and its rating in grays (Silicon);
(6) Describe the robot's capability of using sensors, image processing or scene analysis to generate or to modify robot program instructions or data;
(7) Describe the manner in which the robot may be used in nuclear industry/manufacturing; and
(8) Specify if the robot controllers, end-effectors, or software are specially designed for robots controlled by ECCN 2B007, and why.
(n)
(o)
(2)
(i) The identities of all parties to the transaction;
(ii) The exact project location where the technology will be used;
(iii) The type of technology to be exported or reexported;
(iv) The form in which the export or reexport will be made;
(v) The uses for which the data will be employed;
(vi) An explanation of the process, product, size, and output capacity of all items to be produced with the technology, if applicable, or other description that delineates, defines, and limits the data to be transmitted (the “technical scope”); and
(vii) The availability abroad of comparable foreign technology.
(3)
(ii)
(A) A description of the foreign project for which the technology will be furnished;
(B) A description of the scope of the proposed services to be offered by the applicant, his consultant(s), and his subcontractor(s), including all the design data that will be disclosed;
(C) The names, addresses and titles of all personnel of the applicant, the applicant's consultant(s) and subcontractor(s) who will discuss or disclose the technology or be involved in the design or development of the technology;
(D) The beginning and termination dates of the period of time during which the technology will be discussed or disclosed and a proposed time schedule of the reports the applicant will submit to BIS, detailing the technology discussed or disclosed during the period of the license;
(E) The following certification:
I (We) certify that if this license application is approved, I (we) and any consultants, subcontractors, or other persons employed or retained by us in connection with the project licensed will not discuss with or disclose to others, directly or indirectly, any technology relating to U.S. naval nuclear propulsion plants. I (We) further certify that I (we) will furnish to the Bureau of Industry and Security all reports and information it may require concerning specific transmittals or
(F) A statement of the steps that you will take to assure that personnel of the applicant, the applicant's consultant(s) and subcontractor(s) will not discuss or disclose to others technology relating to U.S. naval nuclear propulsion plants; and
(G) A written statement of assurance from the foreign importer as described in paragraph (o)(3)(i) of this supplement.
(p)
The items described on this license application are to be temporarily exported (or reexported) for (state the purpose e.g., demonstration, testing, exhibition, etc.), used solely for the purpose authorized, and returned to the United States (or originating country) as soon as the temporary purpose has ended, but in no case later than one year of the date of export (or reexport), unless other disposition has been authorized in writing by the Bureau of Industry and Security.
(q)
(r)
(s)
(i) In Block 1 through 3, insert name, telephone, and facsimile of the person that is most knowledgeable about the foreign national;
(ii) In Block 4 (Date of Application), enter the date;
(iii) In Block 5 (Type of Application), place an “X” in the box marked “Other”;
(iv) In Block 6 (Documents Submitted with Application), place an “X” in “Other” to signify that you are submitting the Foreign National Review Support Statement(s) with the BIS-748P, and place an “X” in “BIS-748P-B” if you are submitting this FNR for multiple foreign nationals;
(v) In Block 9 (Special Purpose), insert the phrase “Foreign National Review (FNR)”;
(vi) In Block 14 (Applicant), insert the name of the applicant;
(vii) In Block 18 (Ultimate Consignee), insert the name and address of the Foreign National;
(viii) In Block 21 (Specific End-Use), insert any information which may be of interest regarding the export of the technology or source code;
(ix) In Block 24 (Additional Information), insert contact email information;
(x) In Block 25 (Signature), sign the BIS-748P, and insert the name and title of the signer; and
(xi) All other Blocks on the application may be left blank.
(2)
(t)
(1) Case number (Z number): Zxxxxxx;
(2) Name, and all other names ever used;
(3) Date of birth: dd/mm/yyyy;
(4) Place of birth: city, state/province, and country;
(5) U.S. Address: street address, city, state, zip;
(6) Overseas Address: street address, city, province, country;
(7) Visa type (with expiration date and place issued, if available): type, dd/mm/yyyy, city, country;
(8) I-94 No. xxxxxxx, dd/mm/yyyy;
(9) Passport and Country of Issue: xxxxxxxx, country;
(10) U.S. Education (schools, degrees, and dates received) (if any): degree, subject, university, city, state, country, month/year-month/year;
(11) Foreign Education: degree, subject, university, city, state, country, month/year-month/year;
(12) Employer (applicant) and address: company, street address, city, state, zip;
(13) Detailed explanation of position requirements and individual's qualifications related to the position; and
(14) Prior Employment Record, (including overseas employment) addresses and dates; explain any periods of unemployment.
(u)
(v)
All information must be typed or legibly printed in each appropriate Block or Box.
Block 1: Ultimate Consignee. The Ultimate Consignee must be the person abroad who is actually to receive the material for the disposition stated in Block 2. A bank, freight forwarder, forwarding agent, or other intermediary is not acceptable as the Ultimate Consignee.
Block 2: Disposition or Use of Items by Ultimate Consignee named in Block 1. Place an (X) in “A.,” “B.,” “C.,” “D.,” and “E.,” as appropriate, and fill in the required information.
Block 3: Nature of Business of Ultimate Consignee named in Block 1. Complete both “A” and “B”.
Possible choices for “A” include: broker, distributor, fabricator, manufacturer, wholesaler, retailer, value added reseller, original equipment manufacturer, etc.
Possible choices for “B” include: contractual, franchise, distributor, wholesaler, continuing and regular individual business, etc.
Block 4: Additional Information. Provide any other information not appearing elsewhere on the form such as other parties to the transaction, and any other material facts that may be of value in considering license applications supported by this statement.
Block 5: Assistance in Preparing Statement. Name all persons, other than employees of the ultimate consignee or purchaser, who assisted in the preparation of this form.
Block 6: Ultimate Consignee. Enter the requested information and sign the statement in ink. (For a definition of ultimate consignee, see § 748.5(e) of this part.)
Block 7: Purchaser. This form must be signed in ink by the Purchaser, if the Purchaser is not the same as the Ultimate Consignee identified in Block 1. (For a definition of purchaser, see § 748.5(c) of this part.)
Block 8: Certification for Exporter. This Block must be completed to certify that no correction, addition, or alteration on this form was made subsequent to the signing by the Ultimate Consignee in Block 6 and Purchaser in Block 7.
The United States participates in an Import Certificate/Delivery Verification procedure. Under this procedure, U.S. importers are sometimes required to provide their foreign suppliers with an U.S. International Import Certificate that is validated by the U.S. Government. This certificate tells the government of the exporter's country that the items covered by the certificate will be imported into the U.S. Economy and will not be reexported except as authorized by U.S. export control regulations. In addition, in some cases, the exporter's government may require a delivery verification. Under this procedure, the U.S. Customs Service validates a certificate confirming that the items have entered the U.S. economy. The U.S. importer must return this certificate to the foreign exporter.
This supplement establishes the procedures and requirements of BIS with respect to both of these programs. Paragraph (a) of this supplement contains the requirements and procedures of the U.S. International Import Certificate procedure. Paragraph (b) of this supplement contains the requirements and procedures of the Delivery Verification procedure.
(a) U.S. International Import Certificates. If you are a U.S. importer, a foreign supplier may request you to obtain a U.S. import certificate. The reason for this request is that the exporter's government requires a U.S. import certificate as a condition to issuing an export license. To obtain such a certificate you will have to fill in and execute the U.S. International Import Certificate form (Form BIS-645P/ATF-4522/DSP-53) and submit it to the U.S. government agency that has jurisdiction over the items you are importing. In doing so, you will be making a representation to the United States Government that you will import the items described in the certificate into the United States or if not so imported, you will not divert, transship or reexport them to another destination with the explicit approval of the U.S. government agency that has jurisdiction over those items. (Representations that items will be entered into the U.S. do not preclude the temporary unloading of items in a foreign trade zone for subsequent entry into the economy of the U.S.) If the items described in the certificate are subject to U.S. Department of Commerce jurisdiction, the Department will validate the certificate and return it to you. You may then send the certificate to your foreign supplier. In this way the government of the exporting country is assured that the items will become subject to the export control laws of the United States.
(1) Items for which the U.S. Department of Commerce issues U.S. International Import Certificates and forms to use. The Department of Commerce issues U.S. International Import Certificates for the following types of items.
(i) Items controlled for National Security reasons. Items under the export licensing jurisdiction of BIS that are identified as controlled for national security reasons on the Commerce Control List (Supplement No. 1 to part 774 of the EAR). You will need to submit in triplicate a completed Form BIS-645P/ATF-4522/DSP-53;
(ii) Nuclear equipment and materials. Items subject to the export licensing jurisdiction of the Nuclear Regulatory Commission for nuclear equipment and materials. (see 10 CFR part 110). You will need to submit in quadruplicate a completed Form BIS-645P/ATF-4522/DSP-53; and
(iii) Munitions Items. Items listed on the U.S. Munitions List (see 22 CFR part 121) that do not appear on the more limited U.S. Munitions Import List (27 CFR 47.21). You will need to submit in triplicate a completed Form BIS-645P. For triangular transactions (See paragraph (a)(5) of this supplement) involving items on the U.S. Munitions List, you must contact the Department of State,
(2) Where to submit forms. U.S. International Import Certificates and requests to amend certificates may be presented for validation either in person or by mail at the following locations.
(i) By mail to the Bureau of Industry and Security, P.O. Box 273, Washington D.C. 20044, Attn: Import Certificate Request; or
(ii) In person or by mail at one of the following Department of Commerce U.S. and Foreign Commercial Service District Offices:
(3) U.S. International Import Certificate validity periods. The U.S. International Import Certificate must be submitted to the foreign government within six months from the date of certification by the U.S. Department of Commerce. The expiration of this six-month period in no way affects the responsibility of the importer to fulfill the commitments made in obtaining the certificate. If the certificate is not presented to the government of the exporting country before the expiration of its validity period, the exporter must apply for a new certificate. The original unused U.S. International Import Certificate must be returned to BIS at the address specified in paragraph (a)(2)(i) of this supplement.
(4) Statements on the certificate or amendments are representations to the U.S. Government which continue in effect.
(i) All statements and representations made in a U.S. International Import Certificate or an amendment thereto, will be deemed to be continuing in nature until the transaction described in the certificate is completed and the items are delivered into the economy of the importing country.
(ii) Any change of fact or intention in regard to the transaction described in the certificate shall be promptly disclosed to BIS by the U.S. importer by presentation of an amended certificate. The amended certificate must describe all of the changes and be accompanied by the original certificate bearing the certification of BIS. If the original certificate has been transferred to the foreign exporter, you must, where possible, attempt to obtain the original certificate prior to applying for an amendment. If the original certificate is unobtainable because the foreign exporter has submitted it to the appropriate foreign government, or for any other reason, then you must submit a written statement with your amendment giving the reasons for your failure to submit the original certificate.
(5) Certificates for Triangular transaction (items will not enter the U.S. or applicant is not sure that they will enter the United States).
(i) In accordance with international practice, BIS will, upon request, stamp the certificate with a triangular symbol as notification to the government of the exporting country that the U.S. importer is uncertain whether the items will be imported into the U. S. or knows that the items will not be imported into the U.S., but that, in any case, the items will not be delivered to any other destination except in accordance with the EAR.
(ii) The triangular symbol on a certificate U.S. International Import Certificate is not, in and of itself, an approval by BIS to transfer or sell items to a foreign consignee. Note that a triangular Certificate will not be issued covering foreign excess property sold abroad by the U.S. Department of Defense.
(6) Approval to export items to a foreign consignee prior to delivery under a U.S. International Import Certificate. The written approval of BIS is required before items covered by a U.S. International Import Certificate (whether or not bearing a triangular symbol) may be shipped to a destination other than the U.S. or Canada or sold to a foreign purchaser, and before title to or possession of such items may be transferred to a foreign transferee. This requirement does not apply after the items have been delivered in accordance with the undertaking set forth in the Certificate or if at the time of such shipment, sale, passage of possession or passage of title, a License Exception or a NLR provision of the EAR would authorize the transaction.
(i) If prior approval is required, a letter requesting authorization to release the shipment shall be submitted to BIS at the address listed in paragraph (a)(2)(i) of this supplement.
(ii) The letter must contain the certificate number; date issued; location of the issuing office; names, addresses, and identities of all parties to the complete transaction; and the quantity, dollar value, and description of the items. The letter must be accompanied by the U.S. International Import Certificate, and all other documentation required by the EAR for the item and country of ultimate destination, as identified in part 748 of the EAR. If requirements stated in part 748 of the EAR do not apply to your transaction,
(iii) Where the letter request is approved and is supported by a foreign import certificate, no further approval from BIS is required for the purchaser or transferee to resell or again transfer the items. However, where BIS approves a request that was not supported by a foreign import certificate, the person to whom approval is granted is required to inform the purchaser or transferee, in writing, that the items are to be shipped to the approved destination only and that no other disposition of the items is permitted without the approval of BIS.
(iv) If the transaction is approved, a validated letter of approval will be sent to the U.S. purchaser for retention in his records. Where a DV or other official government confirmation of delivery is required, the letter will so indicate.
(v) If the items covered by a certificate have been imported into a destination other than the U.S. and the foreign exporter of the items requests a Delivery Verification, the person who obtained the certificate must obtain a DV from the person to whom the items were delivered in the actual importing country. (If a DV is unobtainable, other official government confirmation of delivery must be obtained.) The DV or other official government confirmation of delivery must be submitted to BIS together with an explanatory letter giving the U.S. International Import Certificate number, date issued, and location of issuing office. BIS will then issue Form ITA-6008, Delivery Compliance Notice, in two copies, the original of which must be forwarded to the country of origin in order to serve as evidence to the exporting country that the requirements of the U.S. Government have been satisfied with respect to delivery of the items.
(vi) Delivery, sale, or transfer of items to another U.S. purchaser.
(A) Items covered by a U.S. International Import Certificate may not be sold, and title to or possession of such items may not be transferred, to another U.S. purchaser or transferee before the items are delivered to the U.S. (or to an approved foreign destination, as provided by paragraph (a)(5) of this supplement), except in accordance with the provisions described in paragraph (a)(6) of this supplement. The provisions of this paragraph do not apply after the items have been delivered in accordance with the undertaking set forth in the certificate.
(B) Resale or transfer to another U.S. purchaser or transferee requires the prior approval of BIS only in cases where the buyer or transferee is listed in Supplement No. 1 to part 766 of the EAR. However, you, as the person who obtained the certificate are required to notify BIS of any change in facts or intentions relating to the transaction, and in all cases you will be held responsible for the delivery of the items in accordance with the EAR. You are required in all cases to secure, prior to sale or transfer, and to retain in your files in accordance with the recordkeeping provisions contained in part 762 of the EAR, written acceptance by the purchaser or transferee of:
(
(
(iii) The responsibility of the certificate holder for obtaining a DV also applies to those cases where the items are resold to a U.S. purchaser (See paragraph (b)(1) of this supplement.
(vii) Reexport or transshipment of items after delivery to U.S. Items imported into the U.S. under the provisions of a U.S. International Import Certificate may not be reexported to any destination under the
(viii) Lost or destroyed U.S. International Import Certificates. If a U.S. International Import Certificate is lost or destroyed, a duplicate copy may be obtained by the person in the U.S. who executed the original U.S. International Import Certificate by submitting to any of the offices listed in paragraph (a)(2)(i) of this supplement new Form BIS-645P/ATF-4522/DSP-53 in the same way as an original request, except that the forms shall be accompanied by a letter detailing the circumstances under which the original certificate was lost or destroyed and certifying:
(A) That the original U.S. International Import Certificate No. ___, dated ___, issued to (name and address of U.S. importer) for import from (foreign exporter's name and address) has been lost or destroyed; and
(B) That if the original U.S. International Import Certificate is found, the applicant agrees to return the original or duplicate of the certificate to the Bureau of Industry and Security.
(ix) Unused U.S. International Import Certificates. If the transaction will not be completed and the U.S. International Import Certificate will not be used, return the certificate for cancellation to BIS at the address listed in paragraph (a)(2)(i) of this supplement.
(b) Delivery Verification Certificate. U.S. importers may be requested by their foreign suppliers to furnish them with a certified Form BIS-647P, Delivery Verification Certificate, covering items imported into the
(1) The responsibility of a person or firm executing a U.S. International Import Certificate for providing the foreign exporter with confirmation of delivery of the items includes instances where the items are resold or transferred to another U.S. person or firm prior to actual delivery to the U.S. or to an approved foreign destination. The person who executed the U.S. International Import Certificate shall secure in writing from the U.S. purchaser or transferee, and retain in your files in accordance with the recordkeeping provisions stated in part 762 of the EAR:
(i) Acceptance of the obligation to provide the purchaser or transferee with either the Delivery Verification (or other official government confirmation of delivery if a Delivery Verification is unobtainable) or assurance that this document was submitted to BIS; and
(ii) An undertaking that each succeeding U.S. transferee or purchaser will assume the same obligation or assurance. In each case the seller or transferor must transmit to the U.S. purchaser or transferee the U.S. International Import Certificate number covering the export from the foreign country and request that they pass it on to any other U.S. purchasers or transferees.
(2) Completion and certification of Delivery Verification Certificates. If you are requested by your foreign exporter to provide a Delivery Verification, you must obtain Form BIS-647P from a U.S. customs office or one of the offices listed in paragraph (a)(2) of this supplement and complete all blocks (except those below the line titled “To be completed by U.S. Customs Service”) on the form. The language used in the block titled “Description of Goods” must describe the items in the same terms as those shown on the applicable U.S. International Import Certificate. Upon completion Form BIS-647P must be presented, in duplicate, to a U.S. customs office. The U.S. customs office will certify Form BIS-647P only where the import is made under a warehouse or consumption entry.
(3) Disposition of certified Delivery Verification Certificates. The importer must send the original certified Delivery Verification Certificate to the foreign exporter or otherwise dispose of it in accordance with the instructions of the exporting country. The duplicate copy will be retained by the U.S. customs office.
(4)(i) Issuance of a U.S. Delivery Compliance Notice in lieu of a Delivery Verification Certificate. If you are requested to provide a Delivery Verification Certificate but do not wish to disclose the name of your customer to the foreign exporter (e.g., in the event that the items are resold or transferred to another person or firm before the items enter the U.S.), you may submit an originally completed Form BIS-647P together with an explanatory letter requesting a Delivery Compliance Notice, to BIS at the address listed in (a)(2)(i) of this supplement.
(ii) BIS will provide you with a notice signifying that the items were imported into the U.S. and that a satisfactory DV has been submitted to BIS. You must then forward the original notice to your foreign exporter for submission to the foreign government. A copy of the notice should be retained in your files in accordance with the recordkeeping provisions stated in part 762 of the EAR.
(5)(i) Lost or destroyed Delivery Verification Certificate. When a Delivery Verification Certificate is lost or destroyed, the U.S. importer must submit a letter to BIS at the address listed in paragraph (a)(2)(i) of this supplement certifying that:
(A) The original Delivery Verification Certificate has been lost or destroyed;
(B) The circumstances under which it was lost or destroyed;
(C) The type of customs entry (warehouse or consumption), entry number, and date of entry; and
(D) The number and date of the related U.S. International Import Certificate.
(ii) BIS will, in applicable cases, notify the exporting government that a Delivery Verification Certificate been issued.
(c) Penalties and sanctions for violations. The enforcement provisions of part 764 and Supplement No. 2 to part 736 of the EAR apply to transactions involving imports into the U.S. covered by this supplement and to both foreign and U.S. parties involved in a violation of this supplement. Any provisions of part 764 and Supplement No. 2 to part 736 of the EAR which, by their terms, relate to “exports” or “exports from the U.S.” are also deemed to apply and extend to imports into the U.S., applications for U.S. International Import Certificates (Forms BIS-645P presented to U.S. Department of Commerce for certification), U.S. International Import Certificates, and Delivery Verification Certificates, described in this supplement. (Applications the documents described in this supplement, are included
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part describes the Bureau of Industry and Security's (BIS) process for reviewing your application for a license and the applicable processing times for various types of applications. Information related to the issuance, denial, revocation, or suspension of a license or license application is provided along with the procedures on obtaining a duplicate or replacement license, the transfer of a license and shipping tolerances available on licenses. This part also contains instructions on obtaining the status of any pending application.
(a)
(b)
(a)
(b)
(2) The Departments of Defense, Energy, State, and ACDA are generally concerned with license applications involving items controlled for national security, missile technology, nuclear nonproliferation, and chemical and biological weapons proliferation reasons or destined for countries and/or end uses of concern. In particular, these agencies are concerned with reviewing license applications as follows:
(i) The Department of Defense is concerned primarily with items controlled for national security and regional stability reasons and with controls related to encryption items;
(ii) The Department of Energy is concerned primarily with items controlled for nuclear nonproliferation reasons;
(iii) The Department of State is concerned primarily with items controlled for regional stability, anti-terrorism, crime control reasons, and sanctions; and
(iv) ACDA is concerned primarily with items controlled for national security, nuclear nonproliferation, regional stability, and anti-terrorism reasons.
(v) The Department of Justice is concerned with controls relating to encryption items and items primarily useful for the surreptitious interception of wire, oral, or electronic communications.
(a)
(2) Properly completed license applications will be registered promptly upon receipt by BIS. Registration is defined as the point at which the application is entered into BIS's electronic license processing system. If your application contains deficiencies that prevent BIS from registering your application, BIS will attempt to contact you to correct the deficiencies, however, if BIS is unable to contact you, the license application will be returned without being registered. The specific deficiencies requiring return will be enumerated in a notice accompanying the returned license application. If a license application is registered, but BIS is unable to correct deficiencies crucial to processing the license application, it will be returned without action. The notice will identify the deficiencies and the action necessary to correct the deficiencies. If you decide to resubmit the license application, it will be treated as a new license application when calculating license processing time frames.
(b)
(1)
(2)
(i) The need for such a pre-license check is established by the Secretary,
(A) The pre-license check is requested within 5 days of the determination that it is necessary; and
(B) The analysis resulting from the pre-license check is completed within 5 days.
(3)
(i) The request for such assurances is sent to the Secretary of State within five days of the determination that the assurances are required;
(ii) The Secretary of State initiates the request of the relevant government within 10 days of receipt of the request for such assurances; and
(iii) The license is issued within 5 days of the Secretary's receipt of the requested assurances.
(4)
(5)
(6)
(i)
(ii)
(A) All items controlled for national security reasons;
(B) All items controlled for chemical and biological weapons proliferation reasons;
(C) All items controlled for missile technology reasons;
(D) All items controlled for nuclear nonproliferation reasons; and
(E) All items controlled by the CCL where the entry heading identifies the items controlled as those contained in the International Munitions List.
(iii)
(c)
(1) Contact the applicant if additional information is required, if the license application is improperly completed, or required support documents are missing, to request additional or corrected information;
(2) Assure the stated classification on the license application is correct;
(3) Return the license application if a license is not required with a statement notifying the applicant that a license is not required;
(4) Approve the license application or notify the applicant of the intent to deny the license application; or
(5) Refer the license application electronically along with all necessary recommendations and analysis concurrently to all agencies unless the application is subject to a Delegation of Authority. Any relevant information not contained in the electronic file will be simultaneously forwarded in paper copy.
(d)
(2) Within 30 days of receipt of the initial referral, the reviewing agency will provide BIS with a recommendation either to approve (with or without conditions or riders) or deny the license application. As appropriate, such a recommendation may be made with the benefit of consultation and/or discussions in interagency groups established to provide expertise and coordinate interagency consultation. These interagency groups consist of:
(i)
(ii)
(iii)
(e)
(f)
(ii) If any agency disagrees with the OC Chair's decision, the agency may escalate the decision by appealing to the Chair of the Advisory Committee on Export Policy for resolution. If such a request for escalation is not made within 5 days of the decision of the OC Chair, the Chair's decision will be final.
(2)
(3)
(a)
(b)
(c)
(a)
(1) The intent to deny decision;
(2) The statutory and regulatory basis for the denial;
(3) To the extent consistent with the national security and foreign policy of the United States, the specific considerations that led to the decision to deny the license application;
(4) What, if any, modifications or restrictions to the license application would allow BIS to reconsider the license application;
(5) The name of the BIS representative in a position to discuss the issues with the applicant; and
(6) The availability of appeal procedures.
(b)
(a)
(b)
(c)
(i) Decrease in unit price or total value;
(ii) Increase in price or quantity if permitted under the shipping tolerances in § 750.11 of this part;
(iii) Increase in price that can be justified on the basis of changes in point of delivery, port of export, or as a result of transportation cost, drayage, port charges, warehousing, currency fluctuations, etc.;
(iv) Establishment of unit or total price in conformance with a “price statement” on a license that permits price to be based on the market price at a specified date plus an exporter's mark-up, or like basis;
(v) Change in intermediate consignee if the new intermediate consignee is located in the country of ultimate destination as shown on the license, except a change in, or addition of, an intermediate consignee involving a consolidated shipment;
(vi) Change in continuity of shipment by unloading from carrier at a country listed in Country Group B (see Supplement No. 1 to part 740 of the EAR) port not in the country of ultimate destination, without the designation of an intermediate consignee on the shipping documents and license, provided:
(A) The purpose is to transfer the shipment to another vessel, barge, or vehicle, solely for onforwarding to the country of destination shown on the shipping documents and the license;
(B) The shipment is moving on a through bill of lading;
(C) The carrier is not registered in, owned or controlled by, or under charter or lease to a country in Country Group D:1 or E:2 (see Supplement No. 1 to part 740 of the EAR), or a national of any of these countries;
(D) The carrier retains custody of the shipment until it is delivered to the ultimate consignee; and
(E) The original bill of lading or air waybill first issued at the port of export is delivered with the shipment to the ultimate consignee;
(vii) Change in address of purchaser or ultimate consignee if the new address is located within the same country shown on the license; or
(viii) Change in ECCN, unit of quantity, or unit price, where necessary only for the purpose of conforming to an official revision in the CCL; or wording of the item description. This does not cover an actual change in the item to be shipped, or an increase in the total price or quantity on the license; or
(2)(i) For Encryption Licensing Arrangements issued by BIS for exports and reexports of items controlled under ECCN 5A002, 5B002, and 5D002, and for encryption commodities and software previously on the U.S. Munitions List and currently authorized for export or reexport under a State Department license, distribution arrangement or any
(ii) Letters requesting changes pursuant to paragraph (c)(2)(i) of this section should be made by the license holder on company letterhead, clearly identifying the original license number and the requested change. In addition, requests for changes to State licenses or other authorizations must be accompanied by a copy of the original State license or authorization. The requested changes may not take effect until approved in writing by BIS. Send requests for changes to the following address: Office of Strategic Trade, Bureau of Industry and Security, U.S. Department of Commerce, Room 2705, 14th Street and Pennsylvania Ave., NW, Washington, DC 20230, Attn: Encryption Division.
(d)
(e)
(f)
(g)
Emergency licenses will expire no later than the last day of the calendar month following the month in which the emergency license is issued. Licenses for items controlled for short supply reasons will be limited to a 12-month validity period. The expiration date will be clearly stated on the face of the license. If the expiration date falls on a legal holiday (Federal or State), the validity period is automatically extended to midnight of the first day of business following the expiration date. (See part 752 of the EAR for
(1)
(2)
(A) The name, address, and telephone number of the requestor;
(B) A copy of the original license, with the license number, validation date, and current expiration date legible; and
(C) Justification for the extension;
(ii) It is the responsibility of the applicant to ensure that all applicable support documents remain valid and are in the possession of the applicant. If the request for extension is approved, BIS will provide the applicant with a written response.
(h)
(2)
(3)
(4)
(i)
(j)
(a)
(b)
(a)
(1) That the original license ([number] issued to [name and address of licensee]) has been lost, stolen or destroyed;
(2) The circumstances under which it was lost, stolen or destroyed; and
(3) If the original license is found, the licensee will return either the original or duplicate license to the BIS. Note that if shipment was made against the original license, those shipments must be counted against the duplicate license. If you are issued a duplicate license you must retain the duplicate license in accordance with the recordkeeping provisions of part 762 of the EAR.
(b)
(a)
(b)
(i) The reasons for the requested transfer;
(ii) Either a list of the outstanding license numbers or a statement that all outstanding licenses in the name of the licensee are to be transferred, and the total number of such outstanding licenses;
(iii) A list of all license applications for export to be transferred that are pending with BIS, identifying the Application Control Number for each, or other information that will assist in identifying the pending license applications;
(iv) Name and address of the person you intend to transfer the licenses and license applications to;
(v) The facts necessitating transfer;
(vi) A statement as to whether or not any consideration has been, or will be, paid for the transfer; and
(vii) Identification by name of the legal document (certificate, agreement, etc.) or other authority by which the new firm name is legally established, the new corporation or firm created, or the assets transferred and showing the effective date of such document and the state where filed or recorded.
(2)
(i) That the transferee is a principal party in interest in the transaction covered by the license, or is acting as agent for a principal party in interest;
(ii) That the transferee is subject to the jurisdiction of the United States;
(iii) That the transferee assumes all powers and responsibilities under the license for the control of the shipment of the items out of the United States;
(iv) Whether any consideration has been, has not been, or will be paid for the transfer;
(v) The name and address of the foreign principal in instances where the transferee will make the export as an agent on behalf of a foreign principal; and
(vi) If the license is to be transferred to a subsidiary or firm, or if you transfer to the transferee all, or a substantial portion, of your assets or business, the transferee must certify that the legal authority changing the exporter imposes on the transferee the responsibility to accept and fulfill the obligations of the transferor under the transactions covered by the license; and
(vii) The following certification:
The undersigned hereby certifies that, if license number(s) ______ is (are) transferred in accordance with my (our) request, any and all documents evidencing the order covered by this (these) license(s) will be retained and made available upon request in compliance with the recordkeeping provisions contained in Part 762 of the Export Administration Regulations. The undersigned further certifies compliance with all requirements of the Export Administration Regulations regarding these licenses.
(c)
(a)
(1) If you have already shipped the full amount approved on your license, you may not use this shipping tolerance provision. No further shipment may be made under the license.
(2) The amount of shipping tolerance you are permitted is based on the “Unit” specified for the item you want to export in the applicable ECCN on the CCL (see Supplement No. 1 to part 774 of the EAR). You must calculate shipping tolerance based on the applicable “Unit” whether that be Number, Dollar Value, or Area, Weight, or other Measure. You may not use any other unit that may appear on your license.
(b)
(1)
(2)
(3)
(i) Your license stipulates a specific shipping tolerance; or
(ii) Your item is controlled for short supply reasons and a smaller tolerance has been established. (See part 754 of the EAR).
(c)
(i)
(ii)
(iii)
(2) A license authorizes the export of an item controlled by an ECCN where the “Unit” is stated as “$ value”, the total cost of which is $5,000,000. There is no shipping tolerance on this license because the items are controlled by an ECCN where “$ value” is the stated “Unit”.
(3) A license authorizes the export of 10 pieces of equipment controlled by an ECCN where the “Unit” is stated as “Number”, with a total value of $10,000,000 and the export of parts and accessories covered by that same entry valued at $1,000,000:
(i)(A) If one shipment is made, the quantity of equipment that may be exported may not exceed 10 pieces of equipment because there is no shipping tolerance on the “number” of units. That one shipment of equipment may not exceed $12,500,000:
(B) If the one shipment includes parts and accessories, those parts and accessories may not exceed $1,000,000 because there is no shipping tolerance on any commodity licensed in terms of dollar value.
(ii)(A) If the first shipment is for 4 pieces of equipment valued at $4,000,000, the second shipment may not exceed 6 pieces of equipment (no tolerance on “number”) valued at no more than $8,500,000:
(B) If the first shipment includes $300,000 of parts and accessories, the second shipment may not exceed $700,000 of parts and accessories because there is no shipping tolerance on any commodity licensed in terms of dollar value.
(iii)(A) If the first shipment is for 4 pieces of equipment valued at $4,000,000 and the second shipment is for 3 pieces of equipment valued at $3,000,000, the third shipment may not exceed 3 pieces of equipment (no tolerance on “number”) valued at no more than $5,500,000:
(B) If the first shipment includes $300,000 of parts and accessories and the second shipment includes another $300,000, the third shipment may not exceed $400,000 because there is no shipping tolerance on commodities licensed in terms of dollar value.
50 U.S.C. app. 2401
(a)(1)
(2)
(ii)
(b)
(a)
(1)
(2)
(3)
(4)
(b)
(a) All items subject to the EAR, including items eligible for License Exceptions described in part 740 of the EAR, are eligible for export and reexport under the SCL, except:
(1) Items controlled for missile technology reasons that are identified by the letters MT in the applicable “Reason for Control” paragraph on the Commerce Control List (CCL) (see Supplement No. 1 to part 774 of the EAR);
(2) Items controlled by ECCNs 1C351, 1C352, 1C353, 1C354, 1C991, 1E001, 2B352, 2E001, 2E002, and 2E301 on the CCL controlled for CB reasons;
(3) Items controlled by ECCNs 1C350, 1C995, 1D390, 1E350, 1E351, 2B350, and 2B351 on the CCL that can be used in the production of chemical weapons precursors and chemical warfare agents, to destinations listed in Country Group D:3 (
(4) Items controlled for short supply reasons that are identified by the letters “SS” in the applicable “Reason for Control” paragraph on the CCL;
(5) Items controlled for EI reasons on the CCL;
(6) Maritime (civil) nuclear propulsion systems or associated design or production software and technology identified in § 744.5 of the EAR;
(7) Communications intercepting devices and related software and technology controlled by ECCN 5A980, 5D980, or 5E980 on the CCL;
(8) Hot section technology for the development, production or overhaul of commercial aircraft engines controlled under ECCN 9E003.a.1. through a.12. .f, and related controls;
(9) Items specifically identified as ineligible by BIS on your approved SCL; and
(10) Additional items consistent with international commitments.
(b) Items controlled for nuclear nonproliferation reasons that are identified by the letters NP in the applicable “Reason for Control” paragraph on the CCL may be authorized on a case-by-case basis provided controls are in place to screen for proscribed end-users or end-uses.
(a)
(1) Cuba, Iran, Iraq, North Korea, Sudan, and Syria.
(2) Other countries that BIS may designate on a case-by-case basis as ineligible to receive items under the SCL.
(b)
(a)
(2)
(i) Evidence of past licensing history and projected, continuous large volume exports;
(ii) Reliability of all parties relative to their compliance with the EAR;
(iii) Commitment of all parties of the necessary resources to implement and maintain an adequate ICP; and
(iv) Evidence of all parties knowledge of all provisions of the EAR.
(b)
(2)
(i)
(B) The proposed consignee is a wholly-owned subsidiary or a controlled-in-fact affiliate of the applicant or of a consignee that is already approved on an SCL. See part 772 of the EAR for a definition of controlled-in-fact; or
(C) You have evidence of an established, on-going business relationship with the proposed consignee.
(ii)
(c)
(1)
(2)
(3)
(4)
(i) An overview of the total business activity that will be performed by you and all other parties who will receive items under the authority of your SCL, including consignees, subcontractors, and vessels;
(ii) A description of the nature and anticipated volume of regular and repetitive transactions proposed by consignees under the license;
(iii) An explanation of the relationship between the parties to the application, such as affiliate, subsidiary, or parent, etc;
(iv) A certification that you will implement, upon approval of the application by BIS, an ICP that incorporates all applicable elements listed in § 752.11 of this part and any additional elements as required by BIS upon approval of the SCL; and
(v) Information on whether proposed consignees are end-users or will reexport the items received under your SCL. You must describe the proposed consignee's activities completely to determine the appropriate ICP elements that you and your consignees must implement.
(5)
(6)
(7)
(i) They will implement, upon approval of the SCL by BIS, an ICP that incorporates all applicable elements listed in § 752.11 of this part and any additional elements as required by BIS upon approval of your SCL. If certain elements of an ICP will not be included, state the reasons for that determination;
(ii) They will comply with all provisions of the EAR, including the recordkeeping provisions of part 762 of the EAR, all applicable system review requirements of § 752.14 of this part, and the reexport restrictions of § 752.6 of this part; and
(iii) They will make available for inspection, upon request by BIS, all records required by § 752.12 of this part and part 762 of the EAR.
(8)
I (We) request authorization to reexport temporarily, for exhibit or demonstration in countries eligible to receive items under the Special Comprehensive License. The items exported will be retained under my (our) ownership and control, and will be returned by me (us) to (name destination) promptly after their exhibit or demonstration abroad, and in no case later than one year after the date of reexport, unless other disposition is authorized in writing by the Bureau of Industry and Security.
(ii)
No chemicals or chemical equipment received under this Special Comprehensive License will be transferred, resold, or reexported to a destination that requires a license, unless the new end-user has been approved by the Bureau of Industry and Security, and in no case will the items be retransferred, resold, or reexported to a party who is not the end-user.
(iii)
(A) The items to be exported or replicas thereof (“replicas” refer to items produced abroad based on physical examination of the items originally exported, matching it in all critical design and performance parameters), will not be used in any of the activities described in § 744.2 of the EAR; and
(B) Written authorization will be obtained from BIS prior to transferring or reexporting the items, unless they are destined to Canada or would not require a license to the new country of destination.
(a)
(1) Reexports that qualify for a License Exception authorized by part 740 of the EAR;
(2) Reexports to destinations approved by BIS through validation of Form BIS-752 and/or Form BIS-752-A according to the terms stated on the Form BIS-752 or BIS-752-A; or
(3) Reexports of items approved under an SCL to and among other consignees approved on the same SCL, provided that the items are eligible to the new destination in accordance with your approved SCL and § 752.3 of this part.
(b)
(1) Transferring, reselling, or reexporting under your SCL any chemicals or chemical equipment identified with the letters “CB” in the applicable “Reason for Control” paragraph on the CCL (see Supplement No. 1 to part 774 of the EAR); and
(2) Reexporting under your SCL items identified by the letters NP in the applicable “Reason for Control” paragraph on the CCL to destinations not listed in country group A:4 (see Supplement No. 1 to part 740).
(c)
(a)
(i) The requesting consignee's country; or
(ii) Another country authorized to receive items under the requesting consignee's validated Form BIS-752-A.
(2) The SCL holder or consignee making direct shipments authorized by this section must implement an ICP containing procedures governing such shipments.
(3) SCL holders and consignees using the direct shipment provision may invoice the shipments directly to the requesting consignee's customers if copies of applicable invoices are maintained by both the shipping party and requesting consignee.
(b)
(2)
(a)
(b)
(c)
(d)
(1) The specific nature of proposed end-use and end-uses;
(2) The significance of the export in terms of its contribution to the design, development, production, stockpiling, or use of nuclear or chemical or biological weapons, or missiles;
(3) The types of assurances against design, development, production, stockpiling, or use of nuclear or chemical and biological weapons, or missiles that are included in the ICP;
(4) The nonproliferation credentials of the importing country;
(5) Corporate commitment of the resources necessary to implement and maintain an adequate ICP;
(6) Evidence of past licensing history of the applicant and consignees, and projected, continuous large volume exports and/or reexports;
(7) Reliability of all parties;
(8) Information on all parties' compliance with the provisions of the EAR; and
(9) All parties' knowledge of the EAR.
(e)
(a)
(2)
(i) That you continue to abide by the provisions and conditions of the SCL; and
(ii) Any changes to the original SCL that you are requesting (see § 752.10 of this part for procedures on changed circumstances).
(3)
(ii)
(A) A description of all recordkeeping requirements of the EAR applicable to the activities of the consignee;
(B) Information on any applicable reexport restrictions on items received by the consignee under the SCL;
(C) A description or copy of § 752.16 of this part, listing administrative actions that may be taken for improper use of, or failure to comply with, the SCL and its required procedures;
(D) A description of any special conditions or restrictions on the license applicable to the consignee, including approved lists of customers, countries, and items, when required;
(E) A description of the elements of the SCL holder's ICP relevant to the SCL consignee;
(F) A copy of the high risk customer profile contained in § 752.11(c)(13)(i) of this part, when required;
(G) A copy of your procedures for screening transactions to prevent violations of orders denying export privileges under the EAR:
(H) A notice that the consignee, in addition to other requirements, may not sell or otherwise dispose of any U.S. origin items when it knows that the items will be used in the activities prohibited by part 744 of the EAR;
(I) A requirement that the consignee acknowledge, in writing, receipt of this letter of transmittal outlining their obligations under the SCL, and certify that it will comply with all of the requirements, including implementation of an ICP if required by § 752.11 of this part; and
(J) A description of any special documentation requirements for consignees reexporting items to destinations having such requirements.
(4)
(b)
(2) BIS may at any time prohibit the sale or transfer of items under the SCL to specified individuals, companies, or countries. In such cases, the SCL holder must inform all consignees, and apply for a license described in part 748 of the EAR for subsequent transactions with such excluded parties.
(3) If a consignee is not approved, Form BIS-752 will be returned to the SCL holder with a letter explaining the reason for denial.
(4) If a particular destination is not approved, it will be removed from the appropriate Form BIS-752-A.
(c)
(a)
(b)
(1)
(2)
(3)
(4)
(i)
(ii)
(5)
(i)
(ii)
(6)
(i)
(ii)
(c)
(1)
(2)
(3)
(ii)
(iii)
(4)
(i)
(ii)
(5)
(i)
(ii)
(6)
(i)
(ii)
(d)
(a)
(2)
(b)
(c)
(1) A clear statement of corporate policy communicated to all levels of the firm involved in exports and reexports, traffic, and related functions, emphasizing the importance of SCL compliance;
(2) Identification of positions (and maintenance of current list of individuals occupying the positions) in the SCL holder firm and consignee firms responsible for compliance with the requirements of the SCL procedure;
(3) A system for timely distribution to consignees and verification of receipt by consignees of regulatory materials necessary to ensure compliance with the EAR;
(4) A system for screening transactions to prevent violations of orders denying export privileges under the EAR;
(5) A system for assuring compliance with items and destination restrictions, including controls over reexports by consignees and direct exports to consignee customers;
(6) A compliance review program covering the SCL holder and extending to all consignees;
(7) A system for assuring compliance with controls on exports and reexports of nuclear items and to nuclear end-uses described in §§ 742.3 and 744.2 of the EAR;
(8) An on-going program for informing and educating employees responsible for processing transactions involving items received under the SCL about applicable regulations, limits, and restrictions of the SCL;
(9) A program for recordkeeping as required by the EAR;
(10) An order processing system that documents employee clearance of transactions in accordance with applicable elements of the company ICP;
(11) A system for monitoring in-transit shipments and shipments to bonded warehouses and free trade zones;
(12) A system for notifying BIS promptly if the SCL holder knows that a consignee is not in compliance with terms of the SCL;
(13) A system to screen against customers who are known to have, or are suspected of having, unauthorized dealings with specially designated regions and countries for which nonproliferation controls apply;
(i) The signs of potential diversion that you should take into consideration include, but are not limited to, the following:
(A) The customer or purchasing agent is reluctant to offer information about the end-use (or end-user) of a product.
(B) The product's capabilities do not fit the buyer's line of business; for example, a small bakery places an order for several sophisticated lasers.
(C) The product ordered is incompatible with the technical level of the country to which the product is being shipped. For example, semiconductor manufacturing equipment would be of little use in a country without an electronics industry.
(D) The customer has little or no business background. For example, financial information unavailable from normal commercial sources and corporate principals unknown by trade sources.
(E) The customer is willing to pay cash for a very expensive item when the terms of the sale call for financing.
(F) The customer is unfamiliar with the product's performance characteristics but still wants the product.
(G) Routine installation, training or maintenance services are declined by the customer.
(H) Delivery dates are vague, or deliveries are planned for out-of-the-way destinations.
(I) A freight forwarding firm is listed as the product's final destination.
(J) The shipping route is abnormal for the product and destination.
(K) Packaging is inconsistent with the stated method of shipment or destination.
(L) When questioned, the buyer is evasive or unclear about whether the purchased product is for domestic use, export, or reexport.
(M) Customer uses only a “P.O. Box” address or has facilities that appear inappropriate for the items ordered.
(N) Customer's order is for parts known to be inappropriate, or for which the customer appears to have no legitimate need (e.g., there is no indication of prior authorized shipment of system for which the parts are sought).
(O) Customer is known to have, or is suspected of having unauthorized dealings with parties and/or destinations in ineligible countries.
(ii) When any of the above characteristics have been identified, but through follow-up inquiries or investigation have not been satisfactorily resolved, the consignee should not transact any business with the customer under the SCL. Apply for a license according to part 748 of the EAR. You should explain the basis for the concern regarding the proposed customer, and state that you are an SCL consignee. Also, cite the SCL number, and your consignee number;
(14) A system for assuring compliance with controls over exports and reexports for missile-related end-uses and end-users described in § 744.3 of the EAR;
(15) A system for assuring compliance with control over exports and reexports of chemical precursors and biological agents and related items and end-uses described in §§ 742.2 and 744.4 of the EAR;
(a)
(b)
(c)
(1) Full name and address of individual or firm to whom sale or reexport was made;
(2) Full description of each item sold or reexported;
(3) Units of quantity and value of each item sold or reexported; and
(4) Date of sale or reexport.
(a)
(b)
(c)
(a)
(b)
(a)
(1)
(2)
(3)
(b)
(a)(1) If BIS is not satisfied that you or other parties to the SCL are complying with all conditions and requirements of the SCL, or that ICPs employed by parties to such licenses are not adequate, BIS may, in addition to any enforcement action pursuant to part 764 of the EAR, take any licensing action it deems appropriate, including the following:
(i) Suspend the privileges under the SCL in whole or in part, or impose other restrictions;
(ii) Revoke the SCL in whole or in part;
(iii) Prohibit consignees from receiving items authorized under the SCL, or otherwise restrict their activities under the SCL;
(iv) Restrict items that may be shipped under the SCL;
(v) Require that certain exports, transfers or reexports be individually authorized by BIS;
(vi) Restrict parties to whom consignees may sell under the SCL; and
(vii) Require that an SCL holder provide an audit report to BIS of selected consignees or overseas operations.
(2) Whenever necessary to protect the national interest of the U.S., BIS may take any licensing action it deems appropriate, without regard to contracts or agreements entered into before such administrative action, including those described in paragraphs (a)(1) (i) through (vii) of this section.
(b)
You should use the following addresses when submitting to BIS applications, reports, documentation, or other requests required in this part 752: Bureau of Industry and Security, U.S. Department of Commerce, P.O. Box 273, Washington, D.C. 20044, “Attn: Special Licensing and Compliance Division”. If you wish to send the required material via overnight courier, use the following address: Bureau of Industry and Security, U.S. Department of Commerce, 14th and Pennsylvania Avenue, N.W., Room 2705, Washington D.C. 20230 “Attn: Special Licensing and Compliance Division”. You may also reach the Special Licensing and Compliance Division by phone (202)482-0062, or telefacsmile on (202)501-6750.
All information must be legibly typed within the lines for each Block or box, except where a signature is required. Where there is a choice of entering a telephone or telefacsimile number, and you chose a telefacsimile number, identify the number with the letter “F” immediately following the number.
Complete Blocks 1, 2, 3 and 4 according to the instructions in Supplement No. 1 to part 748 of the EAR.
Block 5: Type of Application. Enter an “x” in the Special Comprehensive License box.
Block 6: Documents Submitted with Application. Enter an “x” in the appropriate boxes to indicate which forms are attached.
Block 7: Documents on File with Applicant. Leave blank.
Block 8: Special Comprehensive License. Complete by entering an “x” in the appropriate boxes to indicate which forms are attached.
Block 9: Special Purpose. This block should only be completed when requesting changes to an approved SCL.
Block 10: Resubmission Application Control Number. Leave blank.
Block 11: Replacement License Number. This Block should be completed by previous special license holders. If you have had a special license in the past, enter that license number (i.e., V #, SS #, DL #, or SF ##). A new SCL number will be assigned upon approval of your SCL application.
Block 12: Items Previously Exported. Leave blank.
Block 13: Import/End-User Certificate. Leave blank.
Block 14: Applicant. Complete according to the instructions in Supplement No. 1 to part 748 of the EAR.
Block 15: Other Party Authorized to Receive License. Complete, if applicable, according to the instructions in Supplement No. 1 to part 748 of the EAR.
Block 16: Purchaser. Leave blank.
Block 17: Intermediate Consignee. Leave blank.
Block 18: Ultimate Consignee. Leave blank.
Block 19: End-User. Leave blank.
Block 20: Original Ultimate Consignee. Leave blank.
Block 21: Specific End-Use. Leave blank.
Block 22: For one item, complete sub-blocks (a) through (j). For multiple items, complete Form BIS 748P-A.
Block 23: Total Application Dollar Value. Enter the projected total dollar value of all transactions you anticipate making throughout the entire validity period of the SCL.
Block 24: Additional Information. Enter additional data pertinent to the transaction.
Block 25: Signature. Complete according to the instructions in Supplement No. 1 to part 748 of the EAR.
All information must be legibly typed within the lines for each block or box.
Block 1: Application Control No. Enter the application control number found on Form BIS-748P.
Block 2: Subtotal. Leave blank.
Block 21: Continuation of Specific End-Use Information. Complete as necessary to fully describe the transaction(s).
Block 22:
(a) ECCN. Enter the Export Control Classification Number that corresponds to the item you wish to export or reexport under the SCL.
(b) CTP. You must enter the “Adjusted Peak Performance” (“APP”) in this block if you intend to export or reexport a computer or equipment that contains a computer. Instructions on calculating the APP are contained in a Technical Note at the end of Category 4 in the CCL.
(c)-(i): Leave blank.
(j) Manufacturer's Description. Enter a detailed description of the item proposed for export or reexport. Brochures or product literature may be supplied at the option of the applicant. However, such information may expedite review and processing of your application.
Block 24: Continuation of Additional Information. Enter any identifying information that defines the scope of items you are requesting to export or reexport under the SCL. For example, “4A004 except items controlled for MT reasons”.
All information must be legibly typed within the lines for each Block or Box, except where a signature is required.
Block 1: Application Control No. Enter the “Control No.” that is pre-printed on Form BIS-748P, Multipurpose Application. You may obtain this information from the applicant.
Block 2: Consignee ID Number. Leave blank.
Block 3: Type of Request. For new applications, leave blank.
Block 4: Consignee Information. Enter the complete address where the consignee is located. A Post Office (P.O.) Box alone is NOT acceptable, but may be included in this Block 4 for mailing purposes, along with a complete address. If records required by § 752.12 of this part and part 762 of the EAR are maintained/stored at a separate address, indicate the address in Block 9. In the absence of a complete address, Form BIS-752 will be returned without action.
Block 5: Exporter Information. Enter the complete address of the exporter. Leave the SCL Case No. box blank for new applications and enter the SCL Case No. for “change” actions.
Block 6: Description of Items. Provide a summary description of the items proposed for import and reexport under the SCL. Firms that will not receive the entire range of items under a particular ECCN identified on Form BIS-748P-B should describe only the items they will receive under the SCL. In some instances, consignee approval will be contingent on the nature of the item requested.
Block 7: Consignee's Business and Relationships.
(i) Item (a): Identify the nature of your company's principal business as it affects the disposition of items to be imported and reexported under this license by including the appropriate letter choice(s) from the following: (a) manufacturer, (b) distributor, (c) assembler, (d) sales agent, (e) warehouse, (f) service facility, or (g) other. For other, provide an explanation in Block 9.
(ii) Item (b): Indicate the relationship between your company and the applicant's company by providing the appropriate letter choice(s) from the following: (a) wholly-owned subsidiary, (b) independent company, (c) joint venture company, (d) controlled-in-fact affiliate, (e) contractor/subcontractor, or (f) other. For other, provide an explanation in Block 9.
(iii) Item (c): Enter the number of years of relationship between your company and the applicant company.
(iv) Item (d): Enter the estimated dollar volume of sales or other transactions with the SCL holder during the last twelve month period before submission of the application for an SCL.
(v) Item (e): Enter an estimated dollar volume proposed under this application for the validity period of the SCL.
Block 8: Disposition or Use of Items.
(i) Item (a): Complete this Block if your company is requesting involvement in end-user activities that involves importing items for the company's own use (e.g., as capital equipment).
(ii) Item (b): Complete this Block if your company is requesting involvement in end-user activities that incorporates items received under the SCL into a new end-product that results in a change of identity of the U.S.-item (e.g., U.S.-origin semiconductor devices are included in a foreign-origin test instrument). Under Block 9, Additional Information, describe the new end-product
(iii) Item (c): Complete this Block if your company is requesting authorization to reexport items for service and/or repair. Complete and attach Form BIS-752-A. If you plan to reexport to end-users that require prior approval by BIS, also complete and attach Form BIS-748P-B, End-User Appendix.
(iv) Item (d): Complete this Block if your company plans to retransfer/resell within the country of import. State the end-use of your customers. If you plan to retransfer to end-users that require prior approval by BIS, complete and attach Form BIS-748P-B, End-User Appendix.
(v) Item (e): Complete this Block if your company plans to reexport. Complete and attach Form BIS-752-A. If you plan to reexport to end-users that require prior approval by BIS, complete and attach Form BIS-748P-B, End-User Appendix.
(vi) Item (f): This item should be completed for “other” activities that are not defined in Block 8 paragraphs (a) through (e). Describe the proposed activities fully in Block 9 or in a letter submitted with this Form, and complete and submit Form BIS-752-A, indicating the countries to which the products derived from these activities will be exported.
Block 9: Additional Information. In addition to any information that supports other Blocks, indicate whether your company is an active consignee under any other license issued by BIS. Indicate the license and consignee numbers.
Block 10: Signature of Official of Ultimate Consignee. Include an original signature. The authority to sign Form BIS-752 may not be delegated to any person whose authority to sign is not inherent in his/her official position with the company. The signing official must include their official title with their signature. All copies must be co-signed by the applicant in the SCL holder signature block and submitted with the application to BIS.
All information must be legibly typed within the lines for each Block or Box.
Block 1: Application Control No. Insert the application control No. from the relevant Form BIS-748P.
Block 2: SCL License No. Leave blank for new SCL applications. For changes to existing SCLs, include the original SCL number.
Block 3: Consignee No. Leave blank for new SCL applications. For changes to existing SCLs, include the consignee number that was provided on the original license.
Block 4: Continuation of BIS-752 Question No. Mark an “x” in the box next to each country you wish to select. See § 752.4 of this part for countries that are not eligible for the SCL. You may request a country that is not included on Form BIS-752-A by marking an “x” in the “other” box and including the country name.
All information must be legibly typed within the lines for each Block or Box.
Block 1: Application Control No. Insert the application control No. from the relevant Form BIS-748P.
Block 19: End-user. Enter each end-user's complete name, street address, city, country, postal code and telephone or facsimile number. Post Office (P.O.) Boxes are not acceptable.
Block 21: Continuation of Specific End-Use Information. Include any additional information that may help BIS in reviewing and making a determination on your application, such as the special safeguards that will be implemented to prevent diversion.
Block 24: Continuation of Additional Information. Enter additional data pertinent to the transaction as required by part 752. Enter the consignee name and complete address of the consignee responsible for the end-user(s) (i.e., recordkeeping and ICP screening, etc.).
50 U.S.C. app. 2401
(a)
(b)
(1) It sets forth the license requirements and licensing policies for commodities that contain the symbol “SS” in the “Reason for Control” part of “License Requirements” section of the applicable Export Control Classification Number (ECCN) identified on the Commerce Control List (Supplement No. 1 to part 774 of the EAR). In appropriate cases, it also provides for License Exceptions from the short supply licensing requirements described in this part. The license requirements and policies that are described in this part cover the following:
(i) Crude oil described by ECCN 1C981 (Crude petroleum, including reconstituted crude petroleum, tar sands, and crude shale oil listed in Supplement No. 1 to this part). For specific licensing requirements for these items, see § 754.2 of this part.
(ii) Petroleum products other than crude oil listed in Supplement No. 1 to this part, that were produced or derived from the Naval Petroleum Reserves (NPR) or became available for export as a result of an exchange of any NPR-produced or -derived commodities described by the following ECCNs. For specific licensing requirements for these items, see § 754.3 of this part.
(A) ECCN 1C980 (Inorganic chemicals);
(B) ECCN 1C982 (Other petroleum products);
(C) ECCN 1C983 (Natural gas liquids and other natural gas derivatives); and
(D) ECCN 1C984 (Manufactured gas and synthetic natural gas (except when commingled with natural gas and thus subject to export authorization from the Department of Energy).
(iii) Unprocessed western red cedar described by ECCN 1C988 (Western red cedar (thuja plicata) logs and timber, and rough, dressed and worked lumber containing wane listed in Supplement No. 2 to this part). For specific licensing requirements for these items, see § 754.4 of this part.
(iv) Horses exported by sea for slaughter covered by ECCN 0A980 (Horses for export by sea). For specific licensing requirements, see § 754.5 of this part.
(2) It incorporates statutory provisions for the registration of U.S. agricultural commodities for exemption from short supply limitations on export (see § 754.6 of this part); and
(3) It incorporates statutory provisions for the filing and review of petitions seeking the imposition of monitoring or controls on recyclable metallic materials and procedures for related public hearings (see § 754.7 of this part).
(c)
(d)
(a)
(b)
(i) Exports from Alaska's Cook Inlet (see paragraph (d) of this section);
(ii) Exports to Canada for consumption or use therein (see paragraph (e) of this section);
(iii) Exports in connection with refining or exchange of strategic petroleum reserve oil (see paragraph (f) of this section);
(iv) Exports of heavy California crude oil up to an average volume not to exceed 25 MB/D (see paragraph (g) of this section);
(v) Exports that are consistent with international agreements as described in the statutes listed in paragraph (c) of this section;
(vi) Exports that are consistent with findings made by the President under an applicable statute, including the statutes described in paragraph (c) of this section; and
(vii) Exports of foreign origin crude oil where, based on written documentation satisfactory to BIS, the exporter can demonstrate that the oil is not of U.S. origin and has not been commingled with oil of U.S. origin. See paragraph (h) of this section for the provisions of License Exception SPR permitting exports of certain crude oil from the Strategic Petroleum Reserve.
(2) BIS will review other applications to export crude oil on a case-by-case basis and, except as provided in paragraph (c) of this section, generally will approve such applications if BIS determines that the proposed export is consistent with the national interest and the purposes of the Energy Policy and Conservation Act (EPCA). Although BIS will consider all applications for approval, generally, the following kinds of transactions will be among those that BIS will determine to be in the national interest and consistent with the purposes of EPCA.
(i) The export is part of an overall transaction:
(A) That will result directly in the importation into the United States of an equal or greater quantity and an equal or better quality of crude oil or of a quantity and quality of petroleum products listed in Supplement No. 1 to this part that is not less than the quantity and quality of commodities that would be derived from the refining of the crude oil for which an export license is sought;
(B) That will take place only under contracts that may be terminated if the petroleum supplies of the United States are interrupted or seriously threatened; and
(C) In which the applicant can demonstrate that, for compelling economic or technological reasons that are beyond the control of the applicant, the crude oil cannot reasonably be marketed in the United States.
(ii) Exports involving temporary exports or exchanges that are consistent with the exceptions from the restrictions of the statutes listed in paragraph (c) of this section.
(c)
(i) Section 201 of Public Law 104-58, entitled “Exports of Alaskan North
(ii) The Mineral Leasing Act of 1920 restricts exports of domestically produced crude oil transported by pipeline over rights-of-way granted pursuant to section 28(u) of that Act (30 U.S.C. 185(u)) (“MLA”).
(iii) The Outer Continental Shelf Lands Act restricts exports of crude oil produced from the outer Continental Shelf (29 U.S.C. 1354) (“OCSLA”).
(iv) The Naval Petroleum Reserves Production Act restricts the export of crude oil produced from the naval petroleum reserves (10 U.S.C. 7430) (“NPRPA”).
(2) Supplement No. 3 to this part describes the relevant statutory provisions. In cases where a particular statute applies, a Presidential finding is necessary before the export can be authorized. You should note that in certain cases it is possible that more than one statute could apply to a particular export of crude oil.
(d)
(e)
(2) The licensing policy for TAPS crude oil is to approve applications for an average of no more than 50,000 barrels of oil per day for consumption or use in Canada, subject to the following procedures and conditions:
(i) Any ocean transportation of the commodity will be made by vessels documented for United States coastwise trade under 46 U.S.C. 12106. Only barge voyages between the State of Washington and Vancouver, British Columbia, and comparable barge movements across waters between the U.S. and Canada may be excluded from this requirement. The Bureau of Industry and Security will determine, in consultation with the Maritime Administration, whether such transportation is “ocean” transportation; and
(ii) Authorization to export TAPS crude oil will be granted on a quarterly basis. Applications will be accepted by BIS no earlier than two months prior to the beginning of the calendar quarter in question, but must be received no later than the 25th day of the second month preceding the calendar quarter. For example, for the calendar quarter beginning April 1 and ending June 30, applications will be accepted beginning February 1, but must be received no later than February 25.
(iii) The quantity stated on each application must be the total number of barrels for the quarter, not a per-day rate. This quantity must not exceed 50,000 barrels times the number of calendar days in the quarter.
(iv) Each application must include support documents providing evidence that the applicant has either:
(A) Title to the quantity of barrels stated in the application; or
(B) A contract to purchase the quantity of barrels stated in the application.
(v) The quantity of barrels authorized on each license for export during the calendar quarter will be determined by the BIS as a prorated amount based on:
(A) The quantity requested on each license application; and
(B) The total number of barrels that may be exported by all license holders during the quarter (50,000 barrels per day multiplied by the number of calendar days during the quarter).
(vi) Applicants may combine their licensed quantities for as many as four consecutive calendar quarters into one or more shipments, provided that the
(vii) BIS will carry forward any portion of the 50,000 barrels per day quota that has not been allocated during a calendar quarter, except that no un-allocated portions will be carried over to a new calendar year. The un-allocated volume for a calendar quarter will be added, until expended, to the quotas available for each quarter through the end of the calendar year.
(f)
(2) Licenses may be granted to export, for refining or exchange outside of the United States, SPR crude oil that will be sold and delivered, pursuant to a drawdown and distribution of the SPR, in connection with an arrangement for importing refined petroleum products into the United States.
(3) BIS will approve license applications subject to the following conditions:
(i) You must provide BIS evidence of the following:
(A) A title to the quantity of barrels of SPR crude stated in the application; or
(B) A contract to purchase, for importation, into the United States the quantity of barrels of SPR crude stated in the application.
(ii) The following documentation must be submitted to BIS no later than fourteen days following the date that the refined petroleum products are imported in the U.S. in exchange for the export of SPR crude:
(A) Evidence that the exporter of the SPR crude has title to or a contract to purchase refined petroleum product;
(B) A copy of the shipping manifest that identifies the refined petroleum products; and
(C) A copy of the entry documentation required by the U.S. Customs Service that show the refined petroleum products were imported into the United States, or a copy of the delivery receipt when the refined petroleum products are for delivery to the U.S. military outside of the United States.
(4) You must complete both the export of the SPR crude and the import of the refined petroleum products no later than 30 days following the issuance of the export license, except in the case of delivery to the U.S. military outside of the United States, in which case the delivery of the refined petroleum products must be completed no later than the end of the term of the contract with the Department of Defense.
(g)
(1) Applicants must submit their applications on Form BIS-748 to the following address: Office of Exporter Services, ATTN: Short Supply Program—Petroleum, Bureau of Industry and Security, U.S. Department of Commerce, P.O. Box 273, Washington, DC 20044.
(2) The quantity stated on each application must be the total number of barrels proposed to be exported under the license—not a per-day rate. This quantity must not exceed 25 percent of the annual authorized export quota. Potential applicants may inquire of BIS as to the amount of the annual authorized export quota available.
(3) Each application shall be accompanied by a certification by the applicant that the California heavy crude oil:
(i) Has a gravity of 20.0 degrees API or lower;
(ii) Was produced within the state of California, including its submerged state lands;
(iii) Was not produced or derived from a U.S. Naval Petroleum Reserve; and
(iv) Was not produced from submerged lands of the U.S. Outer Continental Shelf.
(4) Each license application must be based on an order, and be accompanied
(5) BIS will adhere to the following procedures for licensing exports of California heavy crude oil:
(i) BIS will issue licenses for approved applications in the order in which the applications are received (date-time stamped upon receipt by BIS), with the total quantity authorized for any one license not to exceed 25 percent of the annual authorized volume of California heavy crude oil.
(ii) BIS will approve only one application per month for each company and its affiliates.
(iii) BIS will consider the following factors (among others) when determining what action should be taken on individual license applications:
(A) The number of licenses to export California heavy crude oil that have been issued to the applicant or its affiliates during the then-current calendar year;
(B) The number of applications pending in BIS that have been submitted by applicants who have not previously been issued licenses under this section to export California heavy crude oil during the then-current calendar year; and
(C) The percentage of the total amount of California heavy crude oil authorized under other export licenses previously issued to the applicant pursuant to this section that has actually been exported by the applicant.
(iv) BIS will approve applications contingent upon the licensee providing documentation meeting the requirements of both paragraphs(g)(5)(iv)(A) and (B) of this section prior to any export under the license:
(A) Documentation showing that the applicant has or will acquire title to the quantity of barrels stated in the application. Such documentation shall be either:
(
(
(B) Documentation showing that the applicant has a contract to export the quantity of barrels stated in the application. The contract may be contingent upon issuance of the export license to the applicant.
(v) BIS will carry forward any portion of the 25 MB/D quota that has not been licensed, except that no unallocated portions will be carried forward more than 90 days into a new calendar year. Applications to export against any carry-forward must be filed with BIS by January 15 of the carry-forward year.
(vi) BIS will return to the available authorized export quota any portion of the 25 MB/D per day quota that has been licensed, but not shipped, during the 90-day validity period of the license.
(vii) BIS will not carry over to the next calendar year pending applications from the previous year.
(6) License holders:
(i) Have 90 calendar days from the date the license was issued to export the quantity of California heavy crude oil authorized on the license. Within 30 days of any export under the license, the exporter must provide BIS with a certified statement confirming the date and quantity of California heavy crude oil exported.
(ii) Must submit to BIS, prior to any export under the license, the documentation required by paragraph (g)(5)(iv) of this section.
(iii) May combine authorized quantities into one or more shipments, provided that the validity period of none of the affected licenses has expired.
(iv) Are prohibited from transferring the license to another party without prior written authorization from BIS.
(7) BIS will allow a 10 percent tolerance on the unshipped balance based upon the volume of barrels it has authorized. BIS will allow a 25 percent shipping tolerance on the total dollar value of the license. See § 750.11 of the EAR for an explanation of shipping tolerances.
(h)
(1) The requirements and restrictions described in §§ 740.1 and 740.2 of the EAR that apply to all License Exceptions also apply to the use of License Exception SPR.
(2) A person exporting crude oil pursuant to this License Exception must enter on any required Shipper's Export Declaration (SED) or Automated Export System (AES) record the letter code “SS-SPR” or the equivalent code as set forth in Appendix C to 15 CFR part 30.
(i)
(1) An exporter may ship up to 10 barrels of crude oil to any one end-user annually, up to an annual cumulative limit of 100 barrels per exporter.
(2) The requirements and restrictions described in §§ 740.1 and 740.2 of the EAR that apply to all License Exceptions also apply to the use of License Exception SPR.
(3) A person exporting crude oil pursuant to this License Exception must enter on any required Shipper's Export Declaration (SED) or Automated Export System (AES) record the letter code “SS-SAMPLE” or the equivalent code as set forth in Appendix C to 15 CFR part 30.
(j)
(i) The TAPS oil is transported by a vessel documented under the laws of the United States and owned by a citizen of the United States (in accordance with section 2 of the Shipping Act, 1916 (46 U.S.C. app. 802));
(ii) All tankers involved in the TAPS export trade use the same route that they do for shipments to Hawaii until they reach a point 300 miles due south of Cape Hinchinbrook Light and then turn toward Asian destinations. After reaching that point, tankers in the TAPS oil export trade must remain outside of the 200 nautical mile Exclusive Economic Zone, as defined in 16 U.S.C. 1802(6). Tankers returning from foreign ports to Valdez, Alaska must abide by the same restrictions, in reverse, on their return route. This condition shall not be construed to limit any statutory, treaty or Common Law rights and duties imposed upon and enjoyed by tankers in the TAPS oil export trade, including, but not limited to,
(iii) The owner or operator of a tanker exporting TAPS oil shall:
(A) Adopt a mandatory program of deep water ballast exchange (i.e., at least 2,000 meters water depth). Exceptions can be made at the discretion of the captain only in order to ensure the safety of the vessel and crew. Records must be maintained in accordance with paragraph (j)(3) of this section.
(B) Be equipped with satellite-based communications systems that will enable the Coast Guard independently to determine the tanker's location; and
(C) Maintain a Critical Area Inspection Plan for each tanker in the TAPS oil export trade in accordance with the U.S. Coast Guard's Navigation and Inspection Circular No. 15-91 as amended, which shall include an annual internal survey of the vessel's cargo block tanks.
(2)
(3)
(A) The vessel's name, port of registry, and official number or call sign;
(B) The name of the vessel's owner(s);
(C) Whether ballast water is being carried;
(D) The original location and salinity, if known, of ballast water taken on, before an exchange;
(E) The location, date, and time of any ballast water exchange; and
(F) The signature of the master attesting to the accuracy of the information provided and certifying compliance with the requirements of this paragraph.
(ii) The COTP or other appropriate federal agency representatives may take samples of ballast water to assess the compliance with, and the effectiveness of, the requirements of paragraph (j)(3)(i) of this section.
(a)
(b)
(2) Applications that involve temporary exports or exchanges excepted from that Act will be approved.
(a)
(b)
(2) BIS will consider, on a case-by-case basis, applications for licenses to export unprocessed western red cedar harvested from Federal or State lands under harvest contracts entered into prior to October 1, 1979.
(3) BIS will approve license applications for unprocessed western red cedar timber harvested from public lands in Alaska, private lands, and Indian lands. Applications must be submitted in accordance with the procedures set forth in paragraph (a) of this section.
(c)
(2) Exporters who use License Exception WRC must obtain and retain on file the following documents:
(i) A statement by the exporter (or other appropriate documentation) indicating that the unprocessed western red cedar timber exported under this License Exception was not harvested from State or Federal lands outside the State of Alaska, and did not become available for export through substitution of commodities so harvested or produced. If the exporter did not harvest or produce the timber, the records or statement must identify the harvester or producer and must be accompanied by an identical statement from the harvester or producer. If any intermediate party or parties held title to the timber between harvesting and purchase, the exporter must also obtain such a statement, or equivalent documentation, from the intermediate party or parties and retain it on file.
(ii) A certificate of inspection issued by a third party log scaling and grading organization, approved by the United States Forest Service, that:
(A) Specifies the quantity in cubic meters or board feet, scribner rule, of unprocessed western red cedar timber to be exported; and
(B) Lists each type of brand, tag, and/or paint marking that appears on any log or unprocessed lumber in the export shipment or, alternatively, on the logs from which the unprocessed timber was produced.
(3) The requirements and restrictions described in §§ 740.1 and 740.2 of the EAR that apply to all License Exceptions also apply to the use of License Exception WRC.
(4) A person exporting any item pursuant to this License Exception must enter on any required Shipper's Export Declaration (SED) or Automated Export System (AES) record the letter code “SS-WRC”.
(d)
I, (Name) (Title) of (Exporter) HEREBY CERTIFY that to the best of my knowledge and belief the (Quantity) (cubic meters or board feed scribner) of unprocessed western red cedar timber that (Exporter) proposes to export was not harvested from State or Federal lands under contracts entered into after October 1, 1979,
(2) For Items [16] and [18] on Form BIS-748P, “Various” may be entered when there is more than one purchaser or ultimate consignee.
(3) For each Form BIS-748P submitted, and for each export shipment made under a license, the exporter must assemble and retain for the period described in part 762 of the EAR, and produce or make available for inspection, the following:
(i) A signed statement(s) by the harvester or producer, and each subsequent party having held title to the commodities, that the commodities in question were harvested under a contract to harvest unprocessed western red cedar from State or Federal lands, entered into before October 1, 1979; and
(ii) A copy of the Shipper's Export Declaration of Automated Export System record.
(4) A shipping tolerance of 5 percent in cubic feet or board feet scribner is allowed on the un-shipped balance of a commodity listed on a license. This tolerance applies only to the final quantity remaining un-shipped on a license against which more than one shipment is made and not to the original quantity authorized by such license. See § 750.11 of the EAR for an explanation of shipping tolerances.
(e)
(1)
(i) Lumber of American Lumber Standards Grades of Number 3 dimension or better, or Pacific Lumber Inspection Bureau Export R-List Grades of Number 3 common or better grades, with a maximum cross section of 2,000 square centimeters (310 square inches) for any individual piece of processed western red cedar (WRC) being exported, regardless of grade;
(ii) Chips, pulp, and pulp products;
(iii) Veneer and plywood;
(iv) Poles, posts, or pilings cut or treated with preservative for use as such and not intended to be further processed; and
(v) Shakes and shingles.
(2)
(3)
(4)
(a)
(b)
(2) Other license applications will be approved if BIS, in consultation with the Department of Agriculture, determines that the horses are not intended for slaughter. You must provide a statement in the additional information section of the Form BIS-748P, certifying that no horse under consignment is being exported for the purpose of slaughter.
(3) Each application for export may cover only one consignment of horses.
(a)
(b)
(c)
(a)
(b)
(c)
(d)
This supplement provides relevant Schedule B numbers and a commodity description of the items controlled by ECCNs 1C980, 1C981, 1C982, 1C983, and 1C984.
This supplement provides relevant Schedule B numbers and a commodity description of the items controlled by ECCN 1C988.
Section 28 of the Mineral Leasing Act (30 U.S.C. 185(s)) is amended by amending subsection(s) to read as follows:
(1) Subject to paragraphs (2) through (6) of this subsection and notwithstanding any other provision of this Act or any other provision of laws (including any regulation) applicable to the export of oil transported by pipeline over right-of-way granted pursuant to section 203 of the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1652), such oil may be exported unless the President finds that exportation of this oil is not in the national interest. The President shall make his national interest determination within five months of the date of enactment of this subsection. In evaluating whether exports of this oil are in the national interest, the President shall at a minimum consider—
(A) whether exports of this oil would diminish the total quantity or quality of petroleum available to the United States;
(B) the results of an appropriate environmental review, including consideration of appropriate measures to mitigate any potential adverse effects of exports of this oil on the environment, which shall be completed within four months of the date of the enactment of this subsection; and
(C) whether exports of this oil are likely to cause sustained material oil supply shortages or sustained oil prices significantly above world market levels that would cause sustained material adverse employment effects in the United States or that would cause substantial harm to consumers, including noncontiguous States and Pacific territories.
If the President determines that exports of this oil are in the national interest, he may impose such terms and conditions (other than a volume limitation) as are necessary or appropriate to ensure that such exports are consistent with the national interest.
(2) Except in the case of oil exported to a country with which the United States entered into a bilateral international oil supply agreement before November 26, 1979, or
(3) Nothing in this subsection shall restrict the authority of the President under the Constitution, the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act ( ) U.S.C. 1601 et seq.), or Part B of title II of the Energy Policy and Conservation Act (42 U.S.C. 6271-76) to prohibit exports.
(4) The Secretary of Commerce shall issue any rules necessary for implementation of the President's national interest determination, including any licensing requirements and conditions, within 30 days of the date of such determination by the President. The Secretary of Commerce shall consult with the Secretary of Energy in administering the provisions of this subsection.
(5) If the Secretary of Commerce finds that exporting oil under authority of this subsection has caused sustained material oil supply shortage or sustained oil prices significantly above world market levels and further finds that these supply shortages or price increases have caused or are likely to cause sustained material adverse employment effects in the United States, the Secretary of Commerce, in consultation with the Secretary of Energy, shall recommend, and the President may take, appropriate action concerning exports of this oil, which may include modifying or revoking authority to export such oil.
(6) Administrative action under this subsection is not subject to sections 551 and 553 through 559 of title 5, United States Code.
Any domestically produced crude oil transported by pipeline over rights-of-way granted pursuant to this section, except such crude oil which is either exchanged in similar quantity for convenience or increased efficiency of transportation with persons or the government of an adjacent foreign state, or which is temporarily exported for convenience or increased efficiency of transportation across parts of an adjacent foreign state and reenters the United States, shall be subject to all of the limitations and licensing requirements of the Export Administration Act of 1979 (50 U.S.C. App. 2401 and following) and, in addition, before any crude oil subject this section may be exported under the limitations and licensing requirements and penalty and enforcement provisions of the Export Administration Act of 1979 the President must make and publish an express finding that such exports will not diminish the total quantity or quality of petroleum available to the United States, and are in the national interest and are in accord with the provisions of the Export Administration Act of 1979:
Any petroleum produced from the naval petroleum reserves, except such petroleum which is either exchanged in similar quantities for convenience or increased efficiency of transportation with persons or the government of an adjacent foreign state, or which is temporarily exported for convenience or increased efficiency of transportation across parts of an adjacent foreign state and reenters the United States, shall be subject to all of the limitations and licensing requirements of the Export Administration Act of 1979 (50 U.S.C. App. 2401 et seq.) and, in addition, before any petroleum subject to this section may be exported under the limitations and licensing requirement and penalty and enforcement provisions of the Export Administration Act of 1979, the President must make and publish an express finding that such exports will not diminish the total quality or quantity of petroleum available to the United States and that such exports are in the national interest and are in accord with the Export Administration Act of 1979.
(a) Application of Export Administration provisions.
Except as provided in subsection (d) of this section, any oil or gas produced from the outer Continental Shelf shall be subject to the requirements and provisions of the Export Administration Act of 1969. Note that
(b) Condition precedent to exportation; express finding by President of no increase in reliance on imported oil or gas.
Before any oil or gas subject to this section may be exported under the requirements and provisions of the Export Administration Act of 1969, the President shall make and publish an express finding that such exports will not increase reliance on imported oil or gas, are in the national interest, and are in accord with the provisions of the Export Administration Act of 1969.
(c) Report of findings by President to Congress; joint resolution of disagreement with findings of President.
The President shall submit reports to Congress containing findings made under this section, and after the date of receipt of such reports Congress shall have a period of sixty calendar days, thirty days of which Congress must have been in session, to consider whether export under the terms of this section are in the national interest. If the Congress within such time period passes a concurrent resolution of disapproval stating disagreement with the President's finding concerning the national interest, further exports made pursuant to such Presidential findings shall cease.
(d) Exchange or temporary exportation of oil and gas for convenience or efficiency of transportation.
The provisions of this section shall not apply to any oil or gas which is either exchanged in similar quantity for convenience or increase efficiency of transportation with persons or the government of a foreign state, or which is temporarily exported for convenience or increased efficiency of transportation across parts of an adjacent foreign state and reenters the United States, or which is exchanged or exported pursuant to an existing international agreement.
50 U.S.C. app. 2401
(a)
(1) Issuance, amendment, revocation, or appeal of a regulation. (These requests may be submitted to BIS at any time.)
(2) Denial or probation orders, civil penalties, sanctions, or other actions under parts 764 and 766 of the EAR, except that, any appeal from an action taken under § 766.25 and any appeal from an action taken in accordance with § 766.23 to make an action taken under § 766.25 applicable to a related person shall be subject to the appeals procedures described in this part 756.
(b)
(a)
(b)
(2)
(3)
(4)
(ii)
(iii)
(iv)
(v)
(c)
(2)
(d)
50 U.S.C. app. 2401
(a)
(b)
(1) For all exports of items subject to the EAR that are destined to a country in Country Group E:1 of Supplement No. 1 to part 740 of the EAR regardless of value (
(2) For all exports subject to the EAR that require a license regardless of value, or destination;
(3) For all exports of commodities and mass market software subject to the EAR when the value of the commodities or mass market software classified under a single Schedule B Number (or Harmonized Tariff Schedule number) is over $2,500, except as exempted by the Foreign Trade Statistics Regulations (FTSR) in 15 CFR part 30 and referenced in paragraph (c) of this section; or
(4) For all exports of items subject to the EAR that will be transshipped through Canada to a third destination, where the export would require an SED or AES record or license if shipped directly to the final destination from the United States (see 15 CFR 30.58(c) of the FTSR).
In addition to the Shipper's Export Declaration for exports, the Bureau of Census Foreign Trade Statistics Regulations provide for a specific Shipper's Export Declaration for In-Transit Goods (Form 7513). See 15 CFR 30.3 and 30.8 of the FTSR.
(c)
(1) License Exception Baggage (BAG), as set forth in § 740.14 of the EAR. See 15 CFR 30.56 of the FTSR;
(2) License Exception Gift Parcels and Humanitarian Donations (GFT), as set forth in § 740.12 of the EAR. See 15 CFR 30.55(g) of the FTSR;
(3) License Exception Aircraft and Vessels (AVS), as set forth in § 740.15 of the EAR. See 15 CFR 30.55(l) of the FTSR;
(4) License Exception Governments and International Organizations (GOV), as set forth in § 740.11 of the EAR. See 15 CFR 30.53 of the FTSR;
(5) License Exception Technology and Software Under Restriction (TSR), as set forth in § 740.6 of the EAR. See 15 CFR 30.55(n) of the FTSR; or
(6) License Exception Temporary Imports, Exports, and Reexports (TMP) “tools of trade”, as set forth in § 740.9(a)(2)(i) of the EAR. See 15 CFR 30.56(b) of the FTSR.
(d)
(e)
(f)
(1) Export of the items described on the SED or AES record is authorized under the terms and conditions of a license issued by BIS; is in accordance with the terms and conditions of a License Exception; is authorized under “NLR” as no license is required for the shipment; or is not subject to the EAR;
(2) Statements on the SED or AES record are in conformity with the contents of any license issued by BIS, with the possible exception of the exporter block in routed transactions; and
(3) All information shown on the SED or AES record is true, accurate, and complete.
(g)
(1)
(2)
(3)
(h)
(1) An agent must obtain a power of attorney or other written authorization in the following circumstances:
(i) An agent that represents a foreign principal party in interest in a routed transaction must obtain a power of attorney or other written authorization that sets forth his authority; and
(ii) An agent that applies for a license on behalf of a principal party in interest must obtain a power of attorney or other written authorization that sets forth the agent's authority to apply for the license on behalf of the principal.
The Bureau of Census Foreign Trade Statistics Regulations impose additional requirements for a power of attorney or other written authorization. See 15 CFR 30.4(e) of the FTSR.
(2) This requirement for a power of attorney or other written authorization is a legal requirement aimed at ensuring that the parties to a transaction negotiate and understand their responsibilities. The absence of a power of attorney or other written authorization does not prevent BIS from using other evidence to establish the existence of an agency relationship for purposes of imposing liability.
(i)
The Census Bureau's Foreign Trade Statistics Regulations (FTSR) (15 CFR Part 30) contain provisions for filing Shipper's Export Declarations (SEDs) electronically using the Automated Export System (AES). In order to use AES, you must apply directly to the Census Bureau for certification and approval through a Letter of Intent (
(a)
(b)
(1)
(i) Have you been charged with, convicted of, or penalized for, any violation of the EAR or any statute described in § 766.25 of the EAR?
(ii) Have you been notified by any government official of competent authority that you are under investigation for any violation of the EAR or any statute described in § 766.25 of the EAR?
(2)
I (We) certify that I (we) have established adequate internal procedures and safeguards to comply with the requirements set forth in the U.S. Department of Commerce Export Administration Regulations (EAR) and Foreign Trade Statistics Regulations (FTSR). These procedures and safeguards include means for:
(i) Making a proper determination as to whether a license is required for a particular export;
(ii) Receipt of notification of approval of the export license, if required, before the export is made;
(iii) Compliance with all the terms and conditions of the license, License Exception, or NLR provisions of the EAR as applicable;
(iv) Return of revoked or suspended licenses to BIS in accordance with § 750.8(b) of the EAR, if requested;
(v) Compliance with the destination control statement provisions of § 758.6 of the EAR;
(vi) Compliance with the prohibition against export transactions that involve persons who have been denied U.S. export privileges; and
(vii) Compliance with the recordkeeping requirements of part 762 of the EAR.
I (we) agree that my (our) office records and physical space will be made available for inspection by the Bureau of the Census, BIS, or the U.S. Customs Service, upon request.
(c)
(1) Applicants have not been approved for Option 4 filing privileges by the Census Bureau or other agency;
(2) Applicants are denied persons; or
(3) Exports are destined to a country in Country Group E:1 (Supplement No.1 to part 740 of the EAR).
(d)
(2) For information about BIS's Option 4 approval process to use AES Option 4 for items subject to the EAR, contact: Director, Office of Enforcement Analysis, Bureau of Industry and Security, (202) 482-4255, facsimile: (202) 482-0971.
All parties that participate in transactions subject to the EAR must comply with the EAR. Parties are free to structure transactions as they wish, and to delegate functions and tasks as they deem necessary, as long as the transaction complies with the EAR. However, acting through a forwarding or other agent, or delegating or redelegating authority, does not in and of itself relieve anyone of responsibility for compliance with the EAR.
(a)
(b)
For statistical purposes, the Foreign Trade Statistics Regulations (15 CFR part 30) have a different definition of “exporter” from the Export Administration Regulations. Under the FTSR the “exporter” will always be the U.S. principal party in interest. For purposes of licensing responsibility under the EAR, the U.S. agent of the foreign principal party in interest may be the “exporter” in a routed transaction.
(c)
(d)
(a)
(b)
(1) BIS grants an extension; or
(2) Prior to midnight on the date of expiration on the license, the items:
(i) Were laden aboard the vessel;
(ii) Were located on a pier ready for loading and not for storage, and were booked for a vessel that was at the pier ready for loading; or
(iii) The vessel was expected to be at the pier for loading before the license expired, but exceptional and unforseen circumstances delayed it, and BIS or the U.S. Customs Service makes a judgment that undue hardship would result if a license extension were required.
(c)
(a)
(b)
(c)
(2)
(ii)
(d)
(e)
(2)
(A) A copy of the manifest of the diverted cargo;
(B) Identification of the place of unloading;
(C) Statement that explains why the unloading was necessary; and
(D) A proposal for disposition of the items and a request for authorization for such disposition from BIS.
(ii)
The Destination Control Statement (DCS) must be entered on the invoice and on the bill of lading, air waybill, or other export control document that accompanies the shipment from its point of origin in the United States to the ultimate consignee or end-user abroad. The person responsible for preparation of those documents is responsible for entry of the DCS. The DCS is required for all exports from the United States of items on the Commerce Control List that are not classified as EAR99, unless the export may be made under License Exception BAG or GFT (see part 740 of the EAR). At a minimum, the DCS must state: “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.”
(a)
(1) Exports without a license issued by BIS are either outside the scope of the license requirements of the Export Administration Regulations or authorized by a License Exception; and
(2) Exports purporting to be authorized by licenses issued by BIS are, in fact, so authorized and the transaction complies with the terms of the license.
(b)
(1)
(i)
(ii)
(iii)
(A)
(B)
(C)
(2)
(ii)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(a)
(b)
(1) Return the shipment to the United States or cause it to be returned or;
(2) Unload the shipment at a port of call and take steps to assure that it is placed in custody under bond or other guaranty not to enter the commerce of any foreign country without prior approval of BIS. For the purpose of this section, the furnishing of a copy of the order to any person included within the definition of exporting carrier will be sufficient notice of the order to the exporting carrier.
(c)
(d)
(1) The Office of Export Enforcement at the following address: Room H-4520, U.S. Department of Commerce, 14th Street and Constitution Ave., N.W., Washington D.C. 20230, Telephone: (202) 482 1208, Facsimile: (202) 482-0964; and
(2) The person in actual possession or control of the shipment.
The provisions of this part 758 apply only to exports regulated by BIS. Nothing contained in this part 758 shall relieve any person from complying with any other law of the United States or rules and regulations issued thereunder, including those governing SEDs, AES records, and manifests, or any applicable rules and regulations of the Bureau of Customs and Border Protection or Bureau of Immigration and Customs Enforcement.
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C.
(a)
(1) Any partnership, corporation, company, branch, or other form of association or organization, whether organized for profit or non-profit purposes;
(2) Any government, or any department, agency, or commission of any government;
(3) Any trade association, chamber of commerce, or labor union;
(4) Any charitable or fraternal organization; and
(5) Any other association or organization not specifically listed in paragraphs (a)(1) through (4) of this section.
(b)
(i) The government of the United States or any department, agency, or commission thereof;
(ii) The government of any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any subdivision, department, agency, or commission of any such government;
(iii) Any partnership, corporation, company, association, or other entity organized under the laws of paragraph (b)(1)(i) or (ii) of this section;
(iv) Any foreign concern's subsidiary, partnership, affiliate, branch, office, or other permanent establishment in any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States; and
(v) Any domestic concern's foreign subsidiary, partnership, affiliate, branch, office, or other permanent foreign establishment which is controlled in fact by such domestic concern. (See paragraph (c) of this section on “Definition of 'Controlled in Fact'.”)
(2) The term
(3) The term
(4) The term
The following examples are intended to give guidance in determining whether a person is a “United States person.” They are illustrative, not comprehensive.
(i) U.S. bank A has a branch office in foreign country P. Such branch office is a United States person, because it is a permanent foreign establishment of a domestic concern.
(ii) Ten foreign nationals establish a manufacturing plant, A, in the United States, incorporating the plant under New York law.
A is a United States person, because it is a corporation organized under the laws of one of the states of the United States.
(iii) A, a foreign corporation, opens an office in the United States for purposes of soliciting U.S. orders. The office is not separately incorporated.
A's U.S. office is a United States person, because it is a permanent establishment, in the United States, of a foreign concern.
(iv) A, a U.S. individual, owns stock in foreign corporation B.
A is a United States person. However, A is not a “domestic concern,” because the term “domestic concern” does not include individuals.
(v) A, a foreign national resident in the United States, is employed by B, a foreign corporation.
A is a United States person, because he is resident in the United States.
(vi) A, a foreign national, who is resident in a foreign country and is employed by a foreign corporation, makes occasional visits to the United States, for purposes of exploring business opportunities.
A is not a United States person, because he is not a United States resident or national.
(vii) A is an association of U.S. firms organized under the laws of Pennsylvania for the purpose of expanding trade.
A is a United States person, because it is an association organized under the laws of one of the states of the United States.
(viii) At the request of country Y, A, an individual employed by U.S. company B, is transferred to company C as an employee. C is a foreign company owned and controlled by country Y. A, a U.S. national who will reside in Y, has agreed to the transfer provided he is able to retain his insurance, pension, and other benefits. Accordingly, company B has agreed to keep A as an employee in order to protect his employee benefits, and company C has agreed to pay for A's salary. At all times while he works for C, A will be under C's direction and control.
A is not a United States person while under C's direction and control, because he will be resident outside the United States and assigned as an employee to a non-United States person. The arrangement designed to protect A's insurance, pension, and other benefits does not destroy his status as an employee of C so long as he is under the direction and control of C.
(ix) A, a U.S. citizen, has resided in Europe for three years, where he is a self-employed consultant for United States and foreign companies in the communications industry.
A is a United States person, because he is a U.S. national and because he is not a resident outside the United States who is employed by other than a United States person.
(c)
(2) A foreign subsidiary or affiliate of a domestic concern will be presumed to be controlled in fact by that domestic concern, subject to rebuttal by competent evidence, when:
(i) The domestic concern beneficially owns or controls (whether directly or indirectly) more than 50 percent of the outstanding voting securities of the foreign subsidiary or affiliate;
(ii) The domestic concern beneficially owns or controls (whether directly or indirectly) 25 percent or more of the voting securities of the foreign subsidiary or affiliate, if no other person owns or controls (whether directly or indirectly) an equal or larger percentage;
(iii) The foreign subsidiary or affiliate is operated by the domestic concern pursuant to the provisions of an exclusive management contract;
(iv) A majority of the members of the board of directors of the foreign subsidiary or affiliate are also members of the comparable governing body of the domestic concern;
(v) The domestic concern has authority to appoint the majority of the members of the board of directors of the foreign subsidiary or affiliate; or
(vi) The domestic concern has authority to appoint the chief operating officer of the foreign subsidiary or affiliate.
(3) A brokerage firm or other person which holds simple record ownership of securities for the convenience of clients will not be deemed to control the securities.
(4) A domestic concern which owns, directly or indirectly, securities that are immediately convertible at the option of the holder or owner into voting securities is presumed to own or control those voting securities.
(5) A domestic concern's foreign branch office or other unincorporated permanent foreign establishment is deemed to be controlled in fact by such domestic concern under all circumstances.
The following examples are intended to give guidance in determining the circumstances in which a foreign subsidiary, affiliate, or other permanent foreign establishment of a domestic concern is “controlled in fact.” They are illustrative, not comprehensive.
(i) Company A is incorporated in a foreign country. Fifty-one percent of the voting stock of A is owned by U.S. company B.
A is presumed to be controlled in fact by B. This presumption may be rebutted by competent evidence showing that control does not, in fact, lie with B.
(ii) Company A is incorporated in a foreign country. Ten percent of the voting stock of A is owned by U.S. company B. A has an exclusive management contract with B pursuant to which A is operated by B.
As long as such contract is in effect, A is presumed to be controlled in fact by B. This presumption may be rebutted by competent evidence showing that control does not, in fact, lie with B.
(iii) Company A is incorporated in a foreign country. Ten percent of the voting stock of A is owned by U.S. company B. A has 10 persons on its board of directors. Six of those persons are also members of the board of directors of U.S. company B.
A is presumed to be controlled in fact by B. This presumption may be rebutted by competent evidence showing that control does not, in fact, lie with B.
(iv) Company A is incorporated in a foreign country. Thirty percent of the voting securities of A is owned by U.S. company B and no other person owns or controls an equal or larger share.
A is presumed to be controlled in fact by B. This presumption may be rebutted by competent evidence showing that control does not, in fact, lie with B.
(v) Company A is incorporated in a foreign country. In A's articles of incorporation, U.S. company B has been given authority to appoint A's board of directors.
A is presumed to be controlled in fact by B. This presumption may be rebutted by competent evidence showing that control does not, in fact, lie with B.
(vi) Company A is a joint venture established in a foreign country, with equal participation by U.S. company B and foreign company C. U.S. Company B has authority to appoint A's chief operating officer.
A is presumed to be controlled in fact by B. This presumption may be rebutted by competent evidence showing that control does not, in fact, lie with B.
(vii) Same as (vi), except that B has no authority to appoint A's chief operating officer.
B is not presumed to control A, absent other facts giving rise to a presumption of control.
(viii) Company A is incorporated in a foreign country. U.S. companies B, C, and D each own 20 percent of A's voting securities and regularly cast their votes in concert.
A is presumed to be controlled in fact by B, C, and D, because these companies are acting in concert to control A.
(ix) U.S. bank B located in the United States has a branch office, A, in a foreign country. A is not separately incorporated.
A is deemed to be controlled in fact by B, because A is a branch office of a domestic concern.
(x) Company A is incorporated in a foreign country. Fifty-one percent of the voting stock of A is owned by company B, which is incorporated in another foreign country. Fifty-one percent of the voting stock of B is owned by C, a U.S. company.
Both A and B are presumed to be controlled in fact by C. The presumption of C's control over B may be rebutted by competent evidence showing that control over B does not, in fact, lie with C. The presumption of B's control over A (and thus C's control over A) may be rebutted by competent evidence showing that control over A does not, in fact, lie with B.
(xi) B, a U.S. individual, owns 51 percent of the voting securities of A, a manufacturing company incorporated and located in a foreign country.
A is not “controlled in fact” under this part, because it is not controlled by a “domestic concern.”
(d)
(1) For purposes of this part, the activities of a United States person located in the United States are in the interstate or foreign commerce of the United States if they involve the sale, purchase, or transfer of goods or services (including information) between:
(i) Two or more of the several States (including the District of Columbia);
(ii) Any State (including the District of Columbia) and any territory or possession of the United States;
(iii) Two or more of the territories or possessions of the United States; or
(iv) A State (including the District of Columbia), territory or possession of the United States and any foreign country.
(2) For purposes of this part, the export of goods or services from the United States and the import of goods or services into the United States are activities in United States commerce. In addition, the action of a domestic concern in specifically directing the activities of its controlled in fact foreign subsidiary, affiliate, or other permanent foreign establishment is an activity in United States commerce.
(3) Activities of a United States person located in the United States may be in United States commerce even if they are part of or ancillary to activities outside United States commerce. However, the fact that an ancillary activity is in United States commerce does not, in and of itself, mean that the underlying or related activity is in United States commerce.
(4) Hence, the action of a United States bank located in the United States in providing financing from the United States for a foreign transaction that is not in United States commerce is nonetheless itself in United States commerce. However, the fact that the financing is in United States commerce does not, in and of itself, make the underlying foreign transaction an activity in United States commerce, even if the underlying transaction involves a foreign company that is a
(5) Similarly, the action of a United States person located in the United States in providing financial, accounting, legal, t ransportation, or other ancillary services to its controlled in fact foreign subsidiary, affiliate, or other permanent foreign establishment in connection with a foreign transaction is in United States commerce. But the provision of such ancillary services will not, in and of itself, bring the foreign transaction of such subsidiary, affiliate, or permanent foreign establishment into United States commerce.
(6) Any transaction between a controlled in fact foreign subsidiary, affiliate, or other permanent foreign establishment of a domestic concern and a person located in the United States is an activity in United States commerce.
(7) Whether a transaction between such a foreign subsidiary, affiliate, or other permanent foreign establishment and a person located outside the United States is an activity in United States commerce is governed by the following rules.
(8) A transaction between a domestic concern's controlled in fact foreign subsidiary, affiliate, or other permanent foreign establishment and a person outside the United States, involving goods or services (including information but not including ancillary services) acquired from a person in the United States is in United States commerce under any of the following circumstances—
(i) If the goods or services were acquired for the purpose of filling an order from a person outside the United States;
(ii) If the goods or services were acquired for incorporation into, refining into, reprocessing into, or manufacture of another product for the purpose of filling an order from a person outside the United States;
(iii) If the goods or services were acquired for the purpose of fulfilling or engaging in any other transaction with a person outside the United States; or
(iv) If the goods were acquired and are ultimately used, without substantial alteration or modification, in filling an order from, or fulfilling or engaging in any other transaction with, a person outside the United States (whether or not the goods were originally acquired for that purpose). If the goods are indistinguishable as to origin from similar foreign-trade goods with which they have been mingled in a stockpile or inventory, the subsequent transaction involving the goods is presumed to be in United States commerce unless, at the time of filling the order, the foreign-origin inventory on hand was sufficient to fill the order.
(9) For purposes of this section, goods or services are considered to be acquired for the purpose of filling an order from or engaging in any other transaction with a person outside the United States where:
(i) They are purchased by the foreign subsidiary, affiliate, or other permanent foreign establishment upon the receipt of an order from or on behalf of a customer with the intention that the goods or services are to go to the customer;
(ii) They are purchased by the foreign subsidiary, affiliate, or other permanent foreign establishment to meet the needs of specified customers pursuant to understandings with those customers, although not for immediate delivery; or
(iii) They are purchased by the foreign subsidiary, affiliate, or other permanent foreign establishment based on the anticipated needs of specified customers.
(10) If any non-ancillary part of a transaction between a domestic concern's controlled foreign subsidiary, affiliate, or other permanent foreign establishment and a person outside the United States is in United States commerce, the entire transaction is in United States commerce. For example, if such a foreign subsidiary is engaged in filling an order from a non-United States customer both with goods acquired from the United States and with goods acquired elsewhere, the entire transaction with that customer is in United States commerce.
(11) A transaction between a domestic concern's controlled foreign subsidiary, affiliate, or other permanent foreign establishment and a person outside the United States, not involving the purchase, sale, or transfer of goods or services (including information) to or from a person in the United States, is not an activity in United States commerce.
(12) The activities of a domestic concern's controlled foreign subsidiary, affiliate, or other permanent foreign establishment with respect to goods acquired from a person in the United States are not in United States commerce where:
(i) They were acquired without reference to a specific order from or transaction with a person outside the United States; and
(ii) They were further manufactured, incorporated into, refined into, or reprocessed into another product.
(13) The activities of a domestic concern's controlled foreign subsidiary, affiliate, or other permanent foreign establishment with respect to services acquired from a person in the United States are not in United States commerce where:
(i) They were acquired without reference to a specific order from or transaction with a person outside the United States; or
(ii) They are ancillary to the transaction with the person outside the United States.
(14) For purposes of this section, services are
(15) Thus, the provision of the project financing by a United States bank located in the United States to a controlled foreign subsidiary unrelated to the bank is an ancillary service which
(16) Regardless of whether the subsequent disposition of goods or services from the United States is in United States commerce, the original acquisition of goods or services from a person in the United States is an activity in United States commerce subject to this part. Thus, if a domestic concern's controlled foreign subsidiary engages in a prohibited refusal to do business in stocking its inventory with goods from the United States, that action is subject to this part whether or not subsequent sales from that inventory are.
(17) In all the above, goods and services will be considered to have been acquired from a person in the United States whether they were acquired directly or indirectly through a third party, where the person acquiring the goods or services knows or expects, at the time he places the order, that they will be delivered from the United States.
(18) Implementation of a letter of credit in the United States by a United States person located in the United States, including a permanent United States establishment of a foreign concern, is an activity in United States commerce.
(19) Implementation of a letter of credit outside the United States by a United States person located outside the United States is in United States commerce where the letter of credit (a) specifies a United States address for the beneficiary, (b) calls for documents indicating shipment from the United States, or (c) calls for documents indicating that the goods are of United States origin.
(20) See § 760.2(f) of this part on “Letters of Credit” to determine the circumstances in which paying, honoring, confirming, or otherwise implementing a letter of credit is covered by this part.
The following examples are intended to give guidance in determining the circumstances in which an activity is in the interstate or foreign commerce of the United States. They are illustrative, not comprehensive.
(i) U.S. company A exports goods from the United States to a foreign country. A's activity is in U.S. commerce, because A is exporting goods from the United States.
(ii) U.S. company A imports goods into the United States from a foreign country. A's activity is in U.S. commerce, because A is importing goods into the United States.
(iii) U.S. engineering company A supplies consulting services to its controlled foreign subsidiary, B. A's activity is in U.S. commerce, because A is exporting services from the United States.
(iv) U.S. company A supplies consulting services to foreign company B. B is unrelated to A or any other U.S. person.
A's activity is in U.S. commerce even though B, a foreign-owned company located outside the United States, is not subject to this part, because A is exporting services from the United States.
(v) Same as (iv), except A is a bank located in the United States and provides a construction loan to B.
A's activity is in U.S. commerce even though B is not subject to this part, because A is exporting financial services from the United States.
(vi) U.S. company A issues policy directives from time to time to its controlled foreign subsidiary, B, governing the conduct of B's activities with boycotting countries.
A's activity in directing the activities of its foreign subsidiary, B, is an activity in U.S. commerce.
(i) A, a controlled foreign subsidiary of U.S. company B, purchases goods from the United States.
A's purchase of goods from the United States is in U.S. commerce, because A is importing goods from the United States. Whether A's subsequent disposition of these goods is in U.S. commerce is irrelevant. Similarly, the fact that A purchased goods from the United States does not, in and of itself, make any subsequent disposition of those goods an activity in U.S. commerce.
(ii) A, a controlled foreign subsidiary of U.S. company B, receives an order from boycotting country Y for construction materials. A places an order with U.S. company B for the materials.
A's transaction with Y is an activity in U.S. commerce, because the materials are purchased from the United States for the purpose of filling the order from Y.
(iii) A, a controlled foreign subsidiary of U.S. company B, receives an order from boycotting country Y for construction materials. A places an order with U.S. company B for some of the materials, and with U.S. company C, an unrelated company, for the rest of the materials.
A's transaction with Y is an activity in U.S. commerce, because the materials are purchased from the United States for the purpose of filling the order from Y. It makes no difference whether the materials are ordered from B or C.
(iv) A, a controlled foreign subsidiary of U.S. company B, is in the wholesale and retail appliance sales business. A purchases finished air conditioning units from the United States from time to time in order to stock its inventory. A's inventory is also stocked with air conditioning units purchased outside the United States. A receives an order for air conditioning units from Y, a boycotting country. The order is filled with U.S.-origin units in A's inventory.
A's transaction with Y is in U.S. commerce, because its U.S.-origin goods are resold without substantial alteration.
(v) Same as (iv), except that A is in the chemicals distribution business. Its U.S.-origin goods are mingled in inventory with foreign-origin goods.
A's sale to Y of unaltered goods from its general inventory is presumed to be in U.S. commerce unless A can show that at the time of the sale the foreign-origin inventory on hand was sufficient to cover the shipment to Y.
(vi) A, a foreign subsidiary of U.S. company B, receives an order from boycotting country Y for computers. A places an order with U.S. company B for some of the components; with U.S. company C, an unrelated company, for other components; and with foreign company D for the rest of the components. A then assembles the computers and ships them to Y.
A's transaction with Y is an activity in U.S. commerce, because some of the components are acquired from the United States for purposes of filling an order from Y.
(vii) Same as (vi), except A purchases all the components from non-U.S.sources.
A's transaction with Y is not an activity in U.S. commerce, because it involves no export of goods from the United States. It makes no difference whether the technology A uses to manufacture computers was originally acquired from its U.S. parent.
(viii) A, a controlled foreign subsidiary of U.S. company B, manufactures computers. A stocks its general components and parts inventory with purchases made at times from the United States and at times from foreign sources. A receives an order from Y, a boycotting country, for computers. A fills that order by manufacturing the computers using materials from its general inventory.
A's transaction with Y is not in U.S. commerce, because the U.S.-origin components are not acquired for the purpose of meeting the anticipated needs of specified customers in Y. It is irrelevant that A's operations may be based on U.S.-origin technology.
(ix) Same as (viii), except that in anticipation of the order from Y, A orders and receives the necessary materials from the United States.
A's transaction with Y is in U.S. commerce, because the U.S.-origin goods were acquired for the purpose of filling an anticipated order from Y.
(x) A, a controlled foreign subsidiary of U.S. company B, manufactures typewriters. It buys typewriter components both from the United States and from foreign sources. A sells its output in various places throughout the world, including boycotting country Y. Its sales to Y vary from year to year, but have averaged approximately 20 percent of sales for the past five years. A expects that its sales to Y will remain at approximately that level in the years ahead although it has no contracts or orders from Y on hand.
A's sales of typewriters to Y are not in U.S. commerce, because the U.S. components are not acquired for the purpose of filling an order from Y. A general expectancy of future sales is not an “order” within the meaning of this section.
(xi) U.S. company A's corporate counsel provides legal advice to B, its controlled foreign subsidiary, on the applicability of this Part to B's transactions.
While provision of this legal advice is itself an activity in U.S. commerce, it does not, in and of itself, bring B's activities into U.S. commerce.
(xii) A, a controlled foreign subsidiary of U.S. company B, is in the general construction business. A enters into a contract with boycotting country Y to construct a power plant in Y. In preparing engineering drawings and specifications, A uses the advice and assistance of B.
A's transaction with Y is in U.S. commerce, because B's services are used for purposes of fulfilling the contract with Y. B's services are not ancillary services, because the engineering services in connection with construction of the power plant are part of the services ultimately provided to Y by A.
(xiii) Same as (xii), except that A gets no engineering advice or assistance from B. However, B's corporate counsel provides legal advice to A regarding the structure of the transaction. In addition, B's corporate counsel draws up the contract documents.
A's transaction with Y is not in U.S. commerce. The legal services provided to A are ancillary services, because they are not part of the services provided to Y by A in fulfillment of its contract with Y.
(xiv) A, a controlled foreign subsidiary of U.S. company B, enters into a contract to construct an apartment complex in boycotting country Y. A will fulfill its contract completely with goods and services from outside the United States. Pursuant to a provision in the contract, B guarantees A's performance of the contract.
A's transaction with Y is in U.S. commerce, because B's guaranty of A's performance involves the acquisition of services from the United States for purposes of fulfilling the transaction with Y, and those services are part of the services ultimately provided to Y.
(xv) Same as (xiv), except that the guaranty of A's performance is supplied by C, a non-U.S. person located outside the United States. However, unrelated to any particular transaction, B from time to time provides general financial, legal, and technical services to A.
A's transaction with Y is not in U.S. commerce, because the services acquired from the United States are not acquired for purposes of fulfilling the contract with Y.
(xvi) A, a foreign subsidiary of U.S. company B, has a contract with boycotting country Y to conduct oil drilling operations in that country. In conducting these operations, A from time to time seeks certain technical advice from B regarding the operation of the drilling rigs.
A's contract with Y is in U.S. commerce, because B's services are sought for purposes of fulfilling the contract with Y and are part of the services ultimately provided to Y.
(xvii) A, a controlled foreign subsidiary of U.S. company B, enters into a contract to sell typewriters to boycotting country Y. A is located in non-boycotting country P. None of the components are acquired from the United States. A engages C, a U.S. shipping company, to transport the typewriters from P to Y.
A's sales to Y are not in U.S. commerce, because in carrying A's goods, C is providing an ancillary service to A and not a service to Y.
(xviii) Same as (xvii), except that A's contract with Y calls for title to pass to Y in P. In addition, the contract calls for A to engage a carrier to make delivery to Y.
A's sales to Y are in U.S. commerce, because in carrying Y's goods, C is providing a service to A which is ultimately provided to Y.
(xix) A, a controlled foreign subsidiary of U.S. company B, has general product liability insurance with U.S. company C. Foreign-origin goods sold from time to time by A to boycotting country Y are covered by the insurance policy.
A's sales to Y are not in U.S. commerce, because the insurance provided by C is an ancillary service provided to A which is not ultimately provided to Y.
(xx) A, a controlled foreign subsidiary of U.S. company B, manufactures automobiles abroad under a license agreement with B. From time to time, A sells such goods to boycotting country Y.
A's sales to Y are not in U.S. commerce, because the rights conveyed by the license are not acquired for the specific purpose of engaging in transactions with Y.
(e)
(2) A United States person has the intent to comply with, further, or support an unsanctioned foreign boycott when such a boycott is at least one of the reasons for that person's decision whether to take a particular prohibited action. So long as that is at least one of the reasons for that person's action, a violation occurs regardless of whether the prohibited action is also taken for non-boycott reasons. Stated differently, the fact that such action was taken for legitimate business reasons does not remove that action from the scope of this part if compliance with an unsanctioned foreign boycott was also a reason for the action.
(3) Intent is a necessary element of any violation of any of the prohibitions under § 760.2. It is not sufficient that one take action that is specifically prohibited by this part. It is essential that one take such action with intent to
(4) Intent in this context means the reason or purpose for one's behavior. It does not mean that one has to agree with the boycott in question or desire that it succeed or that it be furthered or supported. But it does mean that the reason why a particular prohibited action was taken must be established.
(5) Reason or purpose can be proved by circumstantial evidence. For example, if a person receives a request to supply certain boycott information, the furnishing of which is prohibited by this part, and he knowingly supplies that information in response, he clearly intends to comply with that boycott request. It is irrelevant that he may disagree with or object to the boycott itself. Information will be deemed to be furnished with the requisite intent if the person furnishing the information knows that it was sought for boycott purposes. On the other hand, if a person refuses to do business with someone who happens to be blacklisted, but the reason is because that person produces an inferior product, the requisite intent does not exist.
(6) Actions will be deemed to be taken with intent to comply with an unsanctioned foreign boycott if the person taking such action knew that such action was required or requested for boycott reasons. On the other hand, the mere absence of a business relationship with a blacklisted person or with or in a boycotted country does not indicate the existence of the requisite intent.
(7) In seeking to determine whether the requisite intent exists, all available evidence will be examined.
The following examples are intended to illustrate the factors which will be considered in determining whether the required intent exists. They are illustrative, not comprehensive.
(i) U.S. person A does business in boycotting country Y. In selecting firms to supply goods for shipment to Y, A chooses supplier B because B's products are less expensive and of higher quality than the comparable products of supplier C. A knows that C is blacklisted, but that is not a reason for A's selection of B.
A's choice of B rather than C is not action with intent to comply with Y's boycott, because C's blacklist status is not a reason for A's action.
(ii) Same as (i), except that A chooses B rather than C in part because C is blacklisted by Y.
Since C's blacklist status is a reason for A's choice, A's action is taken with intent to comply with Y's boycott.
(iii) U.S. person A bids on a tender issued by boycotting country Y. A inadvertently fails to notice a prohibited certification which appears in the tender document. A's bid is accepted.
A's action in bidding was not taken with intent to comply with Y's boycott, because the boycott was not a reason for A's action.
(iv) U.S. bank A engages in letter of credit transactions, in favor of U.S. beneficiaries, involving the shipments of U.S. goods to boycotting country Y. As A knows, such letters of credit routinely contain conditions requiring prohibited certifications. A fails to take reasonable steps to prevent the implementation of such letters of credit. A receives for implementation a letter of credit which in fact contains a prohibited condition but does not examine the letter of credit to determine whether it contains such a condition.
Although Y's boycott may not be a specific reason for A's action in implementing the letter of credit with a prohibited condition, all available evidence shows that A's action was taken with intent to comply with the boycott, because A knows or should know that its procedures result in compliance with the boycott.
(v) U.S. bank A engages in letter of credit transactions, in favor of U.S. beneficiaries, involving the shipment of U.S. goods to boycotting country Y. As A knows, the documentation accompanying such letters of credit sometimes contains prohibited certifications. In accordance with standard banking practices applicable to A, it does not examine such accompanying documentation. A receives a letter of credit in favor of a U.S. beneficiary. The letter of credit itself contains no prohibited conditions. However, the accompanying documentation, which A does not examine, does contain such a condition.
All available evidence shows that A's action in implementing the letter of credit was not taken with intent to comply with the boycott, because A has no affirmative obligation to go beyond applicable standard banking practices in implementing letters of credit.
(vi) A, a U.S. company, is considering opening a manufacturing facility in boycotted country X. A already has such a facility in boycotting country Y. After exploring
A's decision not to proceed with the plant in X is not action with intent to comply with Y's boycott, because Y's boycott of X is not a reason for A's decision.
(vii) Same as (vi), except that after exploring the business possibilities in X, A concludes that the market does justify the move to X. However, A does not open the plant because of Y's possible objections due to Y's boycott of X.
A's decision not to proceed with the plant in X is action taken with intent to comply with Y's boycott, because Y's boycott is a reason for A's decision.
(viii) A, a U.S. chemical manufacturer, receives a “boycott questionnaire” from boycotting country Y asking, among other things, whether A has any plants located in boycotted country X. A, which has never supported Y's boycott of X, responds to Y's questionnaire, indicating affirmatively that it does have plants in X and that it intends to continue to have plants in X.
A's responding to Y's questionnaire is deemed to be action with intent to comply with Y's boycott because A knows that the questionnaire is boycott-related. It is irrelevant that A does not also wish to support Y's boycott.
(ix) U.S. company A has a manufacturing facility in boycotted country X. A receives an invitation to bid on a construction project in boycotting country Y. The invitation states that all bidders must complete a boycott questionnaire and send it in with the bid. The questionnaire asks for information about A's business relationships with X. Regardless of whether A's bid is successful, A intends to continue its business in X undiminished and in fact is exploring and intends to continue exploring an expansion of its activities in X without regard to Y's boycott.
A may not answer the questionnaire, because, despite A's intentions with regard to its business operations in X, Y's request for completion of the questionnaire is for boycott purposes and by responding, A's action would be taken with intent to comply with Y's boycott.
(a)
(1) No United States person may: refuse, knowingly agree to refuse, require any other person to refuse, or knowingly agree to require any other person to refuse, to do business with or in a boycotted country, with any business concern organized under the laws of a boycotted country, with any national or resident of a boycotted country, or with any other person, when such refusal is pursuant to an agreement with the boycotting country, or a requirement of the boycotting country, or a request from or on behalf of the boycotting country.
(2) Generally, a refusal to do business under this section consists of action that excludes a person or country from a transaction for boycott reasons. This includes a situation in which a United States person chooses or selects one person over another on a boycott basis or takes action to carry out another person's boycott-based selection when he knows or has reason to know that the other person's selection is boycott-based.
(3) Refusals to do business which are prohibited by this section include not only specific refusals, but also refusals implied by a course or pattern of conduct. There need not be a specific offer and refusal to constitute a refusal to do business; a refusal may occur when a United States person has a financial or commercial opportunity and declines for boycott reasons to consider or accept it.
(4) A United States person's use of either a boycott-based list of persons with whom he will not deal (a so-called “blacklist”) or a boycott-based list of persons with whom he will deal (a so-called “whitelist”) constitutes a refusal to do business.
(5) An agreement by a United States person to comply generally with the laws of the boycotting country with which it is doing business or an agreement that local laws of the boycotting country shall apply or govern is not, in and of itself, a refusal to do business. Nor, in and of itself, is use of a contractual clause explicitly requiring a person to assume the risk of loss of non-delivery of his products a refusal to do business with any person who will not
(6) If, for boycott reasons, a United States general manager chooses one supplier over another, or enters into a contract with one supplier over another, or advises its client to do so, then the general manager's actions constitute a refusal to do business under this section. However, it is not a refusal to do business under this section for a United States person to provide management, procurement, or other pre-award services for another person so long as the provision of such pre-award services is customary for that firm (or industry of which the firm is a part), without regard to the boycotting or non-boycotting character of the countries in which they are performed, and the United States person, in providing such services, does not act to exclude a person or country from the transaction for boycott reasons, or otherwise take actions that are boycott-based. For example, a United States person under contract to provide general management services in connection with a construction project in a boycotting country may compile lists of qualified bidders for the client if that service is a customary one and if persons who are qualified are not excluded from that list because they are blacklisted.
(7) With respect to post-award services, if a client makes a boycott-based selection, actions taken by the United States general manager or contractor to carry out the client's choice are themselves refusals to do business if the United States contractor knows or has reason to know that the client's choice was boycott-based. (It is irrelevant whether the United States contractor also provided pre-award services.) Such actions include entering into a contract with the selected supplier, notifying the supplier of the client's choice, executing a contract on behalf of the client, arranging for inspection and shipment of the supplier's goods, or taking any other action to effect the client's choice. (But see § 760.3(d) on “Compliance with Unilateral Selection” as it may apply to post-award services.)
(8) An agreement is not a prerequisite to a violation of this section since the prohibition extends to actions taken pursuant not only to agreements but also to requirements of, and requests from or on behalf of, a boycotting country.
(9) Agreements under this section may be either express or implied by a course or pattern of conduct. There need not be a direct request from a boycotting country for action by a United States person to have been taken pursuant to an agreement with or requirement of a boycotting country.
(10) This prohibition, like all others, applies only with respect to a United States person's activities in the interstate or foreign commerce of the United States and only when such activities are undertaken with intent to comply with, further, or support an unsanctioned foreign boycott. The mere absence of a business relationship with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with national(s) or resident(s) of the boycotted country, or with any other person does not indicate the existence of the required intent.
The following examples are intended to give guidance in determining the circumstances in which, in a boycott situation, a refusal to do business or an agreement to refuse to do business is prohibited. They are illustrative, not comprehensive.
(i) A, a U.S. manufacturer, receives an order for its products from boycotting country Y. To fill that order, A solicits bids from U.S. companies B and C, manufacturers of components used in A's products. A does not, however, solicit bids from U.S. companies D or E, which also manufacture such components, because it knows that D and E are restricted from doing business in Y and that their products are, therefore, not importable into that country.
Company A may not refuse to solicit bids from D and E for boycott reasons, because to do so would constitute a refusal to do business with those persons.
(ii) A, a U.S. exporter, uses company B, a U.S. insurer, to insure the shipment of its goods to all its overseas customers. For the
A's action constitutes a refusal to do business with B.
(iii) A, a U.S. exporter, purchases all its liability insurance from company B, a U.S. company that does business in boycotted country X. A wishes to expand its operations into country Y, the boycotting country. Before doing so, A decides to switch from insurer B to insurer C in anticipation of a request from Y that A sever its relations with B as a condition of doing business in Y.
A may not switch insurers for this reason, because doing so would constitute a refusal to do business with B.
(iv) U.S. company A exports goods to boycotting country Y. In selecting vessels to transport the goods to Y, A chooses only from among carriers which call at ports in Y.
A's action is not a refusal to do business with carriers which do not call at ports in Y.
(v) A, a U.S. bank with a branch office in boycotting country Y, sends representatives to boycotted country X to discuss plans for opening a branch office in X. Upon learning of these discussions, an official of the local boycott office in Y advises A's local branch manager that if A opens an office in X it will no longer be allowed to do business in Y. As a result of this notification, A decides to abandon its plans to open a branch in X.
Bank A may not abandon its plans to open a branch in X as a result of Y's notification, because doing so would constitute a refusal to do business in boycotted country X.
(vi) A, a U.S. company that manufactures office equipment, has been restricted from doing business in boycotting country Y because of its business dealings with boycotted country X. In an effort to have itself removed from Y's blacklist, A ceases its business in X.
A's action constitutes a refusal to do business in boycotted country X.
(vii) A, a U.S. computer company, does business in boycotting country Y. A decides to explore business opportunities in boycotted country X. After careful analysis of possible business opportunities in X, A decides, solely for business reasons, not to market its products in X.
A's decision not to proceed is not a refusal to do business, because it is not based on boycott considerations. A has no affirmative obligation to do business in X.
(viii) A, a U.S. oil company with operations in boycotting country Y, has regularly purchased equipment from U.S. petroleum equipment suppliers B, C, and D, none of whom is on the blacklist of Y. Because of its satisfactory relationship with B, C, and D, A has not dealt with other suppliers, including supplier E, who is blacklisted by Y.
A's failure affirmatively to seek or secure business with blacklisted supplier E is not a refusal to do business with E.
(ix) Same as (viii), except U.S. petroleum equipment supplier E, a company on boycotting country Y's blacklist, offers to supply U.S. oil company A with goods comparable to those provided by U.S. suppliers B, C, and D. A, because it has satisfactorily, established relationships with suppliers B, C, and D, does not accept supplier E's offer.
A's refusal of supplier E's offer is not a refusal to do business, because it is based solely on non-boycott considerations. A has no affirmative obligation to do business with E.
(x) A, a U.S. construction company, enters into a contract to build an office complex in boycotting country Y. A receives bids from B and C, U.S. companies that are equally qualified suppliers of electrical cable for the project. A knows that B is blacklisted by Y and that C is not. A accepts C's bid, in part because C is as qualified as the other potential supplier and in part because C is not blacklisted.
A's decision to select supplier C instead of blacklisted supplier B is a refusal to do business, because the boycott was one of the reasons for A's decision.
(xi) A, a U.S. general contractor, has been retained to construct a highway in boycotting country Y. A circulates an invitation to bid to U.S. manufacturers of road-building equipment. One of the conditions listed in the invitation to bid is that, in order for A to obtain prompt service, suppliers will be required to maintain a supply of spare parts and a service facility in Y. A includes this condition solely for commercial reasons unrelated to the boycott. Because of this condition, however, those suppliers on Y's blacklist do not bid, since they would be unable to satisfy the parts and services requirements.
A's action is not a refusal to do business, because the contractual condition was included solely for legitimate business reasons and was not boycott-based.
(xii) Company A, a U.S. oil company, purchases drill bits from U.S. suppliers for export to boycotting country Y. In its purchase orders, A includes a provision requiring the supplier to make delivery to A's facilities in Y and providing that title to the goods does not pass until delivery has been made. As is customary under such an arrangement, the supplier bears all risks of loss, including loss from fire, theft, perils of the sea, and inability to clear customs, until title passes.
Insistence on such an arrangement does not constitute a refusal to do business, because this requirement is imposed on all suppliers whether they are blacklisted or not. (But see § 760.4 on “Evasion”.)
(xiii) A, a U.S. engineering and construction company, contracts with a government
A's actions do not constitute a refusal to do business, because, in the provision of pre-award services, A has not excluded the other bidders and because A customarily provides such services to its clients.
(xiv) Same as (xiii), except that in compiling a list of prospective suppliers, A deletes suppliers he knows his client will refuse to select because they are blacklisted. A knows that including the names of blacklisted suppliers will neither enhance their chances of being selected nor provide his client with a useful service, the function for which he has been retained.
A's actions, which amount to furnishing a so-called “whitelist”, constitute refusals to do business, because A's pre-award services have not been furnished without regard to boycott considerations.
(xv) A, a U.S. construction firm, provides its boycotting country client with a permissible list of prospective suppliers, B, C, D, and E. The client independently selects and awards the contract to C, for boycott reasons, and then requests A to advise C of his selection, negotiate the contract with C, arrange for the shipment, and inspect the goods upon arrival. A knows that C was chosen by the client for boycott reasons.
A's action in complying with his client's direction is a refusal to do business, because A's post-award actions carry out his client's boycott-based decision. (Note: Whether A's action comes within the unilateral selection exception depends upon factors discussed in § 760.3(d) of this part).
(xvi) Same as (xv), except that A is building the project on a turnkey basis and will retain title until completion. The client instructs A to contract only with C.
A's action in contracting with C constitutes a refusal to do business, because it is action that excludes blacklisted persons from the transaction for boycott reasons. (Note: Whether A's action comes within the unilateral selection exception depends upon factors discussed in § 760.3(d) of this part).
(xvii) A, a U.S. exporter of machine tools, receives an order for drill presses from boycotting country Y. The cover letter from Y's procurement official states that A was selected over other U.S. manufacturers in part because A is not on Y's blacklist.
A's action in filling this order is not a refusal to do business, because A has not excluded anyone from the transaction.
(xviii) A, a U.S. engineering firm under contract to construct a dam in boycotting country Y, compiles, on a non-boycott basis, a list of potential heavy equipment suppliers, including information on their qualifications and prior experience. A then solicits bids from the top three firms on its list—B, C, and D—because they are the best qualified. None of them happens to be blacklisted. A does not solicit bids from E, F, or G, the next three firms on the list, one of whom is on Y's blacklist.
A's decision to solicit bids from only B, C, and D, is not a refusal to do business with any person, because the solicited bidders were not selected for boycott reasons.
(xix) U.S. bank A receives a letter of credit in favor of U.S. beneficiary B. The letter of credit requires B to certify that he is not blacklisted. B meets all other conditions of the letter of credit but refuses to certify as to his blacklist status. A refuses to pay B on the letter of credit solely because B refuses to certify as to his blacklist status.
A has refused to do business with another person pursuant to a boycott requirement or request.
(xx) U.S. bank A receives a letter of credit in favor of U.S. beneficiary B. The letter of credit requires B to provide a certification from the steamship line that the vessel carrying the goods is not blacklisted. B seeks payment from A and meets all other conditions of the letter of credit but refuses or is unable to provide the certification from the steamship line about the vessel's blacklist status. A refuses to pay B on the letter of credit solely because B cannot or will not provide the certification.
A has required another person to refuse to do business pursuant to a boycott requirement or request by insisting that B obtain such a certificate. (Either A or B may request an amendment to the letter of credit substituting a certificate of vessel eligibility, however. See Example (xxi) below).
(xxi) U.S. bank A receives a letter of credit from a bank in boycotting country Y in favor of U.S. beneficiary B. The letter of credit requires B to provide a certification from the steamship line that the vessel carrying the goods is eligible to enter the ports in Y. B seeks payment from A and meets all other conditions of the letter of credit. A refuses to pay B solely because B cannot or will not provide the certification.
A has neither refused, nor required another person to refuse, to do business with another person pursuant to a boycott requirement or request because a request for a vessel eligibility certificate to be furnished by the steamship line is not a prohibited condition. (See Supplement No. 1 to this part, paragraph (I)(B), “Shipping Certificate”.)
(xxii) U.S. bank A confirms a letter of credit in favor of U.S. beneficiary B. The letter of credit contains a requirement that B certify that he is not blacklisted. B presents the letter of credit to U.S. bank C, a correspondent of bank A. B does not present the certificate of blacklist status to bank C, but, in accordance with these rules, bank C pays B, and then presents the letter of credit and documentation to bank A for reimbursement. Bank A refuses to reimburse bank C because the blacklist certification of B is not included in the documentation.
A has required another person to refuse to do business with a person pursuant to a boycott requirement or request by insisting that C obtain the certificate from B.
(xxiii) U.S. bank A receives a letter of credit in favor of U.S. beneficiary B. The letter of credit requires B to certify that he is not blacklisted. B fails to provide such a certification when he presents the documents to A for payment. A notifies B that the certification has not been submitted.
A has not refused to do business with another person pursuant to a boycott requirement by notifying B of the omitted certificate. A may not refuse to pay on the letter of credit, however, if B states that B will not provide such a certificate.
(xxiv) U.S. bank A receives a letter of credit in favor of U.S. beneficiary B from the issuing bank for the purpose of confirmation, negotiation or payment. The letter of credit requires B to certify that he is not blacklisted. A notifies B that it is contrary to the policy of A to handle letters of credit containing this condition and that, unless an amendment is obtained deleting this condition, A will not implement the letter of credit.
A has not refused to do business with another person pursuant to a boycott requirement, because A has indicated its policy against implementing the letter of credit containing the term without regard to B's ability or willingness to furnish such a certificate.
(i) A, a U.S. construction firm, is retained by an agency of boycotting country Y to build a primary school. The proposed contract contains a clause stating that A “may not use goods or services in the project that are produced or provided by any person restricted from having a business relationship with country Y by reason of Y's boycott against country X”.
A's action in entering into such a contract would constitute an agreement to refuse to do business, because it is an agreement to exclude blacklisted persons from the transaction. A may, however, renegotiate this clause so that it does not contain terms prohibited by this part.
(ii) A, a U.S. manufacturer of commercial refrigerators and freezers, receives an invitation to bid from boycotting country Y. The tender states that the bidder must agree not to deal with companies on Y's blacklist. A does not know which companies are on the blacklist; however, A submits a bid without taking exception to the boycott conditions. A's bid makes no commitment regarding not dealing with certain companies.
At the point when A submits its bid without taking exception to the boycott request in Y's tender, A has agreed to refuse to do business with blacklisted persons, because the terms of Y's tender require A to agree to refuse to do business.
(iii) A, a U.S. construction firm, is offered a contract to perform engineering and construction services in connection with a project located in boycotting country Y. The contract contains a clause stating that, in the event of a contract dispute, the laws of Y will apply.
A may enter into the contract. Agreement that the laws of boycotting country Y will control in resolving a contract dispute is not an agreement to refuse to do business.
(iv) Same as (iii), except that the contract contains a clause that A and its employees will comply with the laws of boycotting country Y. A knows that Y has a number of boycott laws.
Such an agreement is not, in and of itself, an agreement to refuse to do business. If, however, A subsequently refuses to do business with someone because of the laws of Y, A's action would be a refusal to do business.
(v) Same as (iv), except that the contract contains a clause that A and its employees will comply with the laws of boycotting country Y, “including boycott laws.”
A's agreeing, without qualification, to comply with local boycott laws constitutes an agreement to refuse to do business.
(vi) Same as (v), except that A inserts a proviso “except insofar as Y's laws conflict with U.S. laws,” or words to that effect.
Such an agreement is not an agreement to refuse to do business.
(vii) A, a U.S. general contractor, is retained to construct a pipeline in boycotting country Y. A provision in the proposed contract stipulates that in purchasing equipment, supplies, and services A must give preference to companies located in host country Y.
A may agree to this contract provision. Agreeing to a “buy local” contract provision is not an agreement to refuse to do business, because A's agreement is not made for boycott reasons.
(viii) A, a U.S. exporter planning to sell retail goods to customers in boycotting country Y, enters into a contract to purchase goods wholesale from B, a U.S. appliance manufacturer. A's contract with B includes a provision stipulating that B may not use
A's contract constitutes a refusal to do business, because it would require another person, B, to refuse to do business with other persons for boycott reasons. B may not agree to such a contract, because it would be agreeing to refuse to do business with other persons for boycott reasons.
(ix) Same as (viii), except that A and B reach an implicit understanding that B will not use components or services of blacklisted companies in the manufacture of goods to be exported to Y. In the manufacture of appliances to be sold to A for export to non-boycotting countries, B uses components manufactured by blacklisted companies.
The actions of both A and B constitute agreement to refuse to do business. The agreement is implied by their pattern of conduct.
(x) Boycotting country Y orders goods from U.S. company B. Y opens a letter of credit with foreign bank C in favor of B. The letter of credit specifies that negotiation of the letter of credit with a bank that appears on the country X boycott blacklist is prohibited. U.S. bank A, C's correspondent bank, advises B of the letter of credit. B presents documentation to bank A seeking to be paid on the letter of credit, without amending or otherwise taking exception to the boycott condition.
B has agreed to refuse to do business with blacklisted banks because, by presenting the letter of credit for payment, B has accepted all of its terms and conditions.
(b)
(1) No United States person may:
(i) Refuse to employ or otherwise discriminate against any individual who is a United States person on the basis of race, religion, sex, or national origin;
(ii) Discriminate against any corporation or other organization which is a United States person on the basis of the race, religion, sex, or national origin of any owner, officer, director, or employee of such corporation or organization;
(iii) Knowingly agree to take any of the actions described in paragraph (b)(1)(i) and (ii) of this section; or
(iv) Require or knowingly agree to require any other person to take any of the actions described in paragraph (b)(1)(i) and (ii) of this section.
(2) This prohibition shall apply whether the discriminatory action is taken by a United States person on its own or in response to an agreement with, request from, or requirement of a boycotting country. This prohibition, like all others, applies only with respect to a United States person's activities in the interstate or foreign commerce of the United States and only when such activities are undertaken with intent to comply with, further, or support an unsanctioned foreign boycott.
(3) The section does not supersede or limit the operation of the civil rights laws of the United States.
The following examples are intended to give guidance in determining the circumstances in which the taking of particular discriminatory actions is prohibited. They are illustrative, not comprehensive.
(i) U.S. construction company A is awarded a contract to build an office complex in boycotting country Y. A, believing that employees of a particular religion will not be permitted to work in Y because of Y's boycott against country X, excludes U.S. persons of that religion from consideration for employment on the project.
A's refusal to consider qualified U.S. persons of a particular religion for work on the project in Y constitutes a prohibited boycott-based discriminatory action against U.S. persons on the basis of religion.
(ii) Same as (i), except that a clause in the contract provides that “no persons of country X origin are to work on this project.”
A's agreement constitutes a prohibited boycott-based agreement to discriminate against U.S. persons, among others, on the basis of national origin.
(iii) Same as (i), except that a clause in the contract provides that “no persons who are citizens, residents, or nationals of country X are to work on this project.”
A's agreement does not constitute a boycott-based agreement to discriminate against U.S. persons on the basis of race, religion, sex, or national origin, because the clause requires exclusion on the basis of citizenship, residency, and nationality only.
(iv) U.S. construction company A enters into a contract to build a school in boycotting country Y. Y's representative orally tells A that no persons of country X origin are to work on the project.
A may not comply, because to do so would constitute discrimination on the basis of national origin.
It makes no difference that A learned of Y's requirement orally. It makes no difference how A learns about Y's discriminatory requirement.
(v) Boycotting country Y tenders an invitation to bid on a construction project in Y. The tender requires that the successful bidder's personnel will be interviewed and that persons of a particular religious faith will not be permitted to work on the project. Y's requirement is based on its boycott of country X, the majority of whose citizens are of that particular faith.
Agreement to this provision in the tender document by a U.S. person would constitute a prohibited agreement to engage in boycott-based discrimination against U.S. persons of a particular religion.
(vi) Same as (v), except that the tender specifies that “women will not be allowed to work on this project.”
Agreement to this provision in the tender by a U.S. person does not constitute a prohibited agreement to engage in boycott-based discrimination, because the restriction against employment of women is not boycott-based. Such an agreement may, however, constitute a violation of U.S. civil rights laws.
(vii) A is a U.S. investment banking firm. As a condition of participating in an underwriting of securities to be issued by boycotting country Y, A is required to exclude investment banks owned by persons of a particular faith from participation in the underwriting. Y's requirement is based on its boycott of country X, the majority of whose citizens are of that particular faith.
A's agreement to such a provision constitutes a prohibited agreement to engage in boycott-based discrimination against U.S. persons on the basis of religion. Further, if A requires others to agree to such a condition, A would be acting to require another person to engage in such discrimination.
(viii) U.S. company A is asked by boycotting country Y to certify that A will not use a six-pointed star on the packaging of its products to be imported into Y. The requirement is part of the enforcement effort by Y of its boycott against country X.
A may not so certify. The six-pointed star is a religious symbol, and the certification by A that it will not use such a symbol constitutes a statement that A will not ship products made or handled by persons of that religion.
(ix) Same as (viii), except that A is asked to certify that no symbol of boycotted country X will appear on the packaging of its products imported into Y.
Such a certification conveys no statement about any person's religion and, thus, does not come within this prohibition.
(c)
(1) No United States person may:
(i) Furnish information about the race, religion, sex, or national origin of any United States person;
(ii) Furnish information about the race, religion, sex, or national origin of any owner, officer, director, or employee of any corporation or other organization which is a United States person;
(iii) Knowingly agree to furnish information about the race, religion, sex, or national origin of any United States person; or
(iv) Knowingly agree to furnish information about the race, religion, sex, or national origin of any owner, officer, director, or employee of any corporation or other organization which is a United States person.
(2) This prohibition shall apply whether the information is specifically requested or is offered voluntarily by the United States person. It shall also apply whether the information requested or volunteered is stated in the affirmative or the negative.
(3) Information about the place of birth of or the nationality of the parents of a United States person comes within this prohibition, as does information in the form of code words or symbols which could identify a United States person's race, religion, sex, or national origin.
(4) This prohibition, like all others, applies only with respect to a United States person's activities in the interstate or foreign commerce of the United States and only when such activities are undertaken with intent to comply with, further, or support an unsanctioned foreign boycott.
The following examples are intended to give guidance in determining the circumstances in which the furnishing of discriminatory information is prohibited. They are illustrative, not comprehensive.
(i) U.S. company A receives a boycott questionnaire from boycotting country Y asking whether it is owned or controlled by persons of a particular faith, whether it has any persons on its board of directors who are of that faith, and what the national origin of its
A may not answer the questionnaire, because A would be furnishing information about the religion and national origin of U.S. persons for purposes of complying with or supporting Y's boycott against X.
(ii) U.S. company A, located in the United States, is asked by boycotting country Y to certify that A has no persons of a particular national origin on its board of directors. A knows that Y's purpose in asking for the certification is to enforce its boycott against country X.
A may not make such a certification, because A would be furnishing information about the national origin of U.S. persons for purposes of complying with or supporting Y's boycott against X.
(iii) U.S. company A believes that boycotting country Y will select A's bid over those of other bidders if A volunteers that it has no shareholders, officers, or directors of a particular national origin. A's belief is based on its knowledge that Y generally refuses, as part of its boycott against country X, to do business with companies owned, controlled, or managed by persons of this particular national origin.
A may not volunteer this information, because it would be furnishing information about the national origin of U.S. persons for purposes of complying with or supporting Y's boycott against X.
(iv) U.S. company A has a contract to construct an airport in boycotting country Y. Before A begins work, A is asked by Y to identify the national origin of its employees who will work on the site. A knows or has reason to know that Y is seeking this information in order to enforce its boycott against X.
A may not furnish this information, because A would be providing information about the national origin of U.S. persons for purposes of complying with or supporting Y's boycott against X.
(v) Same as (iv), except that in order to assemble its work force on site in Y, A sends visa forms to its employees and asks that the forms be returned to A for transmittal to Y's consulate or embassy. A, itself, furnishes no information about its employees, but merely transmits the visa forms back and forth.
In performing the ministerial function of transmitting visa forms, A is not furnishing information about any U.S. person's race, religion, sex, or national origin.
(vi) Same as (iv), except that A is asked by Y to certify that none of its employees in Y will be women, because Y's laws prohibit women from working.
Such a certification does not constitute a prohibited furnishing of information about any U.S. person's sex, since the reason the information is sought has nothing to do with Y's boycott of X.
(vii) U.S. company A is considering establishing an office in boycotting country Y. In order to register to do business in Y, A is asked to furnish information concerning the nationalities of its corporate officers and board of directors.
A may furnish the information about the nationalities of its officers and directors, because in so doing A would not be furnishing information about the race, religion, sex, or national origin of any U.S. person.
(d)
(1) No United States person may furnish or knowingly agree to furnish information concerning his or any other person's past, present or proposed business relationships:
(i) With or in a boycotted country;
(ii) With any business concern organized under the laws of a boycotted country;
(iii) With any national or resident of a boycotted country; or
(iv) With any other person who is known or believed to be restricted from having any business relationship with or in a boycotting country.
(2) This prohibition shall apply:
(i) Whether the information pertains to a business relationship involving a sale, purchase, or supply transaction; legal or commercial representation; shipping or other transportation transaction; insurance; investment; or any other type of business transaction or relationship; and
(ii) Whether the information is directly or indirectly requested or is furnished on the initiative of the United States person.
(3) This prohibition does not apply to the furnishing of normal business information in a commercial context. Normal business information may relate to factors such as financial fitness, technical competence, or professional experience, and may be found in documents normally available to the public
(4) Normal business information furnished in a commercial context does not cease to be such simply because the party soliciting the information may be a boycotting country or a national or resident thereof. If the information is of a type which is generally sought for a legitimate business purpose (such as determining financial fitness, technical competence, or professional experience), the information may be furnished even if the information could be used, or without the knowledge of the person supplying the information is intended to be used, for boycott purposes. However, no information about business relationships with blacklisted persons or boycotted countries, their residents or nationals, may be furnished in response to a boycott request, even if the information is publicly available. Requests for such information from a boycott office will be presumed to be boycott-based.
(5) This prohibition, like all others, applies only with respect to a United States person's activities in the interstate or foreign commerce of the United States and only when such activities are undertaken with intent to comply with, further, or support an unsanctioned foreign boycott.
The following examples are intended to give guidance in determining the circumstances in which the furnishing of information is prohibited. They are illustrative, not comprehensive.
(i) U.S. contractor A is considering bidding for a contract to build a dam in boycotting country Y. The invitation to bid, which appears in a trade journal, specifies that each bidder must state that he does not have any offices in boycotted country X. A knows or has reason to know that the requirement is boycott-based.
A may not make this statement, because it constitutes information about A's business relationships with X.
(ii) U.S. contractor A is considering bidding for a contract to construct a school in boycotting country Y. Each bidder is required to submit copies of its annual report with its bid. Since A's annual report describes A's worldwide operations, including the countries in which it does business, it necessarily discloses whether A has business relations with boycotted country X. A has no reason to know that its report is being sought for boycott purposes.
A, in furnishing its annual report, is supplying ordinary business information in a commercial context.
(iii) Same as (ii), except that accompanying the invitation to bid is a questionnaire from country Y's boycott office asking each bidder to supply a copy of its annual report.
A may not furnish the annual report despite its public availability, because it would be furnishing information in response to a questionnaire from a boycott office.
(iv) U.S. company A is on boycotting country Y's blacklist. For reasons unrelated to the boycott, A terminates its business relationships with boycotted country X. In exploring other marketing areas, A determines that boycotting country Y offers great potential. A is requested to complete a questionnaire from a central boycott office which inquires about A's business relations with X.
A may not furnish the information, because it is information about A's business relationships with a boycotted country.
(v) U.S. exporter A is seeking to sell its products to boycotting country Y. A is informed by Y that, as a condition of sale, A must certify that it has no salesmen in boycotted country X. A knows or has reason to know that the condition is boycott-based.
A may not furnish the certification, because it is information about A's business relationships in a boycotted country.
(vi) U.S. engineering company A receives an invitation to bid on the construction of a dam in boycotting country Y. As a condition of the bid, A is asked to certify that it does not have any offices in boycotted country X. A is also asked to furnish plans for other dams it has designed.
A may not certify that it has no office in X, because this is information about its business relationships in a boycotted country. A may submit plans for other dams it has designed, because this is furnishing normal business information, in a commercial context, relating to A's technical competence and professional experience.
(vii) U.S. company A, in seeking to expand its exports to boycotting country Y, sends a sales representative to Y for a one week trip. During a meeting in Y with trade association representatives, A's representative desires to explain that neither A nor any companies with which A deals has any business relationship with boycotted country X. The purpose of supplying such information is to ensure that A does not get blacklisted.
A's representative may not volunteer this information even though A, for reasons unrelated to the boycott, does not deal with X, because A's representative would be volunteering information about A's business relationships with X for boycott reasons.
(viii) U.S. company A is asked by boycotting country Y to furnish information concerning its business relationships with boycotted country X. A, knowing that Y is seeking the information for boycott purposes, refuses to furnish the information asked for directly, but proposes to respond by supplying a copy of its annual report which lists the countries with which A is presently doing business. A does not happen to be doing business with X.
A may not respond to Y's request by supplying its annual report, because A knows that it would be responding to a boycott-based request for information about its business relationships with X.
(ix) U.S. company A receives a letter from a central boycott office asking A to “clarify” A's operations in boycotted country X. A intends to continue its operations in X, but fears that not responding to the request will result in its being placed on boycotting country Y's blacklist. A knows or has reason to know that the information is sought for boycott reasons.
A may not respond to this request, because the information concerns its business relationships with a boycotted country.
(x) U.S. company A, in the course of negotiating a sale of its goods to a buyer in boycotting country Y, is asked to certify that its supplier is not on Y's blacklist.
A may not furnish the information about its supplier's blacklist status, because this is information about A's business relationships with another person who is believed to be restricted from having any business relationship with or in a boycotting country.
(xi) U.S. company A has a manufacturing plant in boycotted country X and is on boycotting country Y's blacklist. A is seeking to establish operations in Y, while expanding its operations in X. A applies to Y to be removed from Y's blacklist. A is asked, in response, to indicate whether it has manufacturing facilities in X.
A may not supply the requested information, because A would be furnishing information about its business relationships in a boycotted country.
(xii) U.S. bank A plans to open a branch office in boycotting country Y. In order to do so, A is required to furnish certain information about its business operations, including the location of its other branch offices. Such information is normally sought in other countries where A has opened a branch office, and A does not have reason to know that Y is seeking the information for boycott reasons.
A may furnish this information, even though in furnishing it A would disclose information about its business relationships in a boycotted country, because it is being furnished in a normal business context and A does not have reason to know that it is sought for boycott reasons.
(xiii) U.S. architectural firm A responds to an invitation to submit designs for an office complex in boycotting country Y. The invitation states that all bidders must include information concerning similar types of buildings they have designed. A has not designed such buildings in boycotted country X. Clients frequently seek information of this type before engaging an architect.
A may furnish this information, because this is furnishing normal business information, in a commercial context, relating to A's technical competence and professional experience.
(xiv) U.S. oil company A distributes to potential customers promotional brochures and catalogs which give background information on A's past projects. A does not have business dealings with boycotted country X. The brochures, which are identical to those which A uses throughout the world, list those countries in which A does or has done business. In soliciting potential customers in boycotting country Y, A desires to distribute copies of its brochures.
A may do so, because this is furnishing normal business information, in a commercial context, relating to professional experience.
(xv) U.S. company A is interested in doing business with boycotting country Y. A wants to ask Y's Ministry of Trade whether, and if so why, A is on Y's blacklist or is otherwise restricted for boycott reasons from doing business with Y.
A may make this limited inquiry, because it does not constitute furnishing information.
(xvi) U.S. company A is asked by boycotting country Y to certify that it is not owned by subjects or nationals of boycotted country X and that it is not resident in boycotted country X.
A may not furnish the certification, because it is information about A's business relationships with or in a boycotted country, or with nationals of a boycotted country.
(xvii) U.S. company A, a manufacturer of certain patented products, desires to register its patents in boycotting country Y. A receives a power of attorney form required to register its patents. The form contains a question regarding A's business relationships with or in boycotted country X. A has no business relationships with X and knows or has reason to know that the information is sought for boycott reasons.
A may not answer the question, because A would be furnishing information about its
(xviii) U.S. company A is asked by boycotting country Y to certify that it is not the mother company, sister company, subsidiary, or branch of any blacklisted company, and that it is not in any way affiliated with any blacklisted company.
A may not furnish the certification, because it is information about whether A has a business relationship with another person who is known or believed to be restricted from having any business relationship with or in a boycotting country.
(e)
(1) No United States person may furnish or knowingly agree to furnish information about whether any person is a member of, has made contributions to, or is otherwise associated with or involved in the activities of any charitable or fraternal organization which supports a boycotted country.
(2) This prohibition shall apply whether:
(i) The information concerns association with or involvement in any charitable or fraternal organization which (a) has, as one of its stated purposes, the support of a boycotted country through financial contributions or other means, or (b) undertakes, as a major organizational activity, to offer financial or other support to a boycotted country;
(ii) The information is directly or indirectly requested or is furnished on the initiative of the United States person; or
(iii) The information requested or volunteered concerns membership in, financial contributions to, or any other type of association with or involvement in the activities of such charitable or fraternal organization.
(3) This prohibition does not prohibit the furnishing of normal business information in a commercial context as defined in paragraph (d) of this section.
(4) This prohibition, like all others, applies only with respect to a United States person's activities in the interstate or foreign commerce of the United States and only when such activities are undertaken with intent to comply with, further, or support an unsanctioned foreign boycott.
The following examples are intended to give guidance in determining the circumstances in which the furnishing of information concerning associations with charitable or fraternal organizations is prohibited. They are illustrative, not comprehensive.
(i) U.S. engineering firm A receives an invitation to bid from boycotting country Y. The invitation includes a request to supply information concerning any association which A's officers have with charitable organization B, an organization which is known by A to contribute financial support to boycotted country X. A knows or has reason to know that the information is sought for boycott reasons.
A may not furnish the information.
(ii) U.S. construction company A, in an effort to establish business dealings with boycotting country Y, proposes to furnish information to Y showing that no members of its board of directors are in any way associated with charitable organizations which support boycotted country X. A's purpose is to avoid any possibility of its being blacklisted by Y.
A may not furnish the information, because A's purpose in doing so is boycott-based. It makes no difference that no specific request for the information has been made by Y.
(iii) A, a citizen of the United States, is applying for a teaching position in a school in boycotting country Y. In connection with his application, A furnishes a resume which happens to disclose his affiliation with charitable organizations. A does so completely without reference to Y's boycott and without knowledge of any boycott requirement of Y that pertains to A's application for employment.
The furnishing of a resume by A is not a boycott-related furnishing of information about his association with charitable organizations which support boycotted country X.
(f)
(1) No United States person may pay, honor, confirm, or otherwise implement a letter of credit which contains a condition or requirement compliance
(2) For purposes of this section, “implementing” a letter of credit includes:
(i) Issuing or opening a letter of credit at the request of a customer;
(ii) Honoring, by accepting as being a valid instrument of credit, any letter of credit;
(iii) Paying, under a letter of credit, a draft or other demand for payment by the beneficiary;
(iv) Confirming a letter of credit by agreeing to be responsible for payment to the beneficiary in response to a request by the issuer;
(v) Negotiating a letter of credit by voluntarily purchasing a draft from a beneficiary and presenting such draft for reimbursement to the issuer or the confirmer of the letter of credit; and
(vi) Taking any other action to implement a letter of credit.
(3) In the standard international letter of credit transaction facilitating payment for the export of goods from the United States, a bank in a foreign country may be requested by its customer to issue a revocable or irrevocable letter of credit in favor of the United States exporter. The customer usually requires, and the letter of credit provides, that the issuing (or a confirming) bank will make payment to the beneficiary against the bank's receipt of the documentation specified in the letter of credit. Such documentation usually includes commercial and consular invoices, a bill of lading, and evidence of insurance, but it may also include other required certifications or documentary assurances such as the origin of the goods and information relating to the carrier or insurer of the shipment.
Banks usually will not accept drafts for payment unless the documents submitted therewith comply with the terms and conditions of the letter of credit.
(4) A United States person is not prohibited under this section from advising a beneficiary of the existence of a letter of credit in his favor, or from taking ministerial actions to dispose of a letter of credit which it is prohibited from implementing.
(5) Compliance with this section shall provide an absolute defense in any action brought to compel payment of, honoring of, or other implementation of a letter of credit, or for damages resulting from failure to pay or otherwise honor or implement the letter of credit. This section shall not otherwise relieve any person from any obligations or other liabilities he may incur under other laws or regulations, except as may be explicitly provided in this section.
(6) This prohibition, like all others, applies only with respect to a United States person's activities taken with intent to comply with, further, or support an unsanctioned foreign boycott. In addition, it applies only when the transaction to which the letter of credit applies is in United States commerce and the beneficiary is a United States person.
(7) A letter of credit implemented in the United States by a United States person located in the United States, including a permanent United States establishment of a foreign bank, will be presumed to apply to a transaction in United States commerce and to be in favor of a United States beneficiary where the letter of credit specifies a United States address for the beneficiary. These presumptions may be rebutted by facts which could reasonably lead the bank to conclude that the beneficiary is not a United States person or that the underlying transaction is not in United States commerce.
(8) Where a letter of credit implemented in the United States by a United States person located in the United States does not specify a United States address for the beneficiary, the beneficiary will be presumed to be other than a United States person. This presumption may be rebutted by facts which could reasonably lead the bank to conclude that the beneficiary is a United States person despite the foreign address.
(9) A letter of credit implemented outside the United States by a United States person located outside the United States will be presumed to apply to a transaction in United States commerce and to be in favor of a United States beneficiary where the letter of credit specifies a United States address for the beneficiary and calls for documents indicating shipment from the United States or otherwise indicating that the goods are of United States origin. These presumptions may be rebutted by facts which could reasonably lead the bank to conclude that the beneficiary is not a United States person or that the underlying transaction is not in United States commerce.
(10) Where a letter of credit implemented outside the United States by a United States person located outside the United States does not specify a United States address for the beneficiary, the beneficiary will be presumed to be other than a United States person. In addition, where such a letter of credit does not call for documents indicating shipment from the United States or otherwise indicating that the goods are of United States origin, the transaction to which it applies will be presumed to be outside United States commerce. The presumption that the beneficiary is other than a United States person may be rebutted by facts which could reasonably lead the bank to conclude that the beneficiary is a United States person. The presumption that the transaction to which the letter of credit applies is outside United States commerce may be rebutted by facts which could reasonably lead the bank to conclude that the underlying transaction is in United States commerce.
The following examples are intended to give guidance in determining the circumstances in which this section applies to the implementation of a letter of credit and in which such implementation is prohibited. They are illustrative, not comprehensive.
(i) A, a U.S. bank located in the United States, opens a letter of credit in the United States in favor of B, a foreign company located outside the United States. The letter of credit specifies a non-U.S. address for the beneficiary.
The beneficiary is presumed to be other than a U.S. person, because it does not have a U.S. address. The presumption may be rebutted by facts showing that A could reasonably conclude that the beneficiary is a U.S. person despite the foreign address.
(ii) A, a branch of a foreign bank located in the United States, opens a letter of credit in favor of B, a foreign company located outside the United States. The letter of credit specifies a non-U.S. address for the beneficiary.
The beneficiary is presumed to be other than a U.S.person, because it does not have a U.S. address. The presumption may be rebutted by facts showing that A could reasonably conclude that the beneficiary is a U.S. person despite the foreign address.
(iii) A, a U.S. bank branch located outside the United States, opens a letter of credit in favor of B, a person with a U.S. address. The letter of credit calls for documents indicating shipment of goods from the United States.
The letter of credit is presumed to apply to a transaction in U.S. commerce and to be in favor of a U.S. beneficiary because the letter of credit specifies a U.S. address for the beneficiary and calls for documents indicating that the goods will be shipped from the United States. These presumptions may be rebutted by facts showing that A could reasonably conclude that the beneficiary is not a U.S. person or that the underlying transaction is not in U.S. commerce.
(iv) A, a U.S. bank branch located outside the United States, opens a letter of credit which specifies a beneficiary, B, with an address outside the United States and calls for documents indicating that the goods are of U.S.-origin. A knows or has reason to know that although B has an address outside the United States, B is a U.S. person.
The letter of credit is presumed to apply to a transaction in U.S. commerce, because the letter of credit calls for shipment of U.S.-origin goods. In addition, the letter of credit is presumed to be in favor of a beneficiary who is a U.S. person, because A knows or has reason to know that the beneficiary is a U.S. person despite the foreign address.
(v) A, a U.S. bank branch located outside the United States, opens a letter of credit which specifies a beneficiary with a U.S. address. The letter of credit calls for documents indicating shipment of foreign-origin goods.
The letter of credit is presumed to be in favor of a U.S. beneficiary but to apply to a
(i) Boycotting country Y orders goods from U.S. company B. Y opens a letter of credit with foreign bank C in favor of B. The letter of credit specifies as a condition of payment that B certify that it does not do business with boycotted country X. Foreign bank C forwards the letter of credit it has opened to U.S. bank A for confirmation.
A may not confirm or otherwise implement this letter of credit, because it contains a condition with which a U.S. person may not comply.
(ii) Same as (i), except U.S. bank A desires to advise the beneficiary, U.S. company B, of the letter of credit.
A may do so, because advising the beneficiary of the letter of credit (including the term which prevents A from implementing it) is not implementation of the letter of credit.
(iii) Same as (i), except foreign bank C sends a telegram to U.S. bank A stating the major terms and conditions of the letter of credit. The telegram does not reflect the boycott provision. Subsequently, C mails to A documents setting forth the terms and conditions of the letter of credit, including the prohibited boycott condition.
A may not further implement the letter of credit after it receives the documents, because they reflect the prohibited boycott condition in the letter of credit. A may advise the beneficiary and C of the existence of the letter of credit (including the boycott term), and may perform any essentially ministerial acts necessary to dispose of the letter of credit.
(iv) Same as (iii), except that U.S. company B, based in part on information received from U.S. bank A, desires to obtain an amendment to the letter of credit which would eliminate or nullify the language in the letter of credit which prevents A from paying or otherwise implementing it.
Either company B or bank A may undertake, and the other may cooperate and assist in, this endeavor. A could then pay or otherwise implement the revised letter of credit, so long as the original prohibited boycott condition is of no force or effect.
(v) Boycotting country Y requests a foreign bank in Y to open a letter of credit to effect payment for goods to be shipped by U.S. supplier B, the beneficiary of the letter of credit. The letter of credit contains prohibited boycott clauses. The foreign bank forwards a copy of the letter of credit to its branch office A, in the United States.
A may advise the beneficiary but may not implement the letter of credit, because it contains prohibited boycott conditions.
(vi) Boycotting country Y orders goods from U.S. company B. U.S. bank A is asked to implement, for the benefit of B, a letter of credit which contains a clause requiring documentation that the goods shipped are not of boycotted country X origin.
A may not implement the letter of credit with a prohibited condition, and may accept only a positive certificate of origin as satisfactory documentation. (See § 760.3(c) on “Import and Shipping Document Requirements.”)
(vii) [Reserved]
(viii) B is a foreign bank located outside the United States. B maintains an account with U.S. bank A, located in the United States. A letter of credit issued by B in favor of a U.S. beneficiary provides that any negotiating bank may obtain reimbursement from A by certifying that all the terms and conditions of the letter of credit have been met and then drawing against B's account. B notifies A by cable of the issuance of a letter of credit and the existence of reimbursement authorization; A does not receive a copy of the letter of credit.
A may reimburse any negotiating bank, even when the underlying letter of credit contains a prohibited boycott condition, because A does not know or have reason to know that the letter of credit contains a prohibited boycott condition.
(ix) Same as (viii), except that foreign bank B forwards a copy of the letter of credit to U.S. bank A, which then becomes aware of the prohibited boycott clause.
A may not thereafter reimburse a negotiating bank or in any way further implement the letter of credit, because it knows of the prohibited boycott condition.
(x) Boycotting country Y orders goods from U.S. exporter B and requests a foreign bank in Y to open a letter of credit in favor of B to cover the cost. The letter of credit contains a prohibited boycott clause. The foreign bank asks U.S. bank A to advise and confirm the letter of credit. Through inadvertence, A does not notice the prohibited clause and confirms the letter of credit. A thereafter notices the clause and then refuses to honor B's draft against the letter of credit. B sues bank A for payment.
A has an absolute defense against the obligation to make payment under this letter of credit. (Note: Examples (ix) and (x) do not alter any other obligations or liabilities of the parties under appropriate law.)
(xi) [Reserved]
(xii) Boycotting country Y orders goods from U.S. company B. A letter of credit which contains a prohibited boycott clause is opened in favor of B by a foreign bank in Y.
A may advise B that it has received the letter of credit (including the boycott term), but may not confirm the letter of credit with the prohibited clause.
(xiii) Same as (xii), except U.S. bank A fails to tell B that it cannot process the letter of credit. B requests payment.
A may not pay. If the prohibited language is eliminated or nullified as the result of renegotiation, A may then pay or otherwise implement the revised letter of credit.
(xiv) U.S. bank A receives a letter of credit in favor of U.S. beneficiary B. The letter of credit requires B to certify that he is not blacklisted.
A may implement such a letter of credit, but it may not insist that the certification be furnished, because by so insisting it would be refusing to do business with a blacklisted person in compliance with a boycott.
(xv) A, a U.S. bank located in the U.S. opens a letter of credit in favor of U.S. beneficiary B for B's sale of goods to boycotting country Y. The letter of credit contains no boycott conditions, but A knows that Y customarily requires the seller of goods to certify that it has dealt with no blacklisted supplier. A, therefore, instructs B that it will not make payment under the letter of credit unless B makes such a certification.
A's action in requiring the certification from B constitutes action to require another person to refuse to do business with blacklisted persons.
(xvi) A, a U.S. bank located in the U.S., opens a letter of credit in favor of U.S. beneficiary B for B's sale of goods to boycotting country Y. The letter of credit contains no boycott conditions, but A has actual knowledge that B has agreed to supply a certification to Y that it has not dealt with blacklisted firms, as a condition of receiving the letter of credit in its favor.
A may not implement the letter of credit, because it knows that an implicit condition of the credit is a condition with which B may not legally comply.
(xvii) Boycotting country Y orders goods from U.S. company B. Y opens a letter of credit with foreign bank C in favor of B. The letter of credit includes the statement, “Do not negotiate with blacklisted banks.” C forwards the letter of credit it has opened to U.S. bank A for confirmation.
A may not confirm or otherwise implement this letter of credit, because it contains a condition with which a U.S. person may not comply.
(a)
(1) A United States person, in supplying goods or services to a boycotting country, or to a national or resident of a boycotting country, may comply or agree to comply with requirements of such boycotting country which prohibit the import of:
(i) Goods or services from the boycotted country;
(ii) Goods produced or services provided by any business concern organized under the laws of the boycotted country; or
(iii) Goods produced or services provided by nationals or residents of the boycotted country.
(2) A United States person may comply or agree to comply with such import requirements whether or not he has received a specific request to comply. By its terms, this exception applies only to transactions involving imports into a boycotting country. A United States person may not, under this exception, refuse on an across-the-board basis to do business with a boycotted country or a national or resident of a boycotted country.
(3) In taking action within the scope of this exception, a United States person is limited in the types of boycott-related information he can supply. (See § 760.2(d) of this part on “Furnishing Information About Business Relationships with Boycotted Countries or Blacklisted Persons” and paragraph (c) of this section on “Import and Shipping Document Requirements.”)
The following examples are intended to give guidance in determining the circumstances in which compliance with the import requirements of a boycotting country is permissible. They are illustrative, not comprehensive.
(i) A, a U.S. manufacturer, receives an order from boycotting country Y for its products. Country X is boycotted by country Y, and the import laws of Y prohibit the importation of goods produced or manufactured in X. In filling this type of order, A would
For the purpose of filling this order, A may substitute comparable component parts in place of parts produced in X, because the import laws of Y prohibit the importation of goods manufactured in X.
(ii) Same as (i), except that A's contract with Y expressly provides that in fulfilling the contract A “may not include parts or components produced or manufactured in boycotted country X.”
A may agree to and comply with this contract provision, because Y prohibits the importation of goods from X. However, A may not furnish negative certifications regarding the origin of components in response to import and shipping document requirements.
(iii) A, a U.S. building contractor, is awarded a contract to construct a plant in boycotting country Y. A accepts bids on goods required under the contract, and the lowest bid is made by B, a business concern organized under the laws of X, a country boycotted by Y. Y prohibits the import of goods produced by companies organized under the laws of X.
For purposes of this contract, A may reject B's bid and accept another, because B's goods would be refused entry into Y because of Y's boycott against X.
(iv) Same as (iii), except that A also rejects the low bid by B for work on a construction project in country M, a country not boycotted by Y.
This exception does not apply, because A's action is not taken in order to comply with Y's requirements prohibiting the import of products from boycotted country X.
(v) A, a U.S. management consulting firm, contracts to provide services to boycotting country Y. Y requests that A not employ residents or nationals of boycotted country X to provide those services.
A may agree, as a condition of the contract, not to have services furnished by nationals or residents of X, because importation of such services is prohibited by Y.
(vi) A, a U.S. company, is negotiating a contract to supply machine tools to boycotting country Y. Y insists that the contract contain a provision whereby A agrees that none of the machine tools will be produced by any business concern owned by nationals of boycotted country X, even if the business concern is organized under the laws of a non-boycotted country.
A may not agree to this provision, because it is a restriction on the import of goods produced by business concerns owned by nationals of a boycotted country even if the business concerns themselves are organized under the laws of a non-boycotted country.
(b)
(1) A United States person, in shipping goods to a boycotting country, may comply or agree to comply with requirements of that country which prohibit the shipment of goods:
(i) On a carrier of the boycotted country; or
(ii) By a route other than that prescribed by the boycotting country or the recipient of the shipment.
(2) A specific request that a United States person comply or agree to comply with requirements concerning the use of carriers of a boycotted country is not necessary if the United States person knows, or has reason to know, that the use of such carriers for shipping goods to the boycotting country is prohibited by requirements of the boycotting country. This exception applies whether a boycotting country or the purchaser of the shipment:
(i) Explicitly states that the shipment should not pass through a port of the boycotted country; or
(ii) Affirmatively describes a route of shipment that does not include a port in the boycotted country.
(3) For purposes of this exception, the term
The following examples are intended to give guidance in determining the circumstances in which compliance with import and shipping document requirements of a boycotting country is permissible. They are illustrative, not comprehensive.
(i) A is a U.S. exporter from whom boycotting country Y is importing goods. Y directs that the goods not pass through a port of boycotted country X.
A may comply with Y's shipping instructions, because they pertain to the route of shipment of goods being shipped to Y.
(ii) A, a U.S. fertilizer manufacturer, receives an order from boycotting country Y for fertilizer. Y specifies in the order that A may not ship the fertilizer on a carrier of boycotted country X.
A may comply with this request, because it pertains to the carrier of a boycotted country.
(iii) B, a resident of boycotting country Y, orders textile goods from A, a U.S. distributor, specifying that the shipment must not be made on a carrier owned or leased by nationals of boycotted country X and that the carrier must not pass through a port of country X enroute to Y.
A may comply or agree to comply with these requests, because they pertain to the shipment of goods to Y on a carrier of a boycotted country and the route such shipment will take.
(iv) Boycotting country Y orders goods from A, a U.S. retail merchant. The order specifies that the goods shipped by A “may not be shipped on a carrier registered in or owned by boycotted country X.”
A may agree to this contract provision, because it pertains to the carrier of a boycotted country.
(v) Boycotting country Y orders goods from A, a U.S. pharmaceutical company, and requests that the shipment not pass through a port of country P, which is not a country boycotted by Y.
This exception does not apply in a non-boycotting situation. A may comply with the shipping instructions of Y, because in doing so he would not violate any prohibition of this part.
(vi) Boycotting country Y orders goods from A, a U.S. manufacturer. The order specifies that goods shipped by A “must not be shipped on vessels blacklisted by country Y”.
A may not agree to comply with this condition because it is not a restriction limited to the use of carriers of the boycotted country.
(c)
(1) A United States person, in shipping goods to a boycotting country, may comply or agree to comply with import and shipping document requirements of that country, with respect to:
(i) The country or origin of the goods;
(ii) The name and nationality of the carrier;
(iii) The route of the shipment;
(iv) The name, residence, or address of the supplier of the shipment;
(v) The name, residence, or address of the provider of other services.
(2) Such information must be stated in positive, non-blacklisting, non-exclusionary terms except for information with respect to the names or nationalities of carriers or routes of shipment, which may continue to be stated in negative terms in conjunction with shipments to a boycotting country, in order to comply with precautionary requirements protecting against war risks or confiscation.
The following examples are intended to give guidance in determining the circumstances in which compliance with the import requirements of a boycotting country is permissible. They are illustrative, not comprehensive.
(i) Boycotting country Y contracts with A, a U.S. petroleum equipment manufacturer, for certain equipment. Y requires that goods being imported into Y must be accompanied by a certification that the goods being supplied did not originate in boycotted country X.
A may not supply such a certification in negative terms but may identify instead the country of origin of the goods in positive terms only.
(ii) Same as (i), except that Y requires that the shipping documentation accompanying the goods specify the country of origin of the goods.
A may furnish the information.
(iii) [Reserved]
(iv) A, a U.S. apparel manufacturer, has contracted to sell certain of its products to B, a national of boycotting country Y. The form that must be submitted to customs officials of Y requires the shipper to certify that the goods contained in the shipment have not been supplied by “blacklisted” persons.
A may not furnish the information in negative terms but may certify, in positive terms only, the name of the supplier of the goods.
(v) Same as (iv), except the customs form requires certification that the insurer and freight forwarder used are not “blacklisted.”
A may not comply with the request but may supply a certification stating, in positive terms only, the names of the insurer and freight forwarder.
(vi) A, a U.S. petrochemical manufacturer, executes a sales contract with B, a resident of boycotting country Y. A provision of A's contract with B requires that the bill of lading and other shipping documents contain certifications that the goods have not been shipped on a “blacklisted” carrier.
A may not agree to supply a certification that the carrier is not “blacklisted” but may
(vii) Same as (vi), except that the contract requires certification that the goods will not be shipped on a carrier which flies the flag of, or is owned, chartered, leased, or operated by boycotted country X, or by nationals or residents of X.
Such a certification, which is a reasonable requirement to protect against war risks or confiscation, may be furnished at any time.
(viii) Same as (vi), except that the contract requires that the shipping documents certify the name of the carrier being used.
A may, at any time, supply or agree to supply the requested documentation regarding the name of the carrier, either in negative or positive terms.
(ix) Same as (vi), except that the contract requires a certification that the carrier will not call at a port in boycotted country X before making delivery in Y.
Such a certification, which is a reasonable requirement to protect against war risks or confiscation, may be furnished at any time.
(x) Same as (vi), except that the contract requires that the shipping documents indicate the name of the insurer and freight forwarder.
A may comply at any time, because the statement is not required to be made in negative or blacklisting terms.
(xi) A, a U.S. exporter, is negotiating a contract to sell bicycles to boycotting country Y. Y insists that A agree to certify that the goods will not be shipped on a vessel which has ever called at a port in boycotted country X.
As distinguished from a certification that goods will not be shipped on a vessel which will call enroute at a port of boycotted country X, such a certification is not a reasonable requirement to protect against war risks or confiscation, and, hence, may not be supplied.
(xii) Same as (xi), except that Y insists that A agree to certify that the goods will not be shipped on a carrier that is ineligible to enter Y's waters.
Such a certification, which is not a reasonable requirement to protect against war risks or confiscation may not be supplied.
(d)
(1) A United States person may comply or agree to comply in the normal course of business with the unilateral and specific selection by a boycotting country, a national of a boycotting country, or a resident of a boycotting country (including a United States person who is a bona fide resident of a boycotting country) of carriers, insurers, suppliers of services to be performed within the boycotting country, or specific goods, provided that with respect to services, it is necessary and customary that a not insignificant part of the services be performed within the boycotting country. With respect to goods, the items, in the normal course of business, must be identifiable as to their source or origin at the time of their entry into the boycotting country by (a) uniqueness of design or appearance or (b) trademark, trade name, or other identification normally on the items themselves, including their packaging.
(2) This exception pertains to what is permissible for a United States person who is the recipient of a unilateral and specific selection of goods or services to be furnished by a third person. It does not pertain to whether the act of making such a selection is permitted; that question is covered, with respect to United States persons, in paragraph (g) of this section on “Compliance with Local Law.” Nor does it pertain to the United States person who is the recipient of an order to supply its own goods or services. Nothing in this part prohibits or restricts a United States person from filling an order himself, even if he is selected by the buyer on a boycott basis (e.g., because he is not blacklisted), so long as he does not himself take any action prohibited by this part.
(3) In order for this exception to apply, the selection with which a United States person wishes to comply must be unilateral and specific.
(4) A “specific” selection is one which is stated in the affirmative and which specifies a particular supplier of goods or services.
(5) A “unilateral” selection is one in which the discretion in making the selection is exercised by the boycotting country buyer. If the United States person who receives a unilateral selection has provided the buyer with any boycott-based assistance (including information for purposes of helping the buyer select someone on a boycott basis), then the buyer's selection is not
(6) The provision of so-called “pre-selection” or “pre-award” services, such as providing lists of qualified suppliers, subcontractors, or bidders, does not, in and of itself, destroy the unilateral character of a selection, provided such services are not boycott-based. Lists of qualified suppliers, for example, must not exclude anyone because he is blacklisted. Moreover, such services must be of the type customarily provided in similar transactions by the firm (or industry of which the firm is a part) as measured by the practice in non-boycotting as well as boycotting countries. If such services are not customarily provided in similar transactions or such services are provided in such a way as to exclude blacklisted persons from participating in a transaction or diminish their opportunity for such participation, then the services may not be provided without destroying the unilateral character of any subsequent selection.
(7) In order for this exception to be available, the unilateral and specific selection must have been made by a boycotting country, or by a national or resident of a boycotting country. Such a resident may be a United States person. For purposes of this exception, a United States person will be considered a resident of a boycotting country only if he is a bona fide resident. A United States person may be a bona fide resident of a boycotting country even if such person's residency is temporary.
(8) Factors that will be considered in determining whether a United States person is a bona fide resident of a boycotting country include:
(i) Physical presence in the country;
(ii) Whether residence is needed for legitimate business reasons;
(iii) Continuity of the residency;
(iv) Intent to maintain the residency;
(v) Prior residence in the country;
(vi) Size and nature of presence in the country;
(vii) Whether the person is registered to do business or incorporated in the country;
(viii) Whether the person has a valid work visa; and
(ix) Whether the person has a similar presence in both boycotting and non-boycotting foreign countries in connection with similar business activities.
No one of the factors is dispositive. All the circumstances will be examined closely to ascertain whether there is, in fact, a bona fide residency. Residency established solely for purposes of avoidance of the application of this part, unrelated to legitimate business needs, does not constitute bona fide residency.
(9) The boycotting country resident must be the one actually making the selection. If a selection is made by a non-resident agent, parent, subsidiary, affiliate, home office or branch office of a boycotting country resident, it is not a selection by a resident within the meaning of this exception.
(10) A selection made solely by a bona fide resident and merely transmitted by another person to a United States person for execution is a selection by a bona fide resident within the meaning of this exception.
(11) If a United States person receives, from another person located in the United States, what may be a unilateral selection by a boycotting country customer, and knows or has reason to know that the selection is made for boycott reasons, he has a duty to inquire of the transmitting person to determine who actually made the selection. If he knows or has reason to know that the selection was made by other than a boycotting country, or a national or resident of a boycotting country, he may not comply. A course or pattern of conduct which a United States person recognizes or should recognize as consistent with boycott restrictions will create a duty to inquire.
(12) If the United States person does not know or have reason to know that the selection it receives is boycott-based, its compliance with such a selection does not offend any prohibition and this exception is not needed.
(13) This exception applies only to compliance with selections of certain
(14) For purposes of this part, services are to be performed “within the boycotting country” only if they are of a type which would customarily be performed by suppliers of those services within the country of the recipient of those services, and if the part of the services performed within the boycotting country is a necessary and not insignificant part of the total services performed.
(15) What is “customary and necessary” for these purposes depends on the usual practice of the supplier of the services (or the industry of which he is a part) as measured by the practice in non-boycotting as well as boycotting countries, except where such practices are instituted to accommodate this part.
(16) This exception applies only to compliance with selections of certain types of goods—goods that, in the normal course of business, are identifiable as to their source or origin at the time of their entry into the boycotting country. The definition of “specifically identifiable goods” is the same under this section as it is in paragraph (g) of this section on “Compliance with Local Law.”
(17) Goods “specifically identifiable” in the normal course of business are those items which at the time of their entry into a boycotting country are identifiable as to source or origin by uniqueness of design or appearance; or trademark, trade name, or other identification normally on the items themselves, including their packaging. Goods are “specifically identifiable” in the normal course of business if their source or origin is ascertainable by inspection of the items themselves, including their packaging, regardless of whether inspection takes place. Goods are not considered to be “specifically identifiable” in the normal course of business if a trademark, trade name, or other form of identification not normally present is added to the items themselves, including their packaging, to accommodate this part.
(18) If a unilateral selection meets the conditions described in paragraph (d) of this section, the United States person receiving the unilateral selection may comply or agree to comply, even if he knows or has reason to know that the selection was boycott-based. However, no United States person may comply or agree to comply with any unilateral selection if he knows or has reason to know that the purpose of the selection is to effect discrimination against any United States person on the basis of race, religion, sex, or national origin.
The following examples are intended to give guidance in determining what constitutes a unilateral selection and the circumstances in which compliance with such a selection is permissible. They are illustrative, not comprehensive.
(i) A, a U.S. manufacturer of road-grading equipment, is asked by boycotting country Y to ship goods to Y on U.S. vessel B, a carrier which is not blacklisted by Y. A knows or has reason to know that Y's selection of B is boycott-based.
A may comply with Y's request, or may agree to comply as a condition of the contract, because the selection is specific and unilateral.
(ii) A, a U.S. contractor building an industrial facility in boycotting country Y is asked by B, a resident of Y, to use C as the supplier of air conditioning equipment to be used in the facility. C is not blacklisted by country Y. A knows or has reason to know that B's request is boycott-based.
A may comply with B's request, or may agree to comply as a condition of the contract, because the selection of C is specific and unilateral.
(iii) A, a U.S. manufacturer of automotive equipment, is asked by boycotting country Y not to ship its goods to Y on U.S. carriers, B, C, or D. Carriers B, C, and D are blacklisted by boycotting country Y. A knows or has reason to know that Y's request is boycott-based.
A may not comply or agree to comply with Y's request, because no specific selection of any particular carrier has been made.
(iv) A, a U.S. exporter shipping goods ordered by boycotting country Y, is provided by Y with a list of eligible U.S. insurers from which A may choose in insuring the shipment of its goods. A knows or has reason to know that the list was compiled on a boycott basis.
A may not comply or agree to comply with Y's request that A choose from among the eligible insurers, because no specific selection of any particular insurer has been made.
(v) A, a U.S. aircraft manufacturer, is negotiating to sell aircraft to boycotting country Y. During the negotiations, Y asks A to identify the company which normally manufactures the engines for the aircraft. A responds that they are normally manufactured by U.S. engine manufacturer B. B is blacklisted by Y. In making the purchase, Y specifies that the engines for the aircraft should be supplied by U.S. engine manufacturer C.
A may comply or agree to comply with Y's selection of C, because Y's selection is unilateral and specific.
(vi) A, a U.S. construction firm, is retained by an agency of boycotting country Y to build a pipeline. Y requests A to suggest qualified engineering firms to be used on-site in the construction of the pipeline. It is customary for A, regardless of where it conducts its operations, to identify qualified engineering firms to its customers so that its customers may make their own selection of the firm to be engaged. Choice of engineering firm is customarily a prerogative of the customer. A provides a list of five engineering firms, B-F, excluding no firm because it may be blacklisted, and then confers with and gives its recommendations to Y. A recommends C, because C is the best qualified. Y then selects B, because C is blacklisted.
A may comply with Y's selection of B, because the boycott-based decision is made by Y and is unilateral and specific. Since A's pre-award services are of the kind customarily provided in these situations, and since they are provided without reference to the boycott, they do not destroy the unilateral character of Y's selection.
(vii) A, a U.S. aircraft manufacturer, has an order to supply a certain number of planes to boycotting country Y. In connection with the order, Y asks A to supply it with a list of qualified aircraft tire manufacturers so that Y can select the tires to be placed on the planes. This is a highly unusual request, since, in A's worldwide business operations, choice of tires is customarily made by the manufacturer, not the customer. Nonetheless, A supplies a list of tire manufacturers, B, C, D, and E. Y chooses tire manufacturer B because B is not blacklisted. Had A, as is customary, selected the tires, company C would have been chosen. C happens to be blacklisted, and A knows that C's blacklist status was the reason for Y's selection of B.
A's provision of a list of tire manufacturers for Y to choose from destroys the unilateral character of Y's selection, because such a pre-selection service is not customary in A's worldwide business operations.
(viii) A, a U.S. aircraft manufacturer, receives an order from U.S. company C, which is located in the United States, for the sale of aircraft to company D, a U.S. affiliate of C. D is a bona fide resident of boycotting country Y. C instructs A that “in order to avoid boycott problems,” A must use engines that are manufactured by company B, a company that is not blacklisted by Y. Engines built by B are unique in design and also bear B's trade name.
Since A has reason to know that the selection is boycott-based, he must inquire of C whether the selection was in fact made by D. If C informs A that the selection was made by D, A may comply.
(ix) Same as (viii), except that C initially states that the designation was unilaterally and specifically made by D.
A may accept C's statement without further investigation and may comply with the selection, because C merely transmitted D's unilateral and specific selection.
(x) Same as (ix), except that C informs A that it, C, has selected B on behalf of or as an agent of its affiliated company resident in the boycotting country.
A may not comply with this selection, because the decision was not made by a resident of the boycotting country.
(xi) A, a U.S. management consulting firm, is advising boycotting country Y on the selection of a contracting firm to construct a plant for the manufacture of agricultural chemicals. As is customary in its business, A compiles a list of potential contractors on the basis of its evaluation of the capabilities of the respective candidates to perform the job. A has knowledge that company B is blacklisted, but provides Y with the names of companies B, C, D, and E, listing them in order of their qualifications. Y instructs A to negotiate with C.
A may comply with Y's instruction, because Y's selection is unilateral and specific.
(xii) A, a U.S. exporter, is asked by boycotting country Y not to ship goods on carriers B, C, or D, which are owned by nationals of and are registered in country P, a country not boycotted by Y.
A may comply or agree to comply with Y's request even though the selection is not specific, because A does not know or have reason to know that the request is boycott-based.
In example (xii), A has violated no prohibition, because it does not know or have reason to know that Y's instruction is boycott-based. Therefore, A could not act
(xiii) A, a U.S. construction company, receives a contract to construct a hotel in boycotting country Y. As part of the contract, A is required to furnish Y with lists of qualified suppliers of various specifically identifiable items. A compiles lists of various qualified suppliers wholly without reference to the boycott, and thereafter Y instructs A to negotiate with, enter into contracts with, and arrange for delivery from each of the suppliers which Y designates. A knows that Y's choices are made on a boycott basis.
A may comply with Y's selections and carry out these post-award services for Y, because Y's selections were unilateral and specific and A's pre-award services were provided without reference to Y's boycott.
(i) A, a U.S. exporter, is asked by B, a U.S. person who is a bona fide resident of boycotting country Y, to ship goods on U.S. carrier C. C is not blacklisted by Y, and A knows that B has chosen on a boycott basis in order to comply with Y's boycott laws.
A may comply or agree to comply with B's request, because B is a bona fide resident of Y.
(ii) A is a U.S. computer company whose subsidiary, B, is a bona fide resident of boycotting country Y. A receives an order from B for specific, identifiable products manufactured by company C in connection with a computer which B is installing in Y.
A may comply or agree to comply with B's unilateral and specific selection, so long as the discretion was in fact exercised by B, not A.
Unilateral selection transactions involving related United States persons will be scrutinized carefully to ensure that the selection was in fact made by the bona fide resident of the boycotting country.)
(iii) A, a U.S. engineering firm, has chief engineer B as its resident engineer on a dam construction site in boycotting country Y. B's presence at the site is necessary in order to ensure proper supervision of the project. In order to comply with local law, B selects equipment supplier C rather than D, who is blacklisted, and directs A to purchase certain specific equipment from C for use in the project.
A may comply with this unilateral selection, because the decision was made by a bona fide resident of Y.
(iv) B, a branch of U.S. bank A, is located in boycotting country Y. B is in need of office supplies and asks the home office in New York to make the necessary purchases. A contacts C, a U.S. company in the office supply business, and instructs C to purchase various items from certain specific companies and ship them directly to B. In order to avoid any difficulties for B with respect to Y's boycott laws, A is careful to specify only non-blacklisted companies or suppliers. C knows that that was A's purpose. C may not comply with A's instruction, because the selection of suppliers was not made by a resident of a boycotting country.
(v) Same as (iv), except that A has given standing instructions to B that whenever it needs office supplies, it should specify certain suppliers designated by A. To avoid running afoul of Y's boycott laws, A's designations consist exclusively of non-blacklisted firms. A receives an order from B with the suppliers designated in accordance with A's instructions.
A may not comply with B's selection, because the selection was not in fact made by a bona fide resident of the boycotting country, but by a person located in the United States.
(i) A, a U.S. manufacturer, is asked by boycotting country Y to ship goods to Y on U.S. vessel B, a carrier which is not blacklisted by Y.
A may comply or agree to comply with Y's request, because compliance with the unilateral and specific selection of carriers is expressly permitted under this exception.
(ii) A, a U.S. exporter shipping goods ordered by C, a national of boycotting country Y, is asked by C to insure the shipment through U.S. insurer B.
A may comply or agree to comply with C's request, because compliance with the unilateral and specific selection of an insurer is expressly permitted under this exception.
(iii) A, a U.S. construction company, is hired by C, an agency of the government of boycotting country Y, to build a power plant in Y. C specifies that A should subcontract the foundation work to U.S. contractor B. Part of the foundation design work will be done by B in the United States.
A may comply or agree to comply with Y's designation, because a necessary and not insignificant part of B's services are to be performed within the boycotting country, and such services are customarily performed on-site.
(iv) A, a U.S. contractor, is engaged by boycotting country Y to build a power plant. Y specifies that U.S. architectural firm B should be retained by A to design the plant. In order to design the plant, it is essential that B's personnel visit and become familiar with the site, although the bulk of the design and drawing work will be done in the United States.
A may comply or agree to comply with Y's unilateral and specific selection of architectural firm B, because a necessary and not insignificant part of B's services are to be performed within Y, and such on-site work is customarily involved in the provision of architectural services. The fact that the bulk of the actual work may be performed in the United States is irrelevant since the part to be performed within Y is necessary to B's effective performance.
(v) Same as (iv), except that Y specifies that the turbine for the power plant should be designed by U.S. engineer C. It is neither customary nor necessary for C to visit the site in order to do any of his work, but C has informed A that he would probably want to visit the site in Y if he were selected for the job.
A may not comply or agree to comply with Y's request, because, in the normal course of business, it is neither customary nor necessary for engineer C's services to be performed in Y.
(vi) A, a U.S. aircraft manufacturer, receives a contract from boycotting country Y to manufacture jet engines for Y's use. Y specifies that the engines should be designed by U.S. industrial engineering firm B.
A may not comply or agree to comply with Y's request, because, in the normal course of business, the services will not be performed in Y.
(vii) U.S. company A has a contract to supply specially designed road graders to boycotting country Y. Y has instructed A that it should engage engineering firm B in the design work rather than engineering firm C, which A normally uses, because C is blacklisted. When A contacts B, B informs A that one of B's personnel customarily visits the location in which any equipment B designs is used after it is in use, in order to determine how good a design job B has done. Such visits are necessary from B's point of view to provide a check on the quality of its work, and they are necessary from Y's point of view because they make it possible for Y to discuss possible design changes should deficiencies be detected.
A may not comply with Y's selection of B, because the services which B would perform in Y are an insignificant part of the total services to be performed by B.
(i) A, a U.S. contractor, is constructing an apartment complex, on a turnkey basis, for boycotting country Y. Y instructs A to use only kitchen appliances manufactured by U.S. company B in completing the project. The appliances normally bear the manufacturer's name and trademark.
A may comply with Y's selection of B, because Y's unilateral and specific selection is of goods identifiable as to source or origin in the normal course of business at the time of their entry into Y.
(ii) Same as (i), except that Y directs A to use lumber manufactured only by U.S. company C. In the normal course of business, C neither stamps its name on the lumber nor identifies itself as the manufacturer on the packaging. In addition, normal export packaging does not identify the manufacturer.
A may not comply with Y's selection, because the goods selected are not identifiable by source or origin in the normal course of business at the time of their entry into Y.
(iii) B, a U.S. contractor who is a bona fide resident of boycotting country Y, is engaged in building roads. B retains the services of A, a U.S. engineering firm, to assist it in procuring construction equipment. B directs A to purchase road graders only from manufacturer C because other road grader manufacturers which A might use are blacklisted. C's road graders normally bear C's insignia.
A may comply with B's selection of C, because the goods selected are identifiable by source or origin in the normal course of business at the time of their entry into Y.
(iv) A, a U.S. company, manufactures computer-operated machine tools. The computers are mounted on a separate bracket on the side of the equipment and are readily identifiable by brand name imprinted on the equipment. There are five or six U.S. manufacturers of such computers which will function interchangeably to operate the machine tools manufactured by A. B, a resident of boycotting country Y, contracts to buy the machine tools manufactured by A on the condition that A incorporate, as the computer drive, a computer manufactured by U.S. company C. B's designation of C is made to avoid boycott problems which could be caused if computers manufactured by some other company were used.
A may comply with B's designation of C, because the goods selected are identifiable by source or origin in the normal course of business at the time of their entry into Y.
(v) A, a U.S. wholesaler of electronic equipment, receives an order from B, a U.S. manufacturer of radio equipment, who is a bona fide resident of boycotting country Y. B orders a variety of electrical components and specifies that all transistors must be purchased from company C, which is not blacklisted by Y. The transistors requested by B do not normally bear the name of the manufacturer; however, they are typically shipped in cartons, and C's name and logo appear on the cartons.
A may comply with B's selection, because the goods selected by B are identifiable as to source or origin in the normal course of business at the time of their entry into Y by virtue of the containers or packaging used.
(vi) A, a U.S. computer manufacturer, receives an order for a computer from B, a university in boycotting country Y. B specifies that certain integrated circuits incorporated in the computer must be supplied by U.S. electronics company C. These circuits are incorporated into the computer and are not visible without disassembling the computer.
A may not comply or agree to comply with B's specific selection of these components, because they are not identifiable as to their source or origin in the normal course of business at the time of their entry into Y.
(vii) A, a U.S. clothing manufacturer, receives an order for shirts from B, a retailer resident in boycotting country Y. B specifies that the shirts are to be manufactured from cotton produced by U.S. farming cooperative C. Such shirts will not identify C or the source of the cotton.
A may not comply or agree to comply with B's designation, because the cotton is not identifiable as to source or origin in the normal course of business at the time of entry into Y.
(viii) A, a U.S. contractor, is retained by B, a construction firm located in and wholly-owned by boycotting country Y, to assist B in procuring construction materials. B directs A to purchase a range of materials, including hardware, tools, and trucks, all of which bear the name of the manufacturer stamped on the item. In addition, B directs A to purchase steel beams manufactured by U.S. company C. The name of manufacturer C normally does not appear on the steel itself or on its export packaging.
A may comply with B's selection of the hardware, tools, and trucks, because they are identifiable as to source or origin in the normal course of business at the time of entry into Y. A may not comply with B's selection of steel beams, because the goods are not identifiable as to source or origin by trade name, trademark, uniqueness or packaging at the time of their entry into Y.
(i) A, a U.S. paper manufacturer, is asked by boycotting country Y to ship goods to Y on U.S. vessel B. Y states that the reason for its choice of B is that, unlike U.S. vessel C, B is not owned by persons of a particular faith.
A may not comply or agree to comply with Y's request, because A has reason to know that the purpose of the selection is to effect religious discrimination against a United States person.
(e)
(1) A United States person may comply or agree to comply with the export requirements of a boycotting country with respect to shipments or transshipments of exports to:
(i) A boycotted country;
(ii) Any business concern of a boycotted country;
(iii) Any business concern organized under the laws of a boycotted country; or
(iv) Any national or resident of a boycotted country.
(2) This exception permits compliance with restrictions which a boycotting country may place on direct exports to a boycotted country; on indirect exports to a boycotted country (i.e., those that pass via third parties); and on exports to residents, nationals, or business concerns of, or organized under the laws of, a boycotted country, including those located in third countries.
(3) This exception also permits compliance with restrictions which a boycotting country may place on the route of export shipments when the restrictions are reasonably related to preventing the export shipments from coming into contact with or under the jurisdiction of the boycotted country. This exception applies whether a boycotting country or the vendor of the shipment:
(i) Explicitly states that the shipment should not pass through the boycotted country enroute to its final destination; or
(ii) Affirmatively describes a route of shipment that does not include the boycotted country.
(4) A United States person may not, under this exception, refuse on an across-the-board basis to do business with a boycotted country or a national or resident of a boycotted country.
The following examples are intended to give guidance in determining the circumstances in which compliance with the export requirements of a boycotting country is permissible. They are illustrative, not comprehensive.
(i) A, a U.S. petroleum company, exports petroleum products to 20 countries, including the United States, from boycotting country Y. Country Y's export regulations require that products not be exported from Y to boycotted country X.
A may agree to and comply with Y's regulations with respect to the export of goods from Y to X.
(ii) Same as (i), except that Y's export regulations require that goods not be exported from boycotting country Y to any business concern organized under the laws of boycotted country X.
A may agree to and comply with Y's regulations with respect to the export of goods from Y to a business concern organized under the laws of X, even if such concern is located in a country not involved in Y's boycott of X.
(iii) B, the operator of a storage facility in country M, contracts with A, a U.S. carrier, for the shipment of certain goods manufactured in boycotting country Y. A's contract with B contains a provision stating that the goods to be transported may not be shipped or transshipped to boycotted country X. B informs A that this provision is a requirement of C, the manufacturer of goods who is a resident of boycotting country Y. Country M is not boycotted by Y.
A may agree to and comply with this provision, because such a provision is required by the export regulations of boycotting country Y in order to prevent shipment of Y-origin goods to a country boycotted by Y.
(iv) A, a U.S. petroleum refiner located in the United States, purchases crude oil from boycotting country Y. A has a branch operation in boycotted country X. Y requires, as a condition of sale, that A agree not to ship or transship the crude oil or products refined in Y to A's branch in X.
A may agree to and comply with these requirements, because they are export requirements of Y designed to prevent Y-origin products from being shipped to a boycotted country.
(v) A, a U.S. company, has a petrochemical plant in boycotting country Y. As a condition of securing an export license from Y, A must agree that it will not ship or permit transshipment of any of its output from the plant in Y to any companies which Y lists as being owned by nationals of boycotted country X.
A may agree to this condition, because it is a restriction designed to prevent Y-origin products from being exported to a business concern of boycotted country X or to nationals of boycotted country X.
(vi) Same as (v), except that the condition imposed on A is that Y-origin goods may not be shipped or permitted to be transshipped to any companies which Y lists as being owned by persons whose national origin is X.
A may not agree to this condition, because it is a restriction designed to prevent Y-origin goods from being exported to persons of a particular national origin rather than to residents or nationals of a particular boycotted country.
(vii) A, a U.S. petroleum company, exports petroleum products to 20 countries, including the United States, from boycotting country Y. Y requires, as a condition of sale, that A not ship the products to be exported from Y to or through boycotted country X.
A may agree to and comply with this requirement because it is an export requirement of Y designed to prevent Y-origin products from coming into contact with or under the jurisdiction of a boycotted country.
(viii) Same as (vii), except that boycotting country Y's export regulations require that products to be exported from Y not pass through a port of boycotted country X.
A may agree to and comply with Y's regulations prohibiting Y-origin exports from passing through a port at boycotted country X, because they are export requirements of Y designed to prevent Y-origin products from coming into contact with or under the jurisdiction of a boycotted country.
(ix) Same as (vii), except that Y's export regulations require that A not transship the exported products “in or at” boycotted country X.
A may agree to and comply with Y's regulations with respect to the transshipment of goods “in or at” X, because they are export requirements of Y designed to prevent Y-origin products from coming into contact with or under the jurisdiction of a boycotted country.
(f)
(1) A United States individual may comply or agree to comply with the immigration, passport, visa, or employment requirements of a boycotting country, and with requests for information from a boycotting country made to ascertain whether such individual meets requirements for employment within the boycotting country, provided that he furnishes information only about himself or a member of his family, and not about any other United States individual, including his employees, employers, or co-workers.
(2) For purposes of this section, a
(3) A United States person may not furnish information about its employees or executives, but may allow any individual to respond on his own to any request for information relating to immigration, passport, visa, or employment requirements. A United States person may also perform any ministerial acts to expedite processing of applications by individuals. These include informing employees of boycotting country visa requirements at an appropriate time; typing, translation, messenger and similar services; and assisting in or arranging for the expeditious processing of applications. All such actions must be undertaken on a non-discriminatory basis.
(4) A United States person may proceed with a project in a boycotting country even if certain of its employees or other prospective participants in a transaction are denied entry for boycott reasons. But no employees or other participants may be selected in advance in a manner designed to comply with a boycott.
The following examples are intended to give guidance in determining the circumstances in which compliance with immigration, passport, visa, or employment requirements is permissible. They are illustrative, not comprehensive.
(i) A, a U.S. individual employed by B, a U.S. manufacturer of sporting goods with a plant in boycotting country Y, wishes to obtain a work visa so that he may transfer to the plant in Y. Country Y's immigration laws specify that anyone wishing to enter the country or obtain a visa to work in the country must supply information about his religion. This information is required for boycott purposes.
A may furnish such information, because it is required by Y's immigration laws.
(ii) Same as (i), except that A is asked to supply such information about other employees of B.
A may not supply this information, because it is not information about himself or his family.
(iii) A, a U.S. building contractor, has been awarded a construction contract to be performed in boycotting country Y. Y's immigration laws require that individuals applying for visas must indicate race, religion, and place of birth. The information is sought for boycott purposes. To avoid repeated rejections of applications for work visas by A's employees, A desires to furnish to country Y a list of its prospective and current employees and required information about each so that Y can make an initial screening.
A may not furnish such a list, because A would be furnishing information about the race, religion, and national origin of its employees.
(iv) Same as (iii), except that A selects for work on the project those of its current employees whom it believes will be granted work visas from boycotting country Y.
A may not make a selection from among its employees in a manner designed to comply with the boycott-based visa requirements of Y, but must allow all eligible employees to apply for visas. A may later substitute an employee who obtains the necessary visa for one who has had his application rejected.
(v) Same as (iii), except that A selects employees for the project and then allows each employee individually to apply for his own visa. Two employees' applications are rejected, and A then substitutes two other employees who, in turn, submit their own visa applications.
A may take such action, because in so doing A is not acting in contravention of any prohibition of this part.
(vi) Same as (v), except that A arranges for the translation, typing and processing of its employees' applications, and transmits all the applications to the consulate of boycotting country Y.
A may take such ministerial actions, because in so doing A is not itself furnishing information with respect to race, religion,
(vii) A, a U.S. contractor, selects U.S. subcontractor B to perform certain engineering services in connection with A's project in boycotting country Y. The work visa application submitted by the employee whom B has proposed as chief engineer of this project is rejected by Y because his national origin is of boycotted country X. Subcontractor B thereupon withdraws.
A may continue with the project and select another subcontractor, because A is not acting in contravention of any prohibition of this part.
(g)
(2) Both parts of this exception apply only to United States persons resident in a foreign country. For purposes of this exception, a United States person will be considered to be a resident of a foreign country only if he is a bona fide resident. A United States person may be a bona fide resident of a foreign country even if such person's residency is temporary.
(3)(i) Factors that will be considered in determining whether a United States person is a bona fide resident of a foreign country include:
(A) Physical presence in the country;
(B) Whether residence is needed for legitimate business reasons;
(C) Continuity of the residency;
(D) Intent to maintain the residency;
(E) Prior residence in the country;
(F) Size and nature of presence in the country;
(G) Whether the person is registered to do business or incorporated in the country;
(H) Whether the person has a valid work visa; and
(I) Whether the person has a similar presence in both boycotting and non-boycotting foreign countries in connection with similar business activities.
(ii) No one of the factors in paragraph (g)(3) of this section is dispositive. All the circumstances involved will be closely examined to ascertain whether there is, in fact, bona fide residency. Residency established solely for purposes of avoidance of the application of this part, unrelated to legitimate business needs, does not constitute bona fide residency.
The following examples are intended to give guidance in determining the circumstances in which a United States person may be a bona fide resident of a foreign country. For purposes of illustration, each example discusses only one or two factors, instead of all relevant factors. They are illustrative, not comprehensive.
(i) A, a U.S. radio manufacturer located in the United States, receives a tender to bid on a contract to supply radios for a hotel to be built in boycotting country Y. After examining the proposal, A sends a bid from its New York office to Y.
A is not a resident of Y, because it is not physically present in Y.
(ii) Same as (i), except that after receiving the tender, A sends its sales representative to Y. A does not usually have sales representatives in countries when it bids from the United States, and this particular person's presence in Y is not necessary to enable A to make the bid.
A is not a bona fide resident of Y, because it has no legitimate business reasons for having its sales representative resident in Y.
(iii) A, a U.S. bank, wishes to establish a branch office in boycotting country Y. In pursuit of that objective, A's personnel visit Y to make the necessary arrangements. A intends to establish a permanent branch office in Y after the necessary arrangements are made.
A's personnel in Y are not bona fide residents of Y, because A does not yet have a permanent business operation in Y.
(iv) Same as (iii), except A's personnel are required by Y's laws to furnish certain non-discriminatory boycott information in order to establish a branch in Y.
In these limited circumstances, A's personnel may furnish the non-discriminatory boycott information necessary to establish residency to the same extent a U.S. person who is a bona fide resident in that country
(v) A, a U.S. construction company, receives an invitation to build a power plant in boycotting country Y. After receipt of the invitation, A's personnel visit Y in order to survey the site and make necessary analyses in preparation for submitting a bid. The invitation requires that otherwise prohibited boycott information be furnished with the bid.
A's personnel in Y are not bona fide residents of Y, because A has no permanent business operation in Y. Therefore, A's personnel may not furnish the prohibited information.
(vi) Same as (v), except that A is considering establishing an office in boycotting country Y. A's personnel visit Y in order to register A to do business in that country. A intends to establish ongoing construction operations in Y. A's personnel are required by Y's laws to furnish certain non-discriminatory boycott information in order to register A to do business or incorporate a subsidiary in Y.
In these limited circumstances, A's personnel may furnish non-discriminatory boycott information necessary to establish residency to the same extent a U.S. person who is a bona fide resident in that country could. If this information could not be furnished in such limited circumstances, the exception would be available only to firms resident in a boycotting country before January 18, 1978.
(vii) A, a subsidiary of U.S. oil company B, is located in boycotting country Y. A has been engaged in oil explorations in Y for a number of years.
A is a bona fide resident of Y, because of its pre-existing continuous presence in Y for legitimate business reasons.
(viii) Same as (vii), except that A has just been established in Y and has not yet begun operations.
A is a bona fide resident of Y, because it is present in Y for legitimate business reasons and it intends to reside continuously.
(ix) U.S. company A is a manufacturer of prefabricated homes. A builds a plant in boycotting country Y for purposes of assembling components made by A in the United States and shipped to Y.
A's personnel in Y are bona fide residents of Y, because A's plant in Y is established for legitimate business reasons, and it intends to reside continuously.
(x) U.S. company A has its principal place of business in the United States. A's sales agent visits boycotting country Y from time to time for purposes of soliciting orders.
A's sales agent is not a bona fide resident of Y, because such periodic visits to Y are insufficient to establish a bona fide residency.
(xi) A, a branch office of U.S. construction company B, is located in boycotting country Y. The branch office has been in existence for a number of years and has been performing various management services in connection with B's construction operations in Y.
A is a bona fide resident of Y, because of its longstanding presence in Y and its conduct of ongoing operations in Y.
(xii) U.S. construction company A has never done any business in boycotting country Y. It is awarded a contract to construct a hospital in Y, and preparatory to beginning construction, sends its personnel to Y to set up operations.
A's personnel are bona fide residents of Y, because they are present in Y for the purposes of carrying out A's legitimate business purposes; they intend to reside continuously; and residency is necessary to conduct their business.
(xiii) U.S. company A manufactures furniture. All its sales in foreign countries are conducted from its offices in the United States. From time to time A has considered opening sales offices abroad, but it has concluded that it is more efficient to conduct sales operations from the United States. Shortly after the effective date of this part, A sends a sales representative to boycotting country Y to open an office in and solicit orders from Y. It is more costly to conduct operations from that office than to sell directly from the United States, but A believes that if it establishes a residence in Y, it will be in a better position to avoid conflicts with U.S. law in its sales to Y.
A's sales representative is not a bona fide resident of Y, because the residency was established to avoid the application of this part and not for legitimate business reasons.
(xiv) Same as (xiii), except that it is in fact more efficient to have a sales office in Y. In fact, without a sales office in Y, A would find it difficult to explore business opportunities in Y. A is aware, however, that residency in Y would permit its sales representative to comply with Y's boycott laws.
A's sales representative is a bona fide resident of Y, because A has a legitimate business reason for establishing a sales office in Y.
(xv) U.S. company B is a computer manufacturer. B sells computers and related programming services tailored to the needs of individual clients. Because of the complex nature of the product, B must have sales representatives in any country where sales are made. B has a sales representative, A, in boycotting country Y. A spends two months of the year in Y, and the rest of the year in other countries. B has a permanent sales office from which A operates while in Y, and the sales office is stocked with brochures and other sales materials.
A is a bona fide resident of Y, because his presence in Y is necessary to carry out B's legitimate business purposes; B maintains a permanent office in Y; and B intends to continue doing business in Y in the future.
(xvi) A, a U.S. construction engineering company, is engaged by B, a U.S. general contracting company, to provide services in connection with B's contract to construct a hospital complex in boycotting country Y. In order to perform those services, A's engineers set up a temporary office in a trailer on the construction site in Y. A's work is expected to be completed within six months.
A's personnel in Y are bona fide residents of Y, because A's on-site office is necessary to the performance of its services for B, and because A's personnel are continuously there.
(xvii) A, a U.S. company, sends one of its representatives to boycotting country Y to explore new sales possibilities for its line of transistor radios. After spending several weeks in Y, A's representative rents a post office box in Y, to which all persons interested in A's products are directed to make inquiry.
A is not a bona fide resident of Y, because rental of a post office box is not a sufficient presence in Y to constitute residency.
(xviii) A, a U.S. computer company, has a patent and trademark registered in the United States. In order to obtain registration of its patent and trademark in boycotting country Y, A is required to furnish certain non-discriminatory boycott information.
A may not furnish the information, because A is not a bona fide resident of Y.
(h)
(i) Entering into contracts which provide that local law applies or governs, or that the parties will comply with such laws;
(ii) Employing residents of the host country;
(iii) Retaining local contractors to perform work within the host country;
(iv) Purchasing or selling goods or services from or to residents of the host country; and
(v) Furnishing information within the host country.
(2) Activities exclusively within the country do not include importing goods or services from outside the host country, and, therefore, this part of the exception does not apply to compliance with import laws in connection with importing goods or services.
The following examples are intended to give guidance in determining the circumstances in which compliance with local law is permissible. They are illustrative, not comprehensive.
(i) U.S. construction company A, a bona fide resident of boycotting country Y, has a contract to build a school complex in Y. Pursuant to Y's boycott laws, the contract requires A to refuse to purchase supplies from certain local merchants. While Y permits such merchants to operate within Y, their freedom of action in Y is constrained because of their relationship with boycotted country X.
A may enter into the contract, because dealings with local merchants are activities exclusively within Y.
(ii) A, a banking subsidiary of U.S. bank B, is a bona fide resident of boycotting country Y. From time to time, A purchases office supplies from the United States.
A's purchase of office supplies is not an activity exclusively within Y, because it involves the import of goods from abroad.
(iii) A, a branch of U.S. bank B, is a bona fide resident of boycotting country Y. Under Y's boycott laws, A is required to supply information about whether A has any dealings with boycotted country X. A compiles and furnishes the information within Y and does so of its own knowledge.
A may comply with that requirement, because in compiling and furnishing the information within Y, based on its own knowledge, A is engaging in an activity exclusively within Y.
(iv) Same as (iii), except that A is required to supply information about B's dealings with X. From its own knowledge and without making any inquiry of B, A compiles and furnishes the information.
A may comply with that requirement, because in compiling and furnishing the information within Y, based on its own knowledge, A is engaging in an activity exclusively within Y.
(v) Same as (iv), except that in making its responses, A asks B to compile some of the information.
A may not comply, because the gathering of the necessary information takes place partially outside Y.
(vi) U.S. company A has applied for a license to establish a permanent manufacturing facility in boycotting country Y. Under Y's boycott law, A must agree, as a condition of the license, that it will not sell any of its output to blacklisted foreign firms.
A may not comply, because the agreement would govern activities of A which are not exclusively within Y.
(i) A, a subsidiary of U.S. company B, is a bona fide resident of boycotting country Y. A manufactures air conditioners in its plant in Y. Under Y's boycott laws, A must agree not to hire nationals of boycotted country X.
A may agree to the restriction and may abide by it with respect to its recruitment of individuals within Y, because the recruitment of such individuals is an activity exclusively within Y. However, A cannot abide by this restriction with respect to its recruitment of individuals outside Y, because this is not an activity exclusively within Y.
(ii) Same as (i), except that pursuant to Y's boycott laws, A must agree not to hire anyone who is of a designated religion.
A may not agree to this restriction, because the agreement calls for discrimination against U.S. persons on the basis of religion. It makes no difference whether the recruitment of the U.S. persons occurs within or without Y.
The exception for compliance with local law does not apply to boycott-based refusals to employ U.S. persons on the basis of race, religion, sex, or national origin even if the activity is exclusively within the boycotting country.)
(i)
(i) The items are for his own use or for his use in performing contractual services within that country; and
(ii) In the normal course of business, the items are identifiable as to their source or origin at the time of their entry into the foreign country by:
(a) Uniqueness of design or appearance; or
(b) Trademark, trade name, or other identification normally on the items themselves, including their packaging.
(2) The factors that will be considered in determining whether a United States person is a bona fide resident of a foreign country are those set forth in paragraph (g) of this section. Bona fide residence of a United States company's subsidiary, affiliate, or other permanent establishment in a foreign country does not confer such residence on such United States company. Likewise, bona fide residence of a United States company's employee in a foreign country does not confer such residence on the entire company.
(3) A United States person who is a bona fide resident of a foreign country may take action under this exception through an agent outside the country, but the agent must act at the direction of the resident and not exercise his own discretion. Therefore, if a United States person resident in a boycotting country takes action to comply with a boycotting country's import law with respect to the importation of qualified goods, he may direct his agent in the United States on the action to be taken, but the United States agent himself may not exercise any discretion.
(4) For purposes of this exception, the test that governs whether goods or components of goods are specifically identifiable is identical to the test applied in paragraph (d) of this section on “Compliance With Unilateral and Specific Selection” to determine whether they are identifiable as to their source or origin in the normal course of business.
(5) The availability of this exception for the import of goods depends on whether the goods are intended for the United States person's own use at the time they are imported. It does not depend upon who has title to the goods at the time of importation into a foreign country.
(6) Goods are for the United States person's own use (including the performance of contractual services within the foreign country) if:
(i) They are to be consumed by the United States person;
(ii) They are to remain in the United States person's possession and to be used by that person;
(iii) They are to be used by the United States person in performing contractual services for another;
(iv) They are to be further manufactured, incorporated into, refined into,
(v) They are to be incorporated into, or permanently affixed as a functional part of, a project to be constructed for another.
(7) Goods acquired to fill an order for such goods from another are not for the United States person's own use. Goods procured for another are not for one's own use, even if the furnishing of procurement services is the business in which the United States person is customarily engaged. Nor are goods obtained for simple resale acquired for one's own use, even if the United States person is engaged in the retail business. Likewise, goods obtained for inclusion in a turnkey project are not for one's own use if they are not customarily incorporated into, or do not customarily become permanently affixed as a functional part of the project.
(8) This part of the local law exception does not apply to the import of services, even when the United States person importing such services is a bona fide resident of a boycotting country and is importing them for his own use. In addition, this exception is available for a United States person who is a bona fide resident of a foreign country only when the individual or entity actually present within that country takes action through the exercise of his own discretion.
(9) Use of this exception will be monitored and continually reviewed to determine whether its continued availability is consistent with the national interest. Its availability may be limited or withdrawn as appropriate. In reviewing the continued availability of this exception, the effect that the inability to comply with local import laws would have on the economic and other relations of the United States with boycotting countries will be considered.
(10) A United States person who is a bona fide resident of a foreign country may comply or agree to comply with the host country's import laws even if he knows or has reason to know that particular laws are boycott-related. However, no United States person may comply or agree to comply with any host country law which would require him to discriminate against any United States person on the basis of race, religion, sex, or national origin, or to supply information about any United States person's race, religion, sex, or national origin.
The following examples are intended to give guidance in determining the circumstances in which compliance with local import law is permissible. They are illustrative, not comprehensive.
(i) A, a subsidiary of U.S. company B, is a bona fide resident of boycotting country Y and is engaged in oil drilling operations in Y. In acquiring certain large, specifically identifiable products for carrying out its operations in Y, A chooses only from non-blacklisted firms because Y's import laws prohibit the importation of goods from blacklisted firms. However, with respect to smaller items, B makes the selection on behalf of A and sends them to A in Y.
A may choose from non-blacklisted firms, because it is a U.S. person who is a bona fide resident in Y. However, because B is not resident in Y, B cannot make boycott-based selections to conform with Y's import laws prohibiting the importation of goods from blacklisted firms.
(ii) Same as (i), except that after making its choices on the larger items, A directs B to carry out its instructions by entering into appropriate contracts and making necessary shipping arrangements.
B may carry out A's instructions provided that A, a bona fide resident of Y, has in fact made the choice and B is exercising no discretion, but is acting only as A's agent.
Such transactions between related companies will be scrutinized carefully. A must in fact exercise the discretion and make the selections. If the discretion is exercised by B, B would be in violation of this part.)
(iii) U.S. construction company A has a contract to build a school in boycotting country Y. A's employees set up operations in Y for purposes of commencing construction. A's employees in Y advise A's headquarters in the United States that Y's import laws prohibit importation of goods manufactured by blacklisted firms. A's headquarters then issues invitations to bid only to non-blacklisted firms for certain specifically identifiable goods.
A's headquarters' choice of non-blacklisted suppliers is not a choice made by a U.S. person who is a bona fide resident of Y, because the discretion in issuing the bids was exercised in the United States, not in Y.
(iv) Same as (iii), except that A's employees in Y actually make the decision regarding to whom the bids should be issued.
The choices made by A's employees are choices made by U.S. persons who are bona fide residents of Y, because the discretion in choosing was exercised solely in Y.
Choices purportedly made by employees of U.S. companies who are resident in boycotting countries will be carefully scrutinized to ensure that the discretion was exercised entirely in the boycotting country.)
The test and examples as to what constitutes specifically identifiable goods are identical to those applicable under paragraph (d) of this section on “Compliance With Unilateral Selection.”
(i) A, a subsidiary of U.S. company B, is a bona fide resident of boycotting country Y. A plans to import computer operated machine tools to be installed in its automobile plant in boycotting country Y. The computers are mounted on a separate bracket on the side of the equipment and are readily identifiable by brand name. A orders the tools from U.S. supplier C and specifies that C must incorporate computers manufactured by D, a non-blacklisted company. A would have chosen computers manufactured by E, except that E is blacklisted, and Y's import laws prohibit the importation of goods manufactured by blacklisted firms.
A may refuse to purchase E's computers, because A is importing the computers for its own use in its manufacturing operations in Y.
(ii) A, a subsidiary of U.S. company B, is a bona fide resident of boycotting country Y. To meet the needs of its employees in Y, A imports certain specifically identifiable commissary items for sale, such as cosmetics; and canteen items, such as candy. In selecting such items for importation into Y, A chooses items made only by non-blacklisted firms, because Y's import laws prohibit importation of goods from blacklisted firms.
A may import these items only from non-blacklisted firms, because the importation of goods for consumption by A's employees is an importation for A's own use.
(iii) A, a U.S. construction company which is a bona fide resident of boycotting country Y, has a contract to build a hospital complex for the Ministry of Health in Y. Under the contract, A will be general manager of the project with discretion to choose all subcontractors and suppliers. The complex is to be built on a turnkey basis, with A retaining title to the property and bearing all financial risk until the complex is conveyed to Y. In choosing specifically identifiable goods for import, such as central air conditioning units and plate glass, A excludes blacklisted suppliers in order to comply with Y's import laws. These goods are customarily incorporated into, or permanently affixed as a functional part of, the project.
A may refuse to deal with blacklisted suppliers of specifically identifiable goods, because importation of goods by a general contractor to be incorporated into a construction project in Y is an importation of goods for A's own use.
(iv) Same as (iii), except that, in addition, in choosing U.S. architects and engineers to work on the project, A excludes blacklisted firms, because Y's import laws prohibit the use of services rendered by blacklisted persons.
A may not refuse to deal with blacklisted architectural or engineering firms, because this exception does not apply to the import of services. It is irrelevant that, at some stage, the architectural or engineering drawings or plans may be brought to the site in Y. This factor is insufficient to transform such services into “goods” for purposes of this exception.
(v) Same as (iii), except that the project is to be completed on a “cost plus” basis, with Y making progress payments to A at various stages of completion.
A may refuse to deal with blacklisted suppliers of specifically identifiable goods, because the importation of goods by A to be incorporated in a project A is under contract to complete is an importation of goods for its own use. The terms of payment are irrelevant.
(vi) A, a U.S. construction company which is a bona fide resident of boycotting country Y, has a contract for the construction of an office building in Y on a turnkey basis. In choosing goods to be used or included in the office complex, A orders wallboard, office partitions, and lighting fixtures from non-blacklisted manufacturers. A likewise orders desks, office chairs, typewriters, and office supplies from non-blacklisted manufacturers.
Because they are customarily incorporated into or permanently affixed as a functional part of an office building, the wallboard, office partitions, and lighting fixtures are for A's own use, and A may select non-blacklisted suppliers of these goods in order to comply with Y's import laws. Because they are not customarily incorporated into or permanently affixed to the project, the desks, office chairs, typewriters, and office supplies are not for A's own use, and A may not make boycott-based selections of the suppliers of these goods.
(vii) A, a U.S. company engaged in the business of selling automobiles, is a bona
A's import of automobiles from B is not an import for A's own use, because the importation of items for general inventory in a retail sales operation is not an importation for one's own use.
(viii) A, a U.S. company engaged in the manufacture of pharmaceutical products, is a bona fide resident of boycotting country Y. In importing chemicals for incorporation into the pharmaceutical products, A purchases from U.S. supplier B, but not U.S. supplier C, because C is blacklisted.
A may import chemicals from B rather than C, because the importation of specifically identifiable items for incorporation into another product is an importation for one's own use.
(ix) A, a U.S. management company which is a bona fide resident of boycotting country Y, has a contract with the Ministry of Education in Y to purchase supplies for Y's school system. From time to time, A purchases goods from abroad for delivery to various schools in Y.
A's purchase of goods for Y's school system does not constitute an importation of goods for A's own use, because A is acting as a procurement agent for another. A, therefore, cannot make boycott-based selections of suppliers of such school supplies.
(x) A, a U.S. company which is a bona fide resident of boycotting country Y, has a contract to make purchases for Y in connection with a construction project in Y. A is not engaged in the construction of, or in any other activity in connection with, the project. A's role is merely to purchase goods for Y and arrange for their delivery to Y.
A is not purchasing goods for its own use, because A is acting as a procurement agent for Y. A, therefore, cannot make boycott selections of suppliers of such goods.
(xi) A, a U.S. company which is a bona fide resident of boycotting country Y, imports specifically identifiable goods into Y for exhibit by A at a trade fair in Y. In selecting goods for exhibit, A excludes items made by blacklisted firms.
A's import of goods for its exhibit at a trade fair constitutes an import for A's own use. However, A may not sell in Y those goods it imported for exhibit.
(xii) A is a bona fide resident of boycotting countries Y and Z. In compliance with Y's boycott laws, A chooses specifically identifiable goods for its oil drilling operations in Y and Z by excluding blacklisted suppliers. The goods are first imported into Y. Those purchased for A's use in Z are then transshipped to Z.
In selecting those goods for importation into Y, A is making an import selection for its own use, even though A may use some of the imported goods in Z. Further, the subsequent shipment from Y to Z of those goods purchased for use in Z is an import into Z for A's own use.
(a) No United States person may engage in any transaction or take any other action, either independently or through any other person, with intent to evade the provisions of this part. Nor may any United States person assist another United States person to violate or evade the provisions of this part.
(b) The exceptions set forth in § 760.3(a) through (i) do not permit activities or agreements (express or implied by a course of conduct, including a pattern of responses) which are otherwise prohibited by this part and which are not within the intent of such exceptions. However, activities within the coverage and intent of the exceptions set forth in this part do not constitute evasion regardless of how often such exceptions are utilized.
(c) Use of any artifice, device or scheme which is intended to place a person at a commercial disadvantage or impose on him special burdens because he is blacklisted or otherwise restricted for boycott reasons from having a business relationship with or in a boycotting country will be regarded as evasion for purposes of this part.
(d) Unless permitted under one of the exceptions, use of risk of loss provisions that expressly impose a financial risk on another because of the import laws of a boycotting country may constitute evasion. If they are introduced after January 18, 1978, their use will be presumed to constitute evasion. This presumption may be rebutted by a showing that such a provision is in customary usage without distinction between boycotting and non-boycotting countries and that there is a legitimate non-boycott reason for its use. On the other hand, use of such a provision by a United States person subsequent to January 18, 1978 is presumed not to constitute evasion if the provision had
(e) Use of dummy corporations or other devices to mask prohibited activity will also be regarded as evasion. Similarly, it is evasion under this part to divert specific boycotting country orders from a United States parent to a foreign subsidiary for purposes of complying with prohibited boycott requirements. However, alteration of a person's structure or method of doing business will not constitute evasion so long as the alteration is based on legitimate business considerations and is not undertaken solely to avoid the application of the prohibitions of this part. The facts and circumstances of an arrangement or transaction will be carefully scrutinized to see whether appearances conform to reality.
The following examples are intended to give guidance to persons in determining circumstances in which this section will apply. They are illustrative, not comprehensive.
(i) A, a U.S. insurance company, receives a request from boycotting country Y asking whether it does business in boycotted country X. Because furnishing such information is prohibited, A declines to answer and as a result is placed on Y's blacklist. The following year, A's annual report contains new information about A's worldwide operations, including a list of all countries in which A does business. A then mails a copy of its annual report, which has never before contained such information, to officials of the government of country Y.
Absent some business justification unrelated to the boycott for changing the annual report in this fashion, A's action constitutes evasion of this part.
(ii) A, a U.S. construction firm resident in boycotting country Y, orders lumber from U.S. company B. A unilaterally selects B in part because U.S. lumber producer C is blacklisted by Y and C's products are therefore not importable. In placing its order with B, A requests that B stamp its name or logo on the lumber so that A “can be certain that it is, in fact, receiving B's products.” B does not normally so stamp its lumber, and A's purpose in making the request is to appear to fit within the unilateral selection exception of this part.
Absent additional facts justifying A's action, A's action constitutes evasion of this part.
(iii) A, a U.S. company, has been selling sewing machines to boycotting country Y for a number of years. A receives a request for a negative certificate of origin from a new customer. A is aware that furnishing such certificates are prohibited; therefore, A arranges to have all future shipments run through a foreign corporation in a third country which will affix the necessary negative certificate before forwarding the machines on to Y.
A's action constitutes evasion of this part, because it is a device to mask prohibited activity carried out on A's behalf.
(iv) A, a U.S. company, has been selling calculators to distributor B in country C for a number of years and routinely supplies positive certificates of origin. A receives an order from country Y which requires negative certificates of origin. A arranges to make all future sales to distributor B in country C. A knows B will step in and make the sales to Y which A would otherwise have made directly. B will make the necessary negative certifications. A's warranty, which it will continue to honor, runs to the purchaser in Y.
A's action constitutes evasion, because the diverting of orders to B is a device to mask prohibited activity carried out on A's behalf.
(v) A, a U.S. company, is negotiating a long-term contract with boycotting country Y to meet all Y's medical supply needs. Y informs A that before such a contract can be concluded, A must complete Y's boycott questionnaire. A knows that it is prohibited from answering the questionnaire so it arranges for a local agent in Y to supply the necessary information.
A's action constitutes evasion of this part, because it is a device to mask prohibited activity carried out on A's behalf.
(vi) A, a U.S. contractor which has not previously dealt with boycotting country Y, is awarded a construction contract by Y. Because it is customary in the construction industry for a contractor to establish an on-site facility for the duration of the project, A establishes such an office, which satisfies the requirements for bona fide residency. Thereafter, A's office in Y takes a number of actions permitted under the compliance with local law exception.
A's actions do not constitute evasion, because A's facility in Y was established for legitimate business reasons.
(vii) A, a controlled foreign subsidiary of U.S. company B, is located in non-boycotting country M. A and B both make machine tools for sale in their respective marketing regions. B's marketing region includes boycotting country Y. After assessing the requirements of this part, B decides that it can no longer make machines for sale in Y. Instead, A decides to expand its facilities in M in order to service the Y market.
The actions of A and B do not constitute evasion, because there is a legitimate business reason for their actions. It is irrelevant that the effect may be to place sales which
(viii) A, a U.S. manufacturer, from time to time receives purchase orders from boycotting country Y which A fills from its plant in the United States. A knows that it is about to receive an order from Y which contains a request for a certification which A is prohibited from furnishing under this part. In order to permit the certification to be made, A diverts the purchase order to its foreign subsidiary.
A's diversion of the purchase order constitutes evasion of this part, because it is a device to mask prohibited activity carried out on A's behalf.
(ix) A, a U.S. company, is engaged in assembling drilling rigs for shipment to boycotting country Y. Because of potential difficulties in securing entry into Y of materials supplied by blacklisted firms, A insists that blacklisted firms take a 15 percent discount on all materials which they supply to A. As a result, no blacklisted firms are willing to transact with A.
A's insistence on the discount for materials supplied by blacklisted firms constitutes evasion of this part, because it is a device or scheme which is intended to place a special burden on blacklisted firms because of Y's boycott.
(x) Same as (ix), except that shortly after January 18, 1978, A, a U.S. company, insists that its suppliers sign contracts which provide that even after title passes from the supplier to A, the supplier will bear the risk of loss and indemnify A if goods which the supplier has furnished are denied entry into Y for boycott reasons.
A's action constitutes evasion of this part, because it is a device or scheme which is intended to place a special burden on blacklisted persons because of Y's boycott.
(xi) Same as (x), except that A customarily insisted on such an arrangement with its supplier prior to January 18, 1978.
A's action is presumed not to constitute evasion, because use of this contractual arrangement was customary for A prior to January 18, 1978.
(xii) A, a U.S. company, has a contract to supply automobile sub-assembly units to boycotting country Y. Shortly after January 18, 1978, A insists that its suppliers sign contracts which provide that even after title passes to A, the supplier will bear the risk of loss and indemnify A if goods which the supplier has furnished are denied entry into boycotting country Y for any reason.
A's insistence on this arrangement is presumed to constitute evasion, because it is a device which is intended to place a special burden on blacklisted firms because of Y's boycott. The presumption may be rebutted by competent evidence showing that use of such an arrangement is customary without regard to the boycotting or non-boycotting character of the country to which it relates and that there is a legitimate non-boycott business reason for its use.
(xiii) Same as (vii), except that A requires that all suppliers make in-country delivery.
A's action does not constitute evasion, because it is an ordinary commercial practice to require in-country delivery of goods.
(xiv) Same as (xii), except that A requires that title remain with the supplier until delivery in Y has been made.
A's action does not constitute evasion, because it is ordinary commercial practice to require that title remain with the supplier until delivery has been made. This example is distinguishable from example (xii), because in example (xii) A had insisted on an extraordinary arrangement designed to require that the risk of loss remain with the supplier even after title had passed to A.
(xv) U.S. bank A is contacted by U.S. company B to finance B's transaction with boycotting country Y. Payment will be effected through a letter of credit in favor of B at its U.S. address. A knows that the letter of credit will contain restrictive boycott conditions which would bar its implementation by A if the beneficiary were a U.S. person. A advises B of the boycott condition and suggests to B that the beneficiary should be changed to C, a shell corporation in non-boycotting country M. The beneficiary is changed accordingly.
The actions of both A and B constitute evasion of this part, because the arrangement is a device to mask prohibited activities.
(xvi) Same as (xv), except that U.S. company B, the beneficiary of the letter of credit, arranges to change the beneficiary to B's foreign subsidiary so that A can implement the letter of credit. A knows that this has been done.
A's implementation of the letter of credit in the face of its knowledge of B's action constitutes evasion of this part, because A's action is part of a device to mask prohibited activity by both parties.
(xvii) U.S. bank A, located in the United States, is contacted by foreign company B to finance B's transaction with boycotting country Y. B is a controlled subsidiary of a U.S. company. The transaction which is to be financed with a letter of credit payable to B at its foreign address, requires B to certify that none of its board members are of a particular religious faith. Since B cannot legally furnish the certificate, it asks A to convey the necessary information to Y through A's bank branch in Y. Such information would be furnished wholly outside the letter of credit transaction.
A's action constitutes evasion of this part, because it is undertaken to assist B's violation of this part.
(xviii) U.S. bank A is asked by foreign corporation B to implement a letter of credit in
A's suggestion to B that it provide the negative certification to Y directly constitutes evasion of this part, because A is taking an action through another person to mask prohibited activity on A's part.
(a)
(2) For purposes of this section, a request received by a United States person is reportable if he knows or has reason to know that the purpose of the request is to enforce, implement, or otherwise further, support, or secure compliance with an unsanctioned foreign boycott or restrictive trade practice.
(i) A request received by a United States person located in the United States is reportable if it is received in connection with a transaction or activity in the interstate or foreign commerce of the United States, as determined under § 760.1(d)(1) through (5) and (18) of this part.
(ii) A request received by a United States person located outside the United States (that is, a foreign subsidiary, partnership, affiliate, branch, office, or other permanent foreign establishment which is controlled in fact by any domestic concern, as determined under § 760.1(c) of this part) is reportable if it is received in connection with a transaction or activity in the interstate or foreign commerce of the United States, as determined under § 760.1(d)(6) through (17) and (19) of this part.
(iii) A request such as a boycott questionnaire, unrelated to a particular transaction or activity, received by any United States person is reportable when such person has or anticipates a business relationship with or in a boycotting country involving the sale, purchase or transfer of goods or services (including information) in the interstate or foreign commerce of the United States, as determined under § 760.1(d) of this part.
(3) These reporting requirements apply to all United States persons. They apply whether the United States person receiving the request is an exporter, bank or other financial institution, insurer, freight forwarder, manufacturer, or any other United States person subject to this part.
(4) The acquisition of information about a boycotting country's boycott requirements through the receipt or review of books, pamphlets, legal texts, exporters' guidebooks and other similar publications does not constitute receipt of a reportable request for purposes of this section. In addition, a United States person who receives an unsolicited invitation to bid, or similar proposal, containing a boycott request has not received a reportable request for purposes of this section where he does not respond to the invitation to bid or other proposal.
(5) Because of the use of certain terms for boycott and non-boycott purposes; because of Congressional mandates to provide clear and precise
(i) A request to refrain from shipping goods on a carrier which flies the flag of a particular country or which is owned, chartered, leased or operated by a particular country or by nationals or residents of a particular country, or a request to certify to that effect.
(ii) A request to ship goods via a prescribed route, or a request to refrain from shipping goods via a proscribed route, or a request to certify to either effect.
(iii) A request to supply an affirmative statement or certification regarding the country of origin of goods.
(iv) A request to supply an affirmative statement or certification regarding the name of the supplier or manufacturer of the goods shipped or the name of the provider of services.
(v) A request to comply with the laws of another country except where the request expressly requires compliance with that country's boycott laws.
(vi) A request to an individual to supply information about himself or a member of his family for immigration, passport, visa, or employment purposes.
(vii) A request to supply an affirmative statement or certification indicating the destination of exports or confirming or otherwise indicating that such cargo will be unloaded or discharged at a particular destination.
(viii) A request to supply a certificate by the owner, master, charterer, or any employee thereof, that a vessel, aircraft, truck or any other mode of transportation is eligible, otherwise eligible, permitted, or allowed to enter, or not restricted from entering, a particular port, country, or group of countries pursuant to the laws, rules, or regulations of that port, country, or group of countries.
(ix) A request to supply a certificate from an insurance company stating that the insurance company has a duly authorized agent or representative within a boycotting country and/or the name and address of such agent.
(x) A request to comply with a term or condition of a transaction that provides that the vendor bear the risk of loss and indemnify the purchaser if the vendor's goods are denied entry into a country for any reason (“risk of loss clause”) if such clause was in use by the purchaser prior to January 18, 1978.
(6) No United States person may engage in any transaction or take any other action, either independently or through any other person, with intent to evade the provisions of this part.
(7) From time to time the Department will survey domestic concerns for purposes of determining the worldwide scope of boycott requests received by their controlled foreign subsidiaries and affiliates with respect to their activities outside United States commerce. This pertains to requests which would be reportable under this section but for the fact that the activities to which the requests relate are outside United States commerce. The information requested will include the number and nature of non-reportable boycott requests received, the action(s) requested, the actions(s) taken in response and the countries in which the requests originate. The results of such surveys, including the names of those surveyed, will be made public.
(b)
(2) Each United States person actually receiving a reportable request must report that request. However, such person may designate someone else to report on his behalf. For example, a United States company, if authorized, may report on behalf of its controlled foreign subsidiary or affiliates; a freight forwarder, if authorized,
(3) Where a person is designated to report on behalf of another, the person receiving the request remains liable for any failure to report or for any representations made on his behalf. Further, anyone reporting on behalf of another is not relieved of his own responsibility for reporting any boycott request which he receives, even if it is an identical request in connection with the same transaction.
(4) Reports must be submitted in duplicate to: Report Processing Staff, Office of Antiboycott Compliance, U.S. Department of Commerce, Room 6098, Washington, D.C. 20230. Each submission must be made in accordance with the following requirements:
(i) Where the person receiving the request is a United States person located in the United States, each report of requests must be postmarked by the last day of the month following the calendar quarter in which the request was received (e.g., April 30 for the quarter consisting of January, February, and March).
(ii) Where the person receiving the request is a United States person located outside the United States, each report of requests must be postmarked by the last day of the second month following the calendar quarter in which the request was received (e.g., May 31 for the quarter consisting of January, February, and March).
(5) At the reporting person's option, reports may be submitted on either a single transaction form (Form BIS-621P, Report of Restrictive Trade Practice or Boycott Request Single Transaction (revised 10-89)) or on a multiple transaction form (Form BIS-6051P, Report of Request for Restrictive Trade Practice or Boycott Multiple Transactions (revised 10-89)). Use of the multiple transaction form permits the reporting person to provide on one form all required information relating to as many as 75 reportable requests received within any single reporting period.
(6) Reports, whether submitted on the single transaction form or on the multiple transaction form, must contain entries for every applicable item on the form, including whether the reporting person intends to take or has taken the action requested. If the reporting person has not decided what action he will take by the time the report is required to be filed, he must later report the action he decides to take within 10 business days after deciding. In addition, anyone filing a report on behalf of another must so indicate and identify that other person.
(7) Each report of a boycott request must be accompanied by two copies of the relevant page(s) of any document(s) in which the request appears. Reports may also be accompanied by any additional information relating to the request as the reporting person desires to provide concerning his response to the request.
(8) Records containing information relating to a reportable boycott request, including a copy of any document(s) in which the request appears, must be maintained by the recipient for a five-year period after receipt of the request. The Department may require that these materials be submitted to it or that it have access to them at any time within that period. (See part 762 of the EAR for additional recordkeeping requirements.)
(c)
(2) Because a copy of any document(s) accompanying the report will be made available for public inspection and copying, one copy must be submitted intact and another copy must be edited by the reporting entity to delete the same information which it certified in the report would place a United States person at a competitive disadvantage if disclosed. In addition, the reporting entity may delete from this copy information that is considered confidential and that is not required to be contained in the report (e.g., information related to foreign consignee). This copy should be conspicuously marked with the legend “Public Inspection Copy.” With respect to documents accompanying reports received by the Department on or after July 1, 1979, the public inspection copy will be made available as submitted whether or not it has been appropriately edited by the reporting entity as provided by this paragraph.
(3) Reports and accompanying documents which are available to the public for inspection and copying are located in the BIS Freedom of Information Records Inspection Facility, Room 4525, Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230. Requests to inspect such documents should be addressed to that facility.
(4) The Secretary of Commerce will periodically transmit summaries of the information contained in the reports to the Secretary of State for such action as the Secretary of State, in consultation with the Secretary of Commerce, may deem appropriate for carrying out the policies in section 8(b)(2) of the Export Administration Act of 1979.
The following examples are intended to give guidance in determining what is reportable. They are illustrative, not comprehensive.
(i) A, a U.S. manufacturer, is shipping goods to boycotting country Y and is asked by Y to certify that it is not blacklisted by Y's boycott office.
The request to A is reportable, because it is a request to A to comply with Y's boycott requirements.
(ii) A, a U.S. manufacturing company, receives an order for tractors from boycotting country Y. Y's order specifies that the tires on the tractors be made by B, another U.S. company. A believes Y has specified B as the tire supplier because otherwise A would have used tires made by C, a blacklisted company, and Y will not take shipment of tractors containing tires made by blacklisted companies.
A must report Y's request for tires made by B, because A has reason to know that B was chosen for boycott reasons.
(iii) Same as (ii), except A knows that Y's request has nothing to do with the boycott but simply reflects Y's preference for tires made by B.
Y's request is not reportable, because it is unrelated to Y's boycott.
(iv) Same as (ii), except A neither knows nor has reason to know why Y has chosen B.
Y's request is not reportable, because A neither knows nor has reason to know that Y's request is based on Y's boycott.
(v) A, a controlled foreign subsidiary of U.S. company B, is a resident of boycotting country Y. A is a general contractor. After being supplied by A with a list of competent subcontractors, A's customer instructs A to use subcontractor C on the project. A believes that C was chosen because, among other things, the other listed subcontractors are blacklisted.
The instruction to A by its customer that C be used on the project is reportable, because it is a request to comply with Y's boycott requirements.
(vi) A, a controlled foreign subsidiary of U.S. company B, is located in non-boycotting country P. A receives an order for washing machines from boycotting country Y. Y instructs A that a negative certificate of origin must accompany the shipment. The washing machines are made wholly in P, without U.S. components.
Y's instruction to A regarding the negative certificate of origin is not reportable, because the transaction to which it relates is not in U.S. commerce.
(vii) Same as (vi), except that A obtains components from the United States for the purpose of filling the order from Y. Y's instruction to A regarding the negative certificate of origin is reportable, because the transaction to which it relates is in U.S. commerce.
(viii) A, a U.S. construction company, receives in the mail an unsolicited invitation to bid on a construction project in boycotting country Y. The invitation to bid requires those who respond to certify that they do not have any plants or branch offices in boycotted country X. A does not respond.
A's receipt of the unsolicited invitation to bid is not reportable, because the request does not relate to any present or anticipated business of A with or in Y.
(ix) Same as (viii), except that A receives a boycott questionnaire from a central boycott office. A does not do business in any of the boycotting countries involved, and does not anticipate doing any business in those countries. A does not respond.
A's receipt of the boycott questionnaire is not reportable, because it does not relate to any present or anticipated business by A with or in a boycotting country.
(x) A, a U.S. manufacturer, is seeking markets in which to expand its exports. A sends a representative to boycotting country Y to explore Y's potential as a market for A's products. A's representative discusses its products but does not enter into any contracts on that trip. A does, however, hope that sales will materialize in the future. Subsequently, A receives a boycott questionnaire from Y.
A's receipt of the boycott questionnaire is reportable, because the request relates to A's anticipated business with or in a boycotting country. For purposes of determining whether a report is required, it makes no difference whether A responds to the questionnaire, and it makes no difference that actual sales contracts are not in existence or do not materialize.
(xi) Same as (x), except that A's representative enters into a contract to sell A's products to a buyer in boycotting country Y. Subsequently, A receives a boycott questionnaire from Y.
A's receipt of the boycott questionnaire is reportable, because it relates to A's present business with or in a boycotting country. For purposes of determining whether a report is required, it makes no difference whether A responds to the questionnaire.
(xii) A, a U.S. freight forwarder, purchases an exporter's guidebook which includes the import requirements of boycotting country Y. The guidebook contains descriptions of actions which U.S. exporters must take in order to make delivery of goods to Y.
A's acquisition of the guidebook is not reportable, because he has not received a request from anyone.
(xiii) A, a U.S. freight forwarder, is arranging for the shipment of goods to boycotting country Y at the request of B, a U.S. exporter. B asks A to assume responsibility to assure that the documentation accompanying the shipment is in compliance with Y's import requirements. A examines an exporters' guidebook, determines that Y's import regulations require a certification that the insurer of the goods is not blacklisted and asks U.S. insurer C for such a certification.
B's request to A is reportable by A, because it constitutes a request to comply with Y's boycott as of the time A takes action to comply with Y's boycott requirements in response to the request. A's request to C is reportable by C.
(xiv) A, a U.S. freight forwarder, is arranging for the shipment of U.S. goods to boycotting country Y. The manufacturer supplies A with all the necessary documentation to accompany the shipment. Among the documents supplied by the manufacturer is his certificate that he himself is not blacklisted. A transmits the documentation supplied by the manufacturer.
A's action in merely transmitting documents received from the manufacturer is not reportable, because A has received no request to comply with Y's boycott.
(xv) Same as (xiv), except that A is asked by U.S. exporter B to assume the responsibility to assure that the necessary documentation accompanies the shipment whatever that documentation might be. B forwards to A a letter of credit which requires that a negative certificate of origin accompany the bill of lading. A supplies a positive certificate of origin.
Both A and B must report receipt of the letter of credit, because it contains a request to both of them to comply with Y's boycott.
(xvi) Same as (xiv), except that the manufacturer fails to supply a required negative certificate of origin, and A is subsequently asked by a consular official of Y to see to it that the certificate is supplied. A supplies a positive certificate of origin.
The consular official's request to A is reportable by A, because A was asked to comply with Y's boycott requirements by supplying the negative certificate of origin.
(xvii) A, a U.S. manufacturer, is shipping goods to boycotting country Y. Arrangements have been made for freight forwarder B to handle the shipment and secure all necessary shipping certifications. B notes that the letter of credit requires that the manufacturer supply a negative certificate of origin and B asks A to do so. A supplies a positive certificate of origin.
B's request to A is reportable by A, because A is asked to comply with Y's boycott requirements by providing the negative certificate.
(xviii) A, a controlled foreign subsidiary of U.S. company B, is a resident of boycotting country Y. A is engaged in oil exploration and drilling operations in Y. In placing orders for drilling equipment to be shipped from the United States, A, in compliance with Y's laws, selects only those suppliers who are not blacklisted.
A's action in choosing non-blacklisted suppliers is not reportable, because A has not received a request to comply with Y's boycott in making these selections.
(xix) A, a controlled foreign subsidiary of U.S. company B, is seeking permission to do business in boycotting country Y. Before being granted such permission, A is asked to sign an agreement to comply with Y's boycott laws.
The request to A is reportable, because it is a request that expressly requires compliance with Y's boycott law and is received in connection with A's anticipated business in Y.
(xx) A, a U.S. bank, is asked by a firm in boycotting country Y to confirm a letter of credit in favor of B, a U.S. company. The letter of credit calls for a certificate from B that the goods to be supplied are not produced by a firm blacklisted by Y. A informs B of the letter of credit, including its certification condition, and sends B a copy.
B must report the certification request contained in the letter of credit, and A must report the request to confirm the letter of credit containing the boycott condition, because both are being asked to comply with Y's boycott.
(xxi) Same as (xx), except that the letter of credit calls for a certificate from the beneficiary that the goods will not be shipped on a vessel that will call at a port in boycotted country X before making delivery in Y.
The request is not reportable, because it is a request of a type deemed by this section to be in common use for non-boycott purposes.
(xxii) A, a U.S. company, receives a letter of credit from boycotting country Y stating that on no condition may a bank blacklisted by Y be permitted to negotiate the credit.
A's receipt of the letter of credit is reportable, because it contains a request to A to comply with Y's boycott requirements.
(xxiii) A, a U.S. bank, receives a demand draft from B, a U.S. company, in connection with B's shipment of goods to boycotting country Y. The draft contains a directive that it is valid in all countries except boycotted country X.
A's receipt of the demand draft is reportable, because it contains a request to A to comply with Y's boycott requirements.
(xxiv) A, a U.S. exporter, receives an order from boycotting country Y. On the order is a legend that A's goods, invoices, and packaging must not bear a six-pointed star or other symbol of boycotted country X.
A's receipt of the order is reportable, because it contains a request to comply with Y's boycott requirements.
(xxv) Same as (xxiv), except the order contains a statement that goods exported must not represent part of war reparations to boycotted country X.
A's receipt of the order is reportable, because it contains a request to A to comply with Y's boycott requirements.
(xxvi) A, a U.S. contractor, is negotiating with boycotting country Y to build a school in Y. During the course of the negotiations, Y suggests that one of the terms of the construction contract be that A agree not to import materials produced in boycotted country X. It is A's company policy not to agree to such a contractual clause, and A suggests that instead it agree that all of the necessary materials will be obtained from U.S. suppliers. Y agrees to A's suggestion and a contract is executed.
A has received a reportable request, but, for purposes of reporting, the request is deemed to be received when the contract is executed.
(xxvii) Same as (xxvi), except Y does not accept A's suggested alternative clause and negotiations break off.
A's receipt of Y's request is reportable. For purposes of reporting, it makes no difference that A was not successful in the negotiations. The request is deemed to be received at the time the negotiations break off.
(xxviii) A, a U.S. insurance company, is insuring the shipment of drilling equipment to boycotting country Y. The transaction is being financed by a letter of credit which requires that A certify that it is not blacklisted by Y. Freight forwarder B asks A to supply the certification in order to satisfy the requirements of the letter of credit.
The request to A is reportable by A, because it is a request to comply with Y's boycott requirements.
(xxix) A, a U.S. manufacturer, is engaged from time-to-time in supplying drilling rigs to company B in boycotting country Y. B insists that its suppliers sign contracts which provide that, even after title passes from the supplier to B, the supplier will bear the risk of loss and indemnify B if goods which the supplier has furnished are denied entry into Y for whatever reason. A knows or has reason to know that this contractual provision is required by B because of Y's boycott, and that B has been using the provision since 1977. A receives an order from B which contains such a clause.
B's request is not reportable by A, because the request is deemed to be not reportable by these regulations if the provision was in use by B prior to January 18, 1978.
(xxx) Same as (xxix), except that A does not know when B began using the provision.
Unless A receives information from B that B introduced the term prior to January 18, 1978, A must report receipt of the request.
(xxxi) A, a U.S. citizen, is a shipping clerk for B, a U.S. manufacturing company. In the course of his employment, A receives an order for goods from boycotting country Y. The order specifies that none of the components of the goods is to be furnished by blacklisted firms.
B must report the request received by its employee, A, acting in the scope of his employment. Although A is a U.S. person, such an individual does not have a separate obligation to report requests received by him in his capacity as an employee of B.
(xxxii) U.S. exporter A is negotiating a transaction with boycotting country Y. A knows that at the conclusion of the negotiations he will be asked by Y to supply certain boycott-related information and that such a request is reportable. In an effort to forestall the request and thereby avoid having to file a report, A supplies the information in advance.
A is deemed to have received a reportable request.
(xxxiii) A, a controlled foreign affiliate of U.S. company B, receives an order for computers from boycotting country Y and obtains components from the United States for the purpose of filling the order. Y instructs A that a negative certificate of origin must accompany the shipment.
Y's instruction to A regarding the negative certificate of origin is reportable by A. Moreover, A may designate B or any other person to report on its behalf. However, A remains liable for any failure to report or for any representations made on its behalf.
(xxxiv) U.S. exporter A, in shipping goods to boycotting country Y, receives a request from the customer in Y to state on the bill of lading that the vessel is allowed to enter Y's ports. The request further states that a certificate from the owner or master of the vessel to that effect is acceptable.
The request A received from his customer in Y is not reportable because it is a request of a type deemed to be not reportable by these regulations. (A may not make such a statement on the bill of lading himself, if he knows or has reason to know it is requested for a boycott purpose.)
(xxxv) U.S. exporter A, in shipping goods to boycotting country Y, receives a request from the customer in Y to furnish a certificate from the owner of the vessel that the vessel is permitted to call at Y's ports.
The request A received from his customer in Y is not reportable because it is a request of a type deemed to be not reportable by these regulations.
(xxxvi) U.S. exporter A, in shipping goods to boycotting country Y, receives a request from the customer in Y to furnish a certificate from the insurance company indicating that the company has a duly authorized representative in country Y and giving the name of that representative.
The request A received from his customer in Y is not reportable if it was received after the effective date of these rules, because it is a request of a type deemed to be not reportable by these regulations.
It has come to the Department's attention that some U.S. persons are being or may be asked to comply with new boycotting country requirements with respect to shipping and insurance certifications and certificates of origin. It has also come to the Department's attention that some U.S. persons are being or may be asked to agree to new contractual provisions in connection with certain foreign government or foreign government agency contracts. In order to maximize its guidance with respect to section 8 of the Export Administration Act of 1979, as amended (50 U.S.C. app. 2407) and part 760 of the EAR, the Department hereby sets forth its views on these certifications and contractual clauses.
§ 760.2(d) of this part prohibits a U.S. person from furnishing or knowingly agreeing to furnish:
“Information concerning his or any other person's past, present or proposed business relationships:
(i) With or in a boycotted country;
(ii) With any business concern organized under the laws of a boycotted country;
(iii) With any national or resident of a boycotted country; or
(iv) With any other person who is known or believed to be restricted from having any business relationship with or in a boycotting country.”
This prohibition, like all others under part 760, applies only with respect to a U.S. person's activities in the interstate or foreign commerce of the United States and only when such activities are undertaken with intent to comply with, further, or support an
This prohibition does not apply to the furnishing of normal business information in a commercial context. ( § 760.2(d)(3) of this part). Normal business information furnished in a commercial context does not cease to be such simply because the party soliciting the information may be a boycotting country or a national or resident thereof. If the information is of a type which is generally sought for a legitimate business purpose (such as determining financial fitness, technical competence, or professional experience), the information may be furnished even if the information could be used, or without the knowledge of the person supplying the information is intended to be used, for boycott purposes. (§ 760.2(d)(4) of this part).
The new certification requirements and the Department's interpretation of the applicability of part 760 thereto are as follows:
A.
“The undersigned, ______, does hereby declare on behalf of the above-named supplier/manufacturer, that certain parts or components of the goods described in the attached certificate of origin are the products of such country or countries, other than the country named therein as specifically indicated hereunder:
Sworn to before me, this ____ day of ______, 19 __. Notary Seal.”
It is the Department's position that furnishing a positive certificate of origin, such as the one set out above, falls within the exception contained in § 760.3(c) of this part for compliance with the import and shipping document requirements of a boycotting country. See § 760.3(c) of this part and examples (i) and (ii) thereunder.
B.
“The undersigned does hereby declare on behalf of the owner, master, or agent of the above-named vessel that said vessel is not registered in the boycotted country or owned by nationals or residents of the boycotted country and will not call at or pass through any boycotted country port enroute to its boycotting country destination.
“The undersigned further declares that said vessel is otherwise eligible to enter into the ports of the boycotting country in conformity with its laws and regulations.
Sworn to before me, this ____ day of _____, 19 __. Notary Seal.”
It is the Department's position that furnishing a certificate, such as the one set out above, stating: (1) The name of the vessel, (2) The nationality of the vessel, and (3) The owner of the vessel and further declaring that the vessel: (a) Is not registered in a boycotted country, (b) Is not owned by nationals or residents of a boycotted country, and (c) Will not call at or pass through a boycotted country port enroute to its destination in a boycotting country falls within the exception contained in § 760.3(c) for compliance with the import and shipping document requirements of a boycotting country. See § 760.3(c) and examples (vii), (viii), and (ix) thereunder.
It is also the Department's position that the owner, charterer, or master of a vessel may certify that the vessel is “eligible” or “otherwise eligible” to enter into the ports of a boycotting country in conformity with its laws and regulations. Furnishing such a statement pertaining to one's own eligibility offends no prohibition under this part 760. See § 760.2(f), example (xiv).
On the other hand, where a boycott is in force, a declaration that a vessel is “eligible” or “otherwise eligible” to enter the ports of the boycotting country necessarily conveys the information that the vessel is not blacklisted or otherwise restricted from having a business relationship with the boycotting country. See § 760.3(c) examples (vi), (xi), and (xii). Where a person other than the vessel's owner, charterer, or master furnishes such a statement, that is tantamount to his furnishing a statement that he is not doing business with a blacklisted person or is doing business only with non-blacklisted persons. Therefore, it is the Department's position that furnishing such a certification (which does not reflect customary international commercial practice) by anyone other than the owner, charterer, or master of a vessel would fall within the prohibition set forth in § 760.2(d) unless it is clear from all the facts and circumstances that the certification is not required for a boycott reason. See § 760.2(d)(3) and (4). See also part A.,
C.
“The undersigned, ________, does hereby certify on behalf of the above-named insurance company that the said company has a duly qualified and appointed agent or representative in the boycotting country whose name and address appear below:
Name of agent/representative and address in the boycotting country.
Sworn to before me this ____ day of ______, 19__. Notary Seal.”
It is the Department's position that furnishing the name of the insurance company falls within the exception contained in § 760.3(c) for compliance with the import and shipping document requirements of a boycotting country. See § 760.3(c)(1)(v) and examples (v) and (x) thereunder. In addition, it is the Department's position that furnishing a certificate, such as the one set out above, stating the address of the insurance company's principal office and its country of incorporation offends no prohibition under this part 760 unless the U.S. person furnishing the certificate knows or has reason to know that the information is sought for the purpose of determining that the insurance company is neither headquartered nor incorporated in a boycotted country. See § 760.2(d)(1)(i).
It is also the Department's position that the insurer, himself, may certify that he has a duly qualified and appointed agent or representative in the boycotting country and may furnish the name and address of his agent or representative. Furnishing such a statement pertaining to one's own status offends no prohibition under this part 760. See § 760.2(f), example (xiv).
On the other hand, where a boycott is in force, a declaration that an insurer “has a duly qualified and appointed agent or representative” in the boycotting country necessarily conveys the information that the insurer is not blacklisted or otherwise restricted from having a business relationship with the boycotting country. See § 760.3(c), example (v). Therefore, it is the Department's position that furnishing such a certification by anyone other than the insurer would fall within the prohibition set forth in § 760.2(d) unless it is clear from all the facts and circumstances that the certification is not required for a boycott reason. See § 760.2(d)(3) and (4).
The new contractual requirements and the Department's interpretation of the applicability of part 760 thereto are as follows:
A.
It is the Department's position that an agreement, such as the one set out in the first sentence above, that the import and customs requirements of a boycotting country shall apply to the performance of a contract does not, in and of itself, offend any prohibition under this part 760. See § 760.2(a)(5) and example (iii) under “Examples of Agreements To Refuse To Do Business.” It is also the Department's position that an agreement to comply generally with the import and customs requirements of a boycotting country does not, in and of itself, offend any prohibition under this part 760. See § 760.2(a)(5) and examples (iv) and (v) under “Examples of Agreements To Refuse To Do Business.” In addition, it is the Department's position that an agreement, such as the one set out in the second sentence above, to comply with the boycotting country's import and customs requirements prohibiting the importation of products or components: (1) Originating in the boycotted country; (2) Manufactured, produced, or furnished by companies organized under the laws of the boycotted country; or (3) Manufactured, produced, or furnished by nationals or residents of the boycotted country falls within the exception contained in § 760.3(a) for compliance with the import requirements of a boycotting country. See § 760.3(a) and example (ii) thereunder.
The Department notes that a United States person may not furnish a negative certification regarding the origin of goods or their components even though the certification is furnished in response to the import and shipping document requirements of the
B.
It is the Department's position that an agreement, such as the one set out above, falls within the exception contained in § 760.3(d) of this part for compliance with unilateral selections. However, the Department notes that whether a U.S. person may subsequently comply or agree to comply with any particular selection depends upon whether that selection meets all the requirements contained in § 760.3(d) of this part for compliance with unilateral selections. For example, the particular selection must be unilateral and specific, particular goods must be specifically identifiable as to their source or origin at the time of their entry into the boycotting country, and all other requirements contained in § 760.3(d) of this part must be observed.
The Department hereby sets forth its views on whether the furnishing of certain shipping and insurance certificates in compliance with boycotting country requirements violates the provisions of section 8 of the Export Administration Act of 1979, as amended (50 U.S.C. app. 2407) and part 760 of the EAR,
(i) “The owner, charterer or master of a vessel may certify that the vessel is ‘eligible’ or ‘otherwise eligible’ to enter into the ports of a boycotting country in conformity with its laws and regulations;”
(ii) “The insurer, himself, may certify that he has a duly qualified and appointed agent or representative in the boycotting country and may furnish the name and address of his agent or representative.”
Furnishing such certifications by anyone other than:
(i) The owner, charterer or master of a vessel, or
(ii) The insurer would fall within the prohibition set forth in § 760.2(d) of this part, “unless it is clear from all the facts and circumstances that these certifications are not required for a boycott reason.” See § 760.2(d) (3) and (4) of this part.
The Department has received from the Kingdom of Saudi Arabia a clarification that the shipping and insurance certifications are required by Saudi Arabia in order to:
(i) Demonstrate that there are no applicable restrictions under Saudi laws or regulations pertaining to maritime matters such as the age of the ship, the condition of the ship, and similar matters that would bar entry of the vessel into Saudi ports; and
(ii) Facilitate dealings with insurers by Saudi Arabian importers whose ability to secure expeditious payments in the event of damage to insured goods may be adversely affected by the absence of a qualified agent or representative of the insurer in Saudi Arabia. In the Department's judgment, this clarification constitutes sufficient facts and circumstances to demonstrate that the certifications are not required by Saudi Arabia for boycott reasons.
On the basis of this clarification, it is the Department's position that any United States person may furnish such shipping and insurance certificates required by Saudi Arabia without violating § 760.2(d) of this part. Moreover, under these circumstances, receipts of requests for such shipping and insurance certificates from Saudi Arabia are not reportable.
It is still the Department's position that furnishing such a certificate pertaining to one's own eligibility offends no prohibition under part 760. See § 760.2(f) of this part, example (xiv). However, absent facts and circumstances clearly indicating that the certifications are required for ordinary commercial reasons as demonstrated by the Saudi clarification, furnishing certifications about the eligibility or blacklist status of any other person would fall within the prohibition set forth in § 760.2(d) of this part, and receipts of requests for such certifications are reportable.
It also remains the Department's position that where a United States person asks an insurer or carrier of the exporter's goods to self-certify, such request offends no prohibition under this part. However, where a United States person asks anyone other than an insurer or carrier of the exporter's goods to self-certify, such requests will be considered by the Department as evidence of the requesting person's refusal to do business with those persons who cannot or will not
The Department wishes to emphasize that notwithstanding the fact that self-certifications are permissible, it will closely scrutinize the activities of all United States persons who provide such self-certifications, including insurers and carriers, to determine that such persons have not taken any prohibited actions or entered into any prohibited agreements in order to be able to furnish such certifications.
Pursuant to Article 2, Annex II of the Peace Treaty between Egypt and Israel, Egypt's participation in the Arab economic boycott of Israel was formally terminated on January 25, 1980. On the basis of this action, it is the Department's position that certain requests for information, action or agreement which were considered boycott-related by implication now cannot be presumed boycott-related and thus would not be prohibited or reportable under the Regulations. For example, a request that an exporter certify that the vessel on which it is shipping its goods is eligible to enter Arab Republic of Egypt ports has been considered a boycott-related request that the exporter could not comply with because Egypt has a boycott in force against Israel (see 43 FR 16969, April 21, 1978 or the 15 CFR edition revised as of January 1, 1979). Such a request after January 25, 1980 would not be presumed boycott-related because the underlying boycott requirement/basis for the certification has been eliminated. Similarly, a U.S. company would not be prohibited from complying with a request received from Egyptian government officials to furnish the place of birth of employees the company is seeking to take to Egypt, because there is no underlying boycott law or policy that would give rise to a presumption that the request was boycott-related.
U.S. persons are reminded that requests that are on their face boycott-related or that are for action obviously in furtherance or support of an unsanctioned foreign boycott are subject to the Regulations, irrespective of the country or origin. For example, requests containing references to “blacklisted companies”, “Israel boycott list”, “non-Israeli goods” or other phrases or words indicating boycott purpose would be subject to the appropriate provisions of the Department's antiboycott regulations.
The question has arisen how the definition of U.S. commerce in the antiboycott regulations (15 CFR part 760) applies to a shipment of foreign-made goods when U.S.-origin spare parts are included in the shipment. Specifically, if the shipment of foreign goods falls outside the definition of U.S. commerce, will the inclusion of U.S.-origin spare parts bring the entire transaction into U.S. commerce?
Section 760.1(d)(12) provides the general guidelines for determining when U.S.-origin goods shipped from a controlled in fact foreign subsidiary are outside U.S. commerce. The two key tests of that provision are that the goods were “(i) * * * acquired without reference to a specific order from or transaction with a person outside the United States; and (ii) * * * further manufactured, incorporated into, refined into, or reprocessed into another product.” Because the application of these two tests to spare parts does not conclusively answer the U.S. commerce question, the Department is presenting this clarification.
In the cases brought to the Department's attention, an order for foreign-origin goods was placed with a controlled in fact foreign subsidiary of a United States company. The foreign goods contained components manufactured in the United States and in other countries, and the order included a request for extras of the U.S. manufactured components (spare parts) to allow the customer to repair the item. Both the foreign manufactured product and the U.S. spare parts were to be shipped from the general inventory of the foreign subsidiary. Since the spare parts, if shipped by themselves, would be in U.S. commerce as that term is defined in the Regulations, the question was whether including them with the foreign manufactured item would bring the entire shipment into U.S. commerce. The Department has decided that it will not and presents the following specific guidance.
As used above, the term “spare parts” refers to parts of the quantities and types normally and customarily ordered with a product and kept on hand in the event they are needed to assure prompt repair of the product. Parts, components or accessories that improve or change the basic operations or design characteristics, for example, as to accuracy, capability or productivity, are not spare parts under this definition.
Inclusion of U.S.-origin spare parts in a shipment of products which is otherwise outside U.S. commerce will not bring the transaction into U.S. commerce if the following conditions are met:
(I) The parts included in the shipment are acquired from the United States by the controlled in fact foreign subsidiary without reference to a specific order from or transaction with a person outside the United States;
(II) The parts are identical to the corresponding United States-origin parts which have been manufactured, incorporated into or reprocessed into the completed product;
(III) The parts are of the quantity and type normally and customarily ordered with the completed product and kept on hand by the firm or industry of which the firm is a part to assure prompt repair of the product; and
(IV) The parts are covered by the same order as the completed product and are shipped with or at the same time as the original product.
The Department emphasizes that unless each of the above conditions is met, the inclusion of United States-origin spare parts in an order for a foreign-manufactured or assembled product will bring the entire transaction into the interstate or foreign commerce of the United States for purposes of part 760.
The information outlined below may be furnished in response to boycott-related requests from boycotting countries or others. This information is, in the view of the Department, not prohibited by the Regulations. Thus, a person does not have to qualify under any of the exceptions to be able to make the following statements. Such statements can be made, however, only by the person indicated and under the circumstances described. These statements should not be used as a point of departure or analogy for determining the permissibility of other types of statements. The Department's view that these statements are not contrary to the prohibitions contained in antiboycott provisions of the Regulations is limited to the specific statement in the specific context indicated.
1. A U.S. person may always provide its own name, address, place of incorporation (“nationality”), and nature of business.
2. A U.S. person may state that it is not on a blacklist, or restricted from doing business in a boycotting country. A company may not make that statement about its subsidiaries or affiliates—only about itself. A U.S. person may not say that there is no reason for it to be blacklisted. To make that statement would provide directly or by implication information that may not be provided. A U.S. person may inquire about the reasons it is blacklisted if it learns that it is on a blacklist (see § 760.2(d) of this part example (xv)).
3. A U.S. person may describe in detail its past dealings with boycotting countries; may state in which boycotting countries its trademarks are registered; and may specify in which boycotting countries it is registered or qualified to do business. In general, a U.S. person is free to furnish any information it wishes about the nature and extent of its commercial dealings with boycotting countries.
4. A U.S. person may state that many U.S. firms or individuals have similar names and that it believes that it may be confused with a similarly named entity. A U.S. person may not state that it does or does not have an affiliation or relationship with such similarly named entity.
5. A U.S. person may state that the information requested is a matter of public record in the United States. However, the person may not direct the inquirer to the location of that information, nor may the U.S. person provide or cause to be provided such information.
Section 760.3(g), the Compliance With Local Law exception, permits U.S. persons, who are bona fide residents of a boycotting country, to take certain limited, but otherwise prohibited, actions, if they are required to do so in order to comply with local law.
Among these actions is the furnishing of non-discriminatory information. Examples (iv) through (vi) under “Examples of Bona Fide Residency” indicate that a company seeking to become a bona fide resident within a boycotting country may take advantage of the exception for the limited purpose of furnishing information required by local law to obtain resident status. Exactly when and how this exception is available has been the subject of a number of inquiries. It is the Department's view that the following conditions must be met for a non-resident company to be permitted to furnish otherwise prohibited information for the limited purpose of seeking to become a bona fide resident:
1. The company must have a legitimate business reason for seeking to establish a branch or other resident operation in the boycotting country. (Removal from the blacklist does not constitute such a reason.)
2. The local operation it seeks to establish must be similar or comparable in nature and operation to ones the company operates in other parts of the world, unless local law or custom dictates a significantly different form.
3. The person who visits the boycotting country to furnish the information must be the official whose responsibility ordinarily
4. The information provided must be that which is ordinarily known to the person establishing the foreign branch. Obviously, at the time of establishment, the foreign branch will have no information of its own knowledge. Rather, the information should be that which the responsible person has of his own knowledge, or that he would have with him as incidental and necessary to the registration and establishment process. As a general rule, such information would not include such things as copies of agreements with boycotted country concerns or detailed information about the person's dealings with blacklisted concerns.
5. It is not necessary that documents prepared in compliance with this exception be drafted or executed within the boycotting country. The restrictions on the type of information which may be provided and on who may provide it apply regardless of where the papers are prepared or signed.
The antiboycott regulations prohibit knowing agreements to comply with certain prohibited requests and requirements of boycotting countries, regardless of how these terms are stated. Similarly, the reporting rules require that a boycott related “solicitation, directive, legend or instruction that asks for information or that asks that a United States person take or refrain from taking a particular action” be reported. Questions have frequently arisen about how particular requirements in the form of directive or instructions are viewed under the antiboycott regulations, and we believe that it will add clarity to the regulations to provide a written interpretation of how three of these terms are treated under the law. The terms in question appear frequently in letters of credit, but may also be found on purchase orders or other shipping or sale documents. They have been brought to the attention of the Department by numerous persons. The terms are, or are similar to, the following: (1) Goods of boycotted country origin are prohibited; (2) No six-pointed stars may be used on the goods, packing or cases; (3) Neither goods nor packing shall bear any symbols prohibited in the boycotting country.
(a)
(b)
(c)
When a boycotting country rejects for boycott-related reasons a shipment of goods sold by a United States person, the United States person selling the goods may return them to its inventory or may re-ship them to other markets (the United States person may not return them to the original supplier and demand restitution). The U.S. person may then make a non-boycott based selection of another supplier and provide the goods necessary to meet its obligations to the boycotting customer in that particular transaction without violating § 760.2(a) of this part. If the United States person receives another order from the same boycotting country for similar goods, the Department has determined that a boycott-based refusal by a United States person to ship goods from the supplier whose goods were previously rejected would constitute a prohibited refusal to do business under § 760.2(a) of this part. The Department will presume that filling such an order with alternative goods is evidence of the person's refusal to deal with the original supplier.
The Department recognizes the limitations this places on future transactions with a boycotting country once a shipment of goods has been rejected. Because of this, the Department wishes to point out that, when faced with a boycotting country's refusal to permit entry of the particular goods, a United States person may state its obligation to abide by the requirements of United States law and indicate its readiness to comply with the unilateral and specific selection of goods by the boycotting country in accordance with § 760.3(d). That section provides, in pertinent part, as follows:
“A United States person may comply or agree to comply in the normal course of business with the unilateral and specific selection by a boycotting country * * * of * * * specific goods, * * * provided that * * * with respect to goods, the items, in the normal course of business, are identifiable as to their source or origin at the time of their entry into the boycotting country by (a) uniqueness of design or appearance or (b) trademark, trade name, or other identification normally on the items themselves, including their packaging.”
The Department wishes to emphasize that the unilateral selection exception in § 760.3(d) of this part will be construed narrowly, and that all its requirements and conditions must be met, including the following:
The Department cautions United States persons confronted with the problem or concern over the boycott-based rejection of goods shipped to a boycotting country that the adoption of devices such as “risk of loss” clauses, or conditions that make the supplier financially liable if his or her goods are rejected by the boycotting country for boycott reasons are presumed by the Department to be evasion of the statute and regulations, and as such are prohibited by § 760.4 of this part, unless adopted prior to January 18, 1978. See § 760.4(d) of this part.
When United States persons (as defined by the antiboycott regulations) located within the United States purchase or sell goods or services located outside the United States, they have engaged in an activity within the foreign commerce of the United States. Although the goods or services may never physically come within the geographic boundaries of the several states or territories of the United States, legal ownership or title is transferred from a foreign nation to the United States person who is located in the United States. In the case of a purchase, subsequent resale would also be within United States commerce.
It is the Department's view that the terms “sale” and “purchase” as used in the regulations are not limited to those circumstances where the goods or services are physically transferred to the person who acquires title. The EAR define the activities that serve as the transactional basis for U.S. commerce as those involving the “sale, purchase, or transfer” of goods or services. In the Department's view, as used in the antiboycott regulations, “transfer” contemplates physical movement of the goods or services between the several states or territories and a foreign country, while “sale” and “purchase” relate to the movement of ownership or title.
This interpretation applies only to those circumstances in which the person located within the United States buys or sells goods or services for its own account. Where the United States person is engaged in the brokerage of foreign goods, i.e., bringing foreign buyers and sellers together and assisting in the transfer of the goods, the sale or purchase itself would not ordinarily be considered to be within U.S. commerce. The brokerage service, however, would be a service provided from the United States to the parties and thus an activity within U.S. commerce and subject to the antiboycott laws. See § 760.1(d)(3).
The Department cautions that United States persons who alter their normal pattern of dealing to eliminate the passage of ownership of the goods or services to or from the several states or territories of the United States in order to avoid the application of the antiboycott regulations would be in violation of § 760.4 of this part.
§ 760.3(h) of this part provides that a United States person who is a bona fide resident of a boycotting country may comply with the laws of that country with respect to his or her activities exclusively within the boycotting country. Among the types of conduct permitted by this exception is “furnishing information within the host country” § 760.3(h)(1)(v) of this part. For purposes of the discussion which follows, the Department is assuming that the person in question is a bona fide resident of the boycotting country as defined in § 760.3(g), and that the information to be provided is required by the laws or regulations of the boycotting country, as also defined in § 760.3(g) of this part. The only issue this interpretation addresses is under what circumstances the provision of information is “an activity exclusively within the boycotting country.”
The activity of “furnishing information” consists of two parts, the acquisition of the information and its subsequent transmittal. Under the terms of this exception, the information may not be acquired outside the country for the purpose of responding to the requirement for information imposed by the boycotting country. Thus, if an American company which is a bona fide resident of a boycotting country is required to provide information about its dealings with other U.S. firms, the company may not ask its parent corporation in the United States for that information, or make any other inquiry outside the boundaries of the boycotting country. The information must be provided to the boycotting country authorities based on information or knowledge available to the company and its personnel located within the boycotting country at the time the inquiry is received. See § 760.3, (h) of this part, examples (iii), (iv), and (v). Much of the information in the company's possession (transaction and corporate records) may have actually originated outside the boycotting country, and much of the information known to the employees may have been acquired outside the boycotting country. This will not cause the information to fall outside the coverage of this exception, if the information was sent to the boycotting country or acquired by the individuals in normal commercial context prior to and unrelated to a boycott inquiry or purpose. It should be noted that if prohibited information (about business relations with a boycotted country, for example) has been forwarded to the affiliate in the boycotting country in anticipation of a possible boycott inquiry from the boycotting country government, the Department will not regard this as information within the knowledge of the bona fide resident under the terms of the exception. However, if the bona fide resident possesses the information prior to receipt of a boycott-related inquiry and obtained it in a normal commercial context, the information can be provided pursuant to this exception notwithstanding the fact that, at some point, the information came into the boycotting country from the outside.
The second part of the analysis of “furnishing information” deals with the limitation on the transmittal of the information. It can only be provided within the boundaries of the boycotting country. The bona fide resident may only provide the information to the party that the boycotting country law requires (directly or through an agent or representative within the country) so long as that party is located within the boycotting country. This application of the exception is somewhat easier, since it is relatively simple to determine if the information is to be given to somebody within the country.
Note that in discussing what constitutes furnishing information “exclusively within” the boycotting country, the Department does not address the nature of the transaction or activity that the information relates to. It is the Department's position that the nature of the transaction, including the inception or completion of the transaction, is not material in analyzing the availability of this exception.
For example, if a shipment of goods imported into a boycotting country is held up at the time of entry, and information from the bona fide resident within that country is legally required to free those goods, the fact
Factual variations may raise questions about the application of this exception and the effect of this interpretation. In an effort to anticipate some of these, the Department has set forth below a number of questions and answers. They are incorporated as a part of this interpretation.
1. Q. Under this exception, can a company which is a U.S. person and a bona fide resident of the boycotting country provide information to the local boycott office?
A. Yes, if local law requires the company to provide this information to the boycott office and all the other requirements are met.
2. Q. If the company knows that the local boycott office will forward the information to the Central Boycott Office, may it still provide the information to the local boycott office?
A. Yes, if it is required by local law to furnish the information to the local boycott office and all the other requirements are met. The company has no control over what happens to the information after it is provided to the proper authorities. (There is obvious potential for evasion here, and the Department will examine such occurrences closely.)
3. Q. Can a U.S. person who is a bona fide resident of Syria furnish information to the Central Boycott Office in Damascus?
A. No, unless the law in Syria specifically requires information to be provided to the Central Boycott Office the exception will not apply. Syria has a local boycott office responsible for enforcing the boycott in that country.
4. Q. If a company which is a U.S. person and a bona fide resident of the boycotting country has an import shipment held up in customs of the boycotting country, and is required to provide information about the shipment to get it out of customs, may the company do so?
A. Yes, assuming all other requirements are met. The act of furnishing the information is the activity taking place exclusively within the boycotting country. The fact that the information is provided corollary to a transaction that originates or terminates outside the boycotting country is not material.
5. Q. If the U.S. person and bona fide resident of the boycotting country is shipping goods out of the boycotting country, and is required to certify to customs officials of the country at the time of export that the goods are not of Israeli origin, may he do so even though the certification relates to an export transaction?
A. Yes, assuming all other requirements are met. See number 4 above.
(a) The words “Persian Gulf” cannot appear on the document.
This term is common in letters of credit from Kuwait and may be found in letters of credit from Bahrain. Although more commonly appearing in letters of credit, the term may also appear in other trade documents.
It is the Department's view that this term reflects a historical dispute between the Arabs and the Iranians over geographic place names which in no way relates to existing economic boycotts. Thus, the term is neither prohibited nor reportable under the Regulations.
(b) Certify that goods are of U.S.A. origin and
This term appears periodically on documents from a number of Arab countries. It is the Department's position that the statement is a positive certification of origin and, as such, falls within the exception contained in § 760.3(c) of this part for compliance with the import and shipping document requirements of a boycotting country. Even though a negative phrase is contained within the positive clause, the phrase is a non-exclusionary, non-blacklisting statement. In the Department's view, the additional phrase does not affect the permissible status of the positive certificate, nor does it make the request reportable § 760.5(a)(5)(iii) of this part.
(c) Legalization of documents by any Arab consulate except Egyptian Consulate permitted.
This term appears from time to time in letters of credit but also may appear in various other trade documents requiring legalization and thus is not prohibited, and a request to comply with the statement is not reportable. Because a number of Arab states do not have formal diplomatic relations with Egypt, they do not recognize Egyptian embassy actions. The absence of diplomatic relations is the reason for the requirement. In the Department's view this does not constitute an unsanctioned foreign boycott or embargo against Egypt under the terms of the Export Administration Act. Thus the term is not prohibited, and a request to comply with the statement is not reportable.
§ 760.5(a)(4) of this part states in part:
“In addition, a United States person who receives an unsolicited invitation to bid, or similar proposal, containing a boycott request has not received a reportable request for purposes of this section where he does not respond to the invitation to bid or other proposal.”
The Regulations do not define “unsolicited” in this context. Based on review of numerous situations, the Department has developed certain criteria that it applies in determining if an invitation to bid or other proposal received by a U.S. person is in fact unsolicited.
The invitation is not unsolicited if, during a commercially reasonable period of time preceding the issuance of the invitation, a representative of the U.S. person contacted the company or agency involved for the purpose of promoting business on behalf of the company.
The invitation is not unsolicited if the U.S. person has advertised the product or line of products that are the subject of the invitation in periodicals or publications that ordinarily circulate to the country issuing the invitation during a commercially reasonable period of time preceding the issuance of the invitation.
The invitation is not unsolicited if the U.S. person has sold the same or similar products to the company or agency issuing the invitation within a commercially reasonable period of time before the issuance of the current invitation.
The invitation is not unsolicited if the U.S. person has participated in a trade mission to or trade fair in the country issuing the invitation within a commercially reasonable period of time before the issuance of the invitation.
Under § 760.5(a)(4) of this part, the invitation is regarded as not reportable if the U.S. person receiving it does not respond. The Department has determined that a simple acknowledgment of the invitation does not constitute a response for purposes of this rule. However, an acknowledgment that requests inclusion for future invitations will be considered a response, and a report is required.
Where the person in receipt of an invitation containing a boycott term or condition is undecided about a response by the time a report would be required to be filed under the regulations, it is the Department's view that the person must file a report as called for in the Regulations. The person filing the report may indicate at the time of filing that he has not made a decision on the boycott request but must file a supplemental report as called for in the regulations at the time a decision is made (§ 760.5(b)(6)).
The Department has taken the position that a U.S. person as defined by § 760.1(b) of this part may not make use of an agent to furnish information that the U.S. person is prohibited from furnishing pursuant to § 760.2(d) of this part.
Example (v) under § 760.4 of this part (Evasion) provides:
“A, a U.S. company, is negotiating a long-term contract with boycotting country Y to meet all of Y's medical supply needs. Y informs A that before such a contract can be concluded, A must complete Y's boycott questionnaire. A knows that it is prohibited from answering the questionnaire so it arranges for a local agent in Y to supply the necessary information.”
“A's action constitutes evasion of this part, because it is a device to mask prohibited activity carried out on A's behalf.”
This interpretation deals with the application of the Regulations to a commercial agent registration requirement imposed by the government of Saudi Arabia. The requirement provides that nationals of Saudi Arabia seeking to register in Saudi Arabia as commercial agents or representatives of foreign concerns must furnish certain boycott-related information about the foreign concern prior to obtaining approval of the registration.
The requirement has been imposed by the Ministry of Commerce of Saudi Arabia, which is the government agency responsible for regulation of commercial agents and foreign commercial registrations. The Ministry requires the agent or representative to state the following:
“Declaration: I, the undersigned, hereby declare, in my capacity as (blank) that (name and address of foreign principal) is not presently on the blacklist of the Office for the Boycott of Israel and that it and all its branches, if any, are bound by the decisions issued by the Boycott Office and do not (1) participate in the capital of, (2) license the manufacture of any products or grant trademarks or tradeware license to, (3) give experience or technical advice to, or (4) have any other relationship with other companies which are prohibited to be dealt with by the Boycott Office. Signed (name of commercial agent/representative/distributor).”
It is the Department's view that under the circumstances specifically outlined in this interpretation relating to the nature of the requirement, a U.S. person will not be held responsible for a violation of this part when
1. The requirement for information imposed by the boycotting country applies to a national or other subject of the boycotting country qualified under the local laws of that country to function as a commercial representative within that country;
2. The registration requirement relates to the registration of the commercial agent's or representative's authority to sell or distribute goods within the boycotting country acquired from the foreign concern;
3. The requirement is a routine part of the registration process and is not applied selectively based on boycott-related criteria;
4. The requirement applies only to a commercial agent or representative in the boycotting country and does not apply to the foreign concern itself; and
5. The requirement is imposed by the agency of the boycotting country responsible for regulating commercial agencies.
The U.S. person whose agent is complying with the registration requirement continues to be subject to all the terms of the Regulations, and may not provide any prohibited information to the agent for purposes of the agent's compliance with the requirement.
In addition, the authority granted to the commercial agent or representative by the U.S. person must be consistent with standard commercial practices and not involve any grants of authority beyond those incidental to the commercial sales and distributorship responsibilities of the agent.
Because the requirement does not apply to the U.S. person, no reporting obligation under § 760.5 of this part would arise.
This interpretation, like all others issued by the Department discussing applications of the antiboycott provisions of the Export Administration Regulations, should be read narrowly. Circumstances that differ in any material way from those discussed in this notice will be considered under the applicable provisions of the Regulations. Persons are particularly advised not to seek to apply this interpretation to circumstances in which U.S. principals seek to use agents to deal with boycott-related or potential blacklisting situations.
This interpretation considers boycott-based contractual language dealing with the selection of suppliers and subcontractors. While this language borrows terms from the “unilateral and specific selection” exception contained in § 760.3(d), it fails to meet the requirements of that exception. Compliance with the requirements of the language constitutes a violation of the regulatory prohibition of boycott-based refusals to do business.
Section 760.2(a) of this part prohibits U.S. persons from refusing or knowingly agreeing to refuse to do business with other persons when such refusal is pursuant to an agreement with, requirement of, or request of a boycotting country. That prohibition does not extend to the performance of management, procurement or other pre-award services, however, notwithstanding knowledge that the ultimate selection may be boycott-based. To be permissible such services: (1) Must be customary for the firm or industry involved and (2) must not exclude others from the transaction or involve other actions based on the boycott. See § 760.2(a)(6) of this part, “Refusals to Do Business”, and example (xiii).
A specific exception is also made in the Regulations for compliance (and agreements to comply) with a unilateral and specific selection of suppliers or subcontractors by a boycotting country buyer. See § 760.3(d) of this part. In Supplement No. 1 to part 760, the following form of contractual language was said to fall within that exception for compliance with unilateral and specific selection:
“The Government of the boycotting country (or the First Party), in its exclusive power, reserves its right to make the final unilateral and specific selection of any proposed carriers, insurers, suppliers of services to be performed within the boycotting country, or of specific goods to be furnished in accordance with the terms and conditions of this contract.”
The Department noted that the actual steps necessary to comply with any selection made under this agreement would also have to meet the requirements of § 760.3(d) to claim the benefit of that exception. In other words, the discretion in selecting would have to be exercised exclusively by the boycotting country customer and the selection would have to be stated in the affirmative, naming a particular supplier. See § 760.3(d) (4) and (5) of this part.
The Office of Antiboycott Compliance has learned of the introduction of a contractual clause into tender documents issued by boycotting country governments. This clause is, in many respects, similar to that dealt with in Supplement No. 1 to part 760, but several critical differences exist.
The clause states:
In connection with the performance of this Agreement, Contractor acknowledges that the import and customs laws and regulations of boycotting country apply to the furnishing and shipment of any products or components thereof to boycotting country. The Contractor specifically acknowledges that the aforementioned import and customs laws and regulations of boycotting country prohibit, among other things, the importation into boycotting country of products or components thereof: (A) Originating in boycotted country; (B) Manufactured, produced and furnish by companies organized under the laws of boycotted country; and (C) Manufactured, produced or furnished by Nationals or Residents of boycotted country.
The Government, in its exclusive power, reserves its right to make the final unilateral and specific selection of any proposed Carriers, Insurers, Suppliers of Services to be performed within boycotting country or of specific goods to be furnished in accordance with the terms and conditions of this Contract.
To assist the Government in exercising its right under the preceding paragraph, Contractor further agrees to provide a complete list of names and addresses of all his Sub-Contractors, Suppliers, Vendors and Consultants and any other suppliers of the service for the project.
The title of this clause makes clear that its provisions are intended to be boycott-related. The first paragraph acknowledges the applicability of certain boycott-related requirements of the boycotting country's laws in language reviewed in part 760, Supplement No. 1, Part II.B. and found to constitute a permissible agreement under the exception contained in § 760.3(a) of this part for compliance with the import requirements of a boycotting country. The second and third paragraphs together deal with the procedure for selecting subcontractors and suppliers of services and goods and, in the context of the clause as a whole, must be regarded as motivated by boycott considerations and intended to enable the boycotting country government to make boycott-based selections, including the elimination of blacklisted subcontractors and suppliers.
The question is whether the incorporation into these paragraphs of some language from the “unilateral and specific selection” clause approved in Supplement No. 1 to part 760 suffices to take the language outside § 760.2(a) of this part's prohibition on boycott-based agreements to refuse to do business. While the first sentence of this clause is consistent with the language discussed in Supplement No. 1 to part 760, the second sentence significantly alters the effect of this clause. The effect is to draw the contractor into the decision-making process, thereby destroying the unilateral character of the selection by the buyer. By agreeing to submit the names of the suppliers it plans to use, the contractor is agreeing to give the boycotting country buyer, who has retained the right of final selection, the ability to reject, for boycott-related reasons, any supplier the contractor has already chosen. Because the requirement appears in the contractual provision dealing with the boycott, the buyer's rejection of any supplier whose name is given to the buyer pursuant to this provision would be presumed to be boycott-based. By signing the contract, and thereby agreeing to comply with all of its provisions, the contractor must either accept the buyer's rejection of any supplier, which is presumed to be boycott-based because of the context of this provision, or breach the contract.
In these circumstances, the contractor's method of choosing its subcontractors and suppliers, in anticipation of the buyer's boycott-based review, cannot be considered a permissible pre-award service because of the presumed intrusion of boycott-based criteria into the selection process. Thus, assuming all other jurisdictional requirements necessary to establish a violation of part 760 are met, the signing of the contract by the contractor constitutes a violation of § 760.2(a) of this part because he is agreeing to refuse to do business for boycott reasons.
The apparent attempt to bring this language within the exception for compliance with unilateral and specific selections is ineffective. The language does not place the discretion to choose suppliers in the hands of the boycotting country buyer but divides this discretion between the buyer and his principal contractor. Knowing that the buyer will not accept a boycotted company as supplier or subcontractor, the contractor is asked to use his discretion in selecting a single supplier or subcontractor for each element of the contract. The boycotting country buyer exercises discretion only through accepting or rejecting the selected supplier or contractor as its boycott policies require. In these circumstances it cannot be said that the buyer is exercising right of unilateral and specific selection which meets the criteria of § 760.3(d). For this reason, agreement to the contractual language discussed here would constitute an agreement to refuse to do business with any person rejected by the
(a)
The following language has appeared in tender documents issued by a boycotting country:
“Supplier declares his knowledge of the fact that the import, Customs and boycott laws, rules and regulations of [name of boycotting country] apply in importing to [name of boycotting country].”
“Supplier declares his knowledge of the fact that under these laws, rules and regulations, it is prohibited to import into [name of the boycotting country] any products or parts thereof that originated in [name of boycotted country]; were manufactured, produced or imported by companies formed under the laws of [name of boycotted country]; or were manufactured, produced or imported by nationals or residents of [name of boycotted country].”
Agreeing to the above contractual language is a prohibited agreement to refuse to do business, under § 760.2(a) of this part. The first paragraph requires broad acknowledgment of the application of the boycotting country's boycott laws, rules and regulations. Unless this language is qualified to apply only to boycott restrictions with which U.S. persons may comply, agreement to it is prohibited. See § 760.2(a) of this part, examples (v) and (vi) under “Agreements to Refuse to Do Business.”
The second paragraph does not limit the scope of the boycott restrictions referenced in the first paragraph. It states that the boycott laws include restrictions on goods originating in the boycotted country; manufactured, produced or supplied by companies organized under the laws of the boycotted country; or manufactured, produced or supplied by nationals or residents of the boycotted country. Each of these restrictions is within the exception for compliance with the import requirements of the boycotting country (§ 760.3(a) of this part). However, the second paragraph's list of restrictions is not exclusive. Since the boycott laws generally include more than what is listed and permissible under the antiboycott law, U.S. persons may not agree to the quoted clause. For example, a country's boycott laws may prohibit imports of goods manufactured by blacklisted firms. Except as provided by § 760.3(g) of this part, agreement to and compliance with this boycott restriction would be prohibited under the antiboycott law.
The above contractual language is distinguished from the contract clause determined to be permissible in supplement 1, Part II, A, by its acknowledgment that the boycott requirements of the boycotting country apply. Although the first sentence of the Supplement 1 clause does not exclude the possible application of boycott laws, it refers only to the import and customs laws of the boycotting country without mentioning the boycott laws as well. As discussed fully in Supplement No. 1 to part 760, compliance with or agreement to the clause quoted there is, therefore, permissible.
The contract clause quoted above, as well as the clause dealt with in Supplement No. 1 to part 760, part II, A, is reportable under § 760.5(a)(1) of this part.
(b)
The following terms frequently appear on letters of credit covering shipment to Iraq:
“Shipment to be effected by Iraqi State Enterprise for Maritime Transport Vessels or by United Arab Shipping Company (SAB) vessels, if available.”
“If shipment is effected by any of the above company's [sic] vessels, black list certificate or evidence to that effect is not required.”
These terms are not reportable and compliance with them is permissible.
The first sentence, a directive to use Iraqi State Enterprise for Maritime Transport or United Arab Shipping vessels, is neither reportable nor prohibited because it is not considered by the Department to be boycott-related. The apparent reason for the directive is Iraq's preference to have cargo shipped on its own vessels (or, as in the case of United Arab Shipping, on vessels owned by a company in part established and owned by the Iraqi government). Such “cargo preference” requirements, calling for the use of an importing or exporting country's own ships, are common throughout the world and are imposed for non-boycott reasons. (See § 760.2(a) of this part, example (vii) AGREEMENTS TO REFUSE TO DO BUSINESS.)
In contrast, if the letter of credit contains a list of vessels or carriers that appears to constitute a boycott-related whitelist, a directive to select a vessel from that list would be both reportable and prohibited. When such a directive appears in conjunction with a term removing the blacklist certificate requirement if these vessels are used, the Department will presume that beneficiaries, banks and any other U.S. person receiving the letter of credit know that there is a boycott-related purpose for the directive.
The second sentence of the letter of credit language quoted above does not, by itself, call for a blacklist certificate and is not therefore, reportable. If a term elsewhere on
(c)
Under § 760.2 (c), (d) and (e), of this part U.S. persons are prohibited, with respect to their activities in U.S. commerce, from furnishing certain information. It is the Department's position that the required nexus with U.S. commerce is established when the furnishing of information itself occurs in U.S. commerce. Even when the furnishing of information is not itself in U.S. commerce, however, the necessary relationship to U.S. commerce will be established if the furnishing of information relates to particular transactions in U.S. commerce or to anticipated transactions in U.S. commerce. See, e.g. § 760.2(d), examples (vii), (ix) and (xii) of this part.
The simplest situation occurs where a U.S. person located in the United States furnishes information to a boycotting country. The transfer of information from the United States to a foreign country is itself an activity in U.S. commerce. See § 760.1(d)(1)(iv) of this part. In some circumstances, the furnishing of information by a U.S. person located outside the United States may also be an activity in U.S. commerce. For example, the controlled foreign subsidiary of a domestic concern might furnish to a boycotting country information the subsidiary obtained from the U.S.-located parent for that purpose. The subsidiary's furnishing would, in these circumstances, constitute an activity in U.S. commerce. See § 760.1(d)(8) of this part.
Where the furnishing of information is not itself in U.S. commerce, the U.S. commerce requirement may be satisfied by the fact that the furnishing is related to an activity in U.S. foreign or domestic commerce. For example, if a shipment of goods by a controlled-in-fact foreign subsidiary of a U.S. company to a boycotting country gives rise to an inquiry from the boycotting country concerning the subsidiary's relationship with another firm, the Department regards any responsive furnishing of information by the subsidiary as related to the shipment giving rise to the inquiry. If the shipment is in U.S. foreign or domestic commerce, as defined by the regulations, then the Department regards the furnishing to be related to an activity in U.S. commerce and subject to the antiboycott regulations, whether or not the furnishing itself is in U.S. commerce.
In some circumstances, the Department may regard a furnishing of information as related to a broader category of present and prospective transactions. For example, if a controlled-in-fact foreign subsidiary of a U.S. company is requested to furnish information about its commercial dealings and it appears that failure to respond will result in its blacklisting, any responsive furnishing of information will be regarded by the Department as relating to all of the subsidiary's present and anticipated business activities with the inquiring boycotting country. Accordingly, if any of these present or anticipated business activities are in U.S. commerce, the Department will regard the furnishing as related to an activity in U.S. commerce and subject to the antiboycott regulations.
In deciding whether anticipated business activities will be in U.S. commerce, the Department will consider all of the surrounding circumstances. Particular attention will be given to the history of the U.S. person's business activities with the boycotting country and others, the nature of any activities occurring after a furnishing of information occurs and any relevant economic or commercial factors which may affect these activities.
For example, if a U.S. person has no activities with the boycotting country at present but all of its other international activities are in U.S. commerce, as defined by the Regulations, then the Department is likely to regard any furnishing of information by that person for the purpose of securing entry into the boycotting country's market as relating to anticipated activities in U.S. commerce and subject to the antiboycott regulations. Similarly, if subsequent to the furnishing of information to the boycotting country for the purpose of securing entry into its markets, the U.S. person engages in transactions with that country which are in U.S. commerce, the Department is likely to regard the furnishing as related to an activity in U.S. commerce and subject to the antiboycott regulations.
Section 760.2 (c), (d), and (e) of this part prohibits United States persons from furnishing certain types of information with intent to comply with, further, or support an unsanctioned foreign boycott against a country friendly to the United States. The Department has been asked whether prohibited information may be transmitted—that is, passed to others by a United States person who has not directly or indirectly authored the information—without such transmission constituting a furnishing of information in violation of § 760.2 (c), (d), and (e) of this part. Throughout this interpretation, “transmission” is defined as the passing on by one person of information initially authored by another. The Department believes that there is no distinction in the EAR between transmitting (as defined above) and
The EAR does not deal specifically with the relationship between transmitting and furnishing. However, the restrictions in the EAR on responses to boycott-related conditions, both by direct and indirect actions and whether by primary parties or intermediaries, indicate that U.S. persons who simply transmit prohibited information are to be treated the same under the EAR as those who both author and furnish prohibited information. This has been the Department's position in enforcement actions it has brought.
The few references in the EAR to the transmission of information by third parties are consistent with this position. Two examples, both relating to the prohibition against the furnishing of information about U.S. persons' race, religion, sex, or national origin (§ 760.2(c) of this part), deal explicitly with transmitting information. These examples (§ 760.2(c) of this part, example (v), and § 760.3(f) of this part, example (vi)) show that, in certain cases, when furnishing certain information is permissible, either because it is not within a prohibition or is excepted from a prohibition, transmitting it is also permissible. These examples concern information that may be furnished by individuals about themselves or their families. The examples show that employers may transmit to a boycotting country visa applications or forms containing information about an employee's race, religion, sex, or national origin if that employee is the source of the information and authorizes its transmission. In other words, within the limits of ministerial action set forth in these examples, employees' actions in transmitting information are protected by the exception available to the employee. The distinction between permissible and prohibited behavior rests not on the definitional distinction between furnishing and transmitting, but on the excepted nature of the information furnished by the employee. The information originating from the employee does not lose its excepted character because it is transmitted by the employer.
The Department's position regarding the furnishing and transmission of certificates of one's own blacklist status rests on a similar basis and does not support the contention that third parties may transmit prohibited information authored by another. Such self-certifications do not violate any prohibitions in the EAR (see Supplement Nos. 1(I)(B), 2, and 5(A)(2); § 760.2(f), example (xiv)). It is the Department's position that it is not prohibited for U.S. persons to transmit such self-certifications completed by others. Once again, because furnishing the self-certification is not prohibited, third parties who transmit the self-certifications offend no prohibition. On the other hand, if a third party authored information about another's blacklist status, the act of transmitting that information would be prohibited.
A third example in the EAR (§ 760.5, example (xiv) of this part), which also concerns a permissible transmission of boycott-related information, does not support the theory that one may transmit prohibited information authored by another. This example deals with the reporting requirements in § 760.5 of this part—not the prohibitions—and merely illustrates that a person who receives and transmits a self-certification has not received a reportable request.
It is also the Department's position that a U.S. person violates the prohibitions against furnishing information by transmitting prohibited information even if that person has received no reportable request in the transaction. For example, where documents accompanying a letter of credit contain prohibited information, a negotiating bank that transmits the documents, with the requisite boycott intent, to an issuing bank has not received a reportable request, but has furnished prohibited information.
While the Department does not regard the suggested distinction between transmitting and furnishing information as meaningful, the facts relating to the third party's involvement may be important in determining whether that party furnished information with the required intent to comply with, further, or support an unsanctioned foreign boycott. For example, if it is a standard business practice for one participant in a transaction to obtain and pass on, without examination, documents prepared by another party, it might be difficult to maintain that the first participant intended to comply with a boycott by passing on information contained in the unexamined documents. Resolution of such intent questions, however, depends upon an analysis of the individual facts and circumstances of the transaction and the Department will continue to engage in such analysis on a case-by-case basis.
This interpretation, like all others issued by the Department discussing applications of the antiboycott provisions of the EAR, should be read narrowly. Circumstances that differ in any material way from those discussed in this interpretation will be considered under the applicable provisions of the Regulations.
Pursuant to Articles 5, 7, and 26 of the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan and implementing legislation enacted by Jordan, Jordan's participation in the Arab economic boycott of Israel was formally terminated on August 16, 1995.
On the basis of this action, it is the Department's position that certain requests for information, action or agreement from Jordan which were considered boycott-related by implication now cannot be presumed boycott-related and thus would not be prohibited or reportable under the regulations. For example, a request that an exporter certify that the vessel on which it is shipping its goods is eligible to enter Hashemite Kingdom of Jordan ports has been considered a boycott-related request that the exporter could not comply with because Jordan has had a boycott in force against Israel. Such a request from Jordan after August 16, 1995 would not be presumed boycott-related because the underlying boycott requirement/basis for the certification has been eliminated. Similarly, a U.S. company would not be prohibited from complying with a request received from Jordanian government officials to furnish the place of birth of employees the company is seeking to take to Jordan because there is no underlying boycott law or policy that would give rise to a presumption that the request was boycott-related.
U.S. persons are reminded that requests that are on their face boycott-related or that are for action obviously in furtherance or support of an unsanctioned foreign boycott are subject to the regulations, irrespective of the country of origin. For example, requests containing references to “blacklisted companies”, “Israel boycott list”, “non-Israeli goods” or other phrases or words indicating boycott purpose would be subject to the appropriate provisions of the Department's antiboycott regulations.
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C.
(a)
(1) Transactions involving restrictive trade practices or boycotts described in part 760 of the EAR;
(2) Exports of commodities, software, or technology from the United States and any known reexports, transshipment, or diversions of items exported from the United States;
(3) Exports to Canada, if, at any stage in the transaction, it appears that a person in a country other than the United States or Canada has an interest therein, or that the item involved is to be reexported, transshipped, or diverted from Canada to another foreign country; or
(4) Any other transactions subject to the EAR, including, but not limited to, the prohibitions against servicing, forwarding and other actions for or on behalf of end-users of proliferation concern contained in §§ 736.2(b)(7) and 744.6 of the EAR. This part also applies to all negotiations connected with those transactions, except that for export control matters a mere preliminary inquiry or offer to do business and negative response thereto shall not constitute negotiations, unless the inquiry or offer to do business proposes a transaction that a reasonably prudent exporter would believe likely to lead to a violation of the EAA, the EAR or any order, license or authorization issued thereunder.
(b)
(a)
(1) Export control documents, as defined in part 772 of the EAR;
(2) Memoranda;
(3) Notes;
(4) Correspondence;
(5) Contracts;
(6) Invitations to bid;
(7) Books of account;
(8) Financial records;
(9) Restrictive trade practice or boycott documents and reports, and
(10) Other records pertaining to the types of transactions described in § 762.1(a) of this part, which are made or obtained by a person described in § 762.1(b) of this part.
(b)
(1) Part 736, General Prohibitions;
(2) § 732.6, Steps for other requirements;
(3) § 740.1, Introduction (to License Exceptions);
(4) § 740.10(c), Servicing and replacement of parts and equipment (RPL);
(5) § 740.13(f), Technology and software—unrestricted (TSU);
(6) § 743.2, High Performance Computers;
(7) Supplement No. 3 to part 742 High Performance Computers, Safeguards and Related Information;
(8) § 742.15;
(9) § 740.7, Humanitarian donations (NEED);
(10) § 746.3 Iraq.
(11) Part 747, Special Iraq Reconstruction License.
(12) § 748.4(a), Disclosure and substantiation of facts on license applications;
(13) § 748.6, General instructions for license applications;
(14) § 748.9, Support documents for license applications;
(15) § 748.10, Import and End-user Certificates;
(16) § 748.11, Statement by Ultimate Consignee and Purchaser;
(17) § 748.13, Delivery Verification (DV);
(18) § 748.2(c), Obtaining forms; mailing addresses;
(19) § 750.7, Issuance of license and acknowledgment of conditions;
(20) § 750.8, Revocation or suspension of license;
(21) § 750.9, Duplicate licenses;
(22) § 750.10, Transfer of licenses for export;
(23) § 752.7, Direct shipment to customers;
(24) § 752.9, Action on SCL applications;
(25) § 752.10, Changes to the SCL;
(26) § 752.11, Internal Control Programs;
(27) § 752.12, Recordkeeping requirements;
(28) § 752.13, Inspection of records;
(29) § 752.14, System reviews;
(30) § 752.15, Export clearance;
(31) § 754.2(j)(3), Recordkeeping requirements for deep water ballast exchange.
(32) § 754.4, Unprocessed western red cedar;
(33) § 758.1(h), Record and proof of agent's authority;
(34) § 758.1 and § 758.2, Shipper's Export Declaration or Automated Export System record;
(35) § 758.6, Destination control statements;
(36) § 760.6, Restrictive Trade Practices and Boycotts;
(37) § 762.2, Records to be retained;
(38) § 764.2, Violations;
(39) § 764.5, Voluntary self-disclosure; and
(40) § 766.10, Subpoenas;
(41) § 743.1, Wassenaar reports;
(42) § 748.14, Exports of firearms;
(43) § 745.1, Annual reports;
(44) § 745.2, End-use certificates; and
(45) § 758.2(c), Assumption writing.
(c)
(i) Date of export or reexport and related details (including means of transport);
(ii) Description of items (including ECCN) and value of items in U.S. Dollars;
(iii) Description of proposed end-use and locations in Libya where items are intended to be used;
(iv) Parties other than specific OFAC licensee who may be given temporary access to the items; and
(v) Date of consumption or destruction, if the items are consumed or destroyed in the normal course of their use in Libya, or the date of reexport to a third country not requiring further authorization from BIS, or return to the United States.
(2) [Reserved]
(a) The following types of records have been determined to be exempt from the recordkeeping requirement procedures:
(1) Export information page;
(2) Special export file list;
(3) Vessel log from freight forwarder;
(4) Inspection certificate;
(5) Warranty certificate;
(6) Guarantee certificate;
(7) Packing material certificate;
(8) Goods quality certificate;
(9) Notification to customer of advance meeting;
(10) Letter of indemnity;
(11) Financial release form;
(12) Financial hold form;
(13) Export parts shipping problem form;
(14) Draft number log;
(15) Expense invoice mailing log;
(16) Financial status report;
(17) Bank release of guarantees;
(18) Cash sheet;
(19) Commission payment back-up;
(20) Commissions payable worksheet;
(21) Commissions payable control;
(22) Check request forms;
(23) Accounts receivable correction form;
(24) Check request register;
(25) Commission payment printout;
(26) Engineering fees invoice;
(27) Foreign tax receipt;
(28) Individual customer credit status;
(29) Request for export customers code forms;
(30) Acknowledgement for receipt of funds;
(31) Escalation development form;
(32) Summary quote;
(33) Purchase order review form;
(34) Proposal extensions;
(35) Financial proposal to export customers;
(36) Sales summaries.
(b) [Reserved]
The regulated person must maintain the original records in the form in which that person receives or creates them unless that person meets all of the conditions of § 762.5 of this part relating to reproduction of records. If the original record does not meet the standards of legibility and readability described in § 762.5 of this part and the regulated person intends to rely on that record to meet the recordkeeping requirements of the EAR, that person must retain the original record.
(a) The regulated person may maintain reproductions instead of the original records provided all of the requirements of paragraph (b) of this section are met.
(b) In order to maintain the records required by § 762.2 of this part, the regulated persons defined in § 762.1 of this
(1) The system must be capable of reproducing all records on paper.
(2) The system must record and be able to reproduce all marks, information, and other characteristics of the original record, including both obverse and reverse sides of paper documents in legible form.
(3) When displayed on a viewer, monitor, or reproduced on paper, the records must exhibit a high degree of legibility and readability. (For purposes of this section, legible and legibility mean the quality of a letter or numeral that enable the observer to identify it positively and quickly to the exclusion of all other letters or numerals. Readable and readability mean the quality of a group of letters or numerals being recognized as complete words or numbers.)
(4) The system must preserve the initial image (including both obverse and reverse sides of paper documents) and record all changes, who made them and when they were made. This information must be stored in such a manner that none of it may be altered once it is initially recorded.
(5) The regulated person must establish written procedures to identify the individuals who are responsible for the operation, use and maintenance of the system.
(6) The regulated person must establish written procedures for inspection and quality assurance of records in the system and document the implementation of those procedures.
(7) The system must be complete and contain all records required to be kept by this part or the regulated person must provide a method for correlating, identifying and locating records relating to the same transaction(s) that are kept in other record keeping systems.
(8) The regulated person must keep a record of where, when, by whom, and on what equipment the records and other information were entered into the system.
(9) Upon request by the Office of Export Enforcement, the Office of Antiboycott Compliance, or any other agency of competent jurisdiction, the regulated person must furnish, at the examination site, the records, the equipment and, if necessary, knowledgeable personnel for locating, reading, and reproducing any record in the system.
(c)
(1) The name(s) of the parties to the transaction;
(2) Any country(ies) connected with the transaction; or
(3) A document reference number that was on any original document.
(d)
(a)
(1) The export from the United States of the item involved in the transaction to which the records pertain or the provision of financing, transporting or other service for or on behalf of end-users of proliferation concern as described in §§ 736.2(b)(7) and 744.6 of the EAR;
(2) Any known reexport, transshipment, or diversion of such item;
(3) Any other termination of the transaction, whether formally in writing or by any other means; or
(4) In the case of records of pertaining to transactions involving restrictive trade practices or boycotts described in part 760 of the EAR, the date the regulated person receives the boycott-related request or requirement.
(b)
(a)
(b)
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part specifies conduct that constitutes a violation of the Export Administration Act (EAA) and/or the Export Administration Regulations (EAR) and the sanctions that may be imposed for such violations. Antiboycott violations are described in part 760 of the EAR, and the violations and sanctions specified in part 764 also apply to conduct relating to part 760, unless otherwise stated. This part describes administrative sanctions that may be imposed by the Bureau of Industry and Security (BIS). This part also describes criminal sanctions that may be imposed by a United States
(a)
(b)
(c)
(d)
(e)
(f)
(1) With intent to export or reexport such item in violation of the EAA, the EAR, or any order, license or authorization issued thereunder; or
(2) With knowledge or reason to believe that the item would be so exported or reexported.
(g)
(i) In the course of an investigation or other action subject to the EAR; or
(ii) In connection with the preparation, submission, issuance, use, or maintenance of any export control document as defined in § 772.1, or any report filed or required to be filed pursuant to § 760.5 of the EAR; or
(iii) For the purpose of or in connection with effecting an export, reexport or other activity subject to the EAR.
(2) All representations, statements, and certifications made by any person are deemed to be continuing in effect. Every person who has made any representation, statement, or certification must notify BIS and any other relevant agency, in writing, of any change of any material fact or intention from that previously represented, stated, or certified, immediately upon receipt of any information that would lead a reasonably prudent person to know that a change of material fact or intention has occurred or may occur in the future.
(h)
(i)
(j)
(k)
(a)
(1)
(ii) The payment of any civil penalty may be made a condition, for a period not exceeding one year after the imposition of such penalty, to the granting, restoration, or continuing validity of any export license, License Exception, permission, or privilege granted or to be granted to the person upon whom such penalty is imposed.
(iii) The payment of any civil penalty may be deferred or suspended in whole or in part during any probation period that may be imposed. Such deferral or suspension shall not bar the collection of the penalty if the conditions of the deferral, suspension, or probation are not fulfilled.
(2)
(3)
(b)
(2)
(ii) Any person who is issued a license under the EAA or the EAR for the export or reexport of any items to a controlled country and who, with knowledge that such export or reexport is being used by such controlled country for military or intelligence gathering purposes contrary to the conditions under which the license was issued, willfully fails to report such use to the Secretary of Defense, except in the case of an individual, shall be fined not more than five times the value of the exports or reexports involved or $1,000,000, whichever is greater; and in the case of an individual, shall be fined not more than $250,000, or imprisoned not more than five years or both.
(iii) Any person who possesses any item with the intent to export or reexport such item in violation of an export control imposed under sections 5 or 6 of the EAA, the EAR, or any order or license issued thereunder, or knowing or having reason to believe that the item would be so exported or reexported, shall, in the case of a violation of an export control imposed under section 5 of the EAA (or the EAR, or any order or license issued thereunder with respect to such control), be subject to the penalties set forth in paragraph (b)(2)(i) of this section and shall in the case of a violation of an export control imposed under section 6 of the EAA (or the EAR, or any order or license issued thereunder with respect to such control), be subject to the penalties set forth in paragraph (b)(1) of this section.
(iv) Any person who takes any action with intent to evade the provisions of the EAA, the EAR, or any order or license issued thereunder, shall be subject to the penalties set forth in paragraph (b)(1) of this section, except that in the case of an evasion of an export control imposed under sections 5 or 6 of the EAA (or the EAR, or any order or license issued thereunder with respect to such control), such person shall be subject to the penalties set forth in paragraph (b)(2)(i) of this section.
(3)
(c)
(1)
(2)
(ii)
(B) The Department of Defense, among other agencies, may suspend the right of any person to contract with the United States Government based on export control violations. (Federal Acquisition Regulations 9.407-2.)
(a)
(b)
(c)
(d)
(a)
(b)
(2) The provisions of this section apply only when information is provided to OEE for its review in determining whether to take administrative action under part 766 of the EAR for violations of the export control provisions of the EAR.
(3) The provisions of this section apply only when information is received by OEE for review prior to the time that OEE, or any other agency of the United States Government, has learned the same or substantially similar information from another source and has commenced an investigation or inquiry in connection with that information.
(4) While voluntary self-disclosure is a mitigating factor in determining what administrative sanctions, if any, will be sought by OEE, it is a factor that is considered together with all other factors in a case. The weight given to voluntary self-disclosure is solely within the discretion of OEE, and the mitigating effect of voluntary self-disclosure may be outweighed by aggravating factors. Voluntary self-disclosure does not prevent transactions from being referred to the Department of Justice for criminal prosecution. In such a case, OEE would notify the Department of Justice of the voluntary self-disclosure, but the consideration of that factor is within the discretion of the Department of Justice.
(5) A firm will not be deemed to have made a disclosure under this section unless the individual making the disclosure did so with the full knowledge and authorization of the firm's senior management.
(6) The provisions of this section do not, nor should they be relied on to,
(c)
(2)
(ii) OEE recognizes that there may be situations where it will not be practical to make an initial notification in writing. For example, written notification may not be practical if a shipment leaves the United States without the required license, yet there is still an opportunity to prevent acquisition of the items by unauthorized persons. In such situations, OEE should be contacted promptly at one of the offices listed in § 764.5(c)(7) of this part.
(3)
(i) The kind of violation involved, for example, a shipment without the required license or dealing with a party denied export privileges;
(ii) An explanation of when and how the violations occurred;
(iii) The complete identities and addresses of all individuals and organizations, whether foreign or domestic, involved in the activities giving rise to the violations;
(iv) License numbers;
(v) The description, quantity, value in U.S. dollars and ECCN or other classification of the items involved; and
(vi) A description of any mitigating circumstances.
(4)
(A) Licensing documents such as licenses, license applications, import certificates and end-user statements;
(B) Shipping documents such as Shipper's Export Declarations, air waybills and bills of lading; and
(C) Other documents such as letters, facsimiles, telexes and other evidence of written or oral communications, internal memoranda, purchase orders, invoices, letters of credit and brochures.
(ii) Any relevant documents not attached to the narrative account must be retained by the person making the disclosure until OEE requests them, or until a final decision on the disclosed information has been made. After a final decision, the documents should be maintained in accordance with the recordkeeping rules in part 762 of the EAR.
(5)
(6)
(7)
(d)
(1) Inform the person making the disclosure that, based on the facts disclosed, it plans to take no action;
(2) Issue a warning letter;
(3) Issue a proposed charging letter pursuant to § 766.18 of the EAR and attempt to settle the matter;
(4) Issue a charging letter pursuant to § 766.3 of the EAR if a settlement is not reached; and/or
(5) Refer the matter to the Department of Justice for criminal prosecution.
(e)
(f)
(2) A license to reexport items that are the subject of a voluntary self-disclosure, and that have been exported contrary to the provisions of the EAA or the EAR, may be requested from BIS in accordance with the provisions of part 748 of the EAR. If the applicant for reexport authorization knows that the items are the subject of a voluntary self-disclosure, the request should state that a voluntary self-disclosure was made in connection with the export of the commodities for which reexport authorization is sought.
(a)
(b)
(c)
(d)
(a)
(b)
(i)
(A) It is not on the Commerce Control List in Supplement No.1 to Part 774 of the EAR;
(B) It is on the Commerce Control List, but is authorized for export or reexport pursuant to a License Exception to Libya; or
(C) It is on the Commerce Control List and controlled only for AT reasons or for NS and AT reasons only, and is not listed on the Wassenaar Arrangement's Sensitive List (Annex 1) or Very Sensitive List (Annex 2) posted on the Wassenaar Arrangement's Web site (
An item being exported or reexported to Libya may require a license based on the classification of the item to be exported or reexported regardless of whether the item will be used in connection with an installed base item. See paragraph (b)(4) of this section.
Not all items listed on the Wassenaar Arrangement's Annex 1, Sensitive List, and Annex 2, Very Sensitive List, fall under the export licensing jurisdiction of the Department of Commerce. Please refer to the Commerce Control List for additional jurisdictional information related to those items. Also, if you do not have access to the internet to review the Wassenaar Arrangement's Sensitive List and Very Sensitive List, please contact the Office of Exporter Services, Division of Exporter Counseling for assistance at telephone number (202) 482-4811.
(ii)
(2)
(ii)
(3)
(4)
(a)
(2) Each denial order shall include:
(i) The name and address of any denied persons and any related persons subject to the denial order;
(ii) The basis for the denial order, such as final decision following charges of violation, settlement agreement, section 11(h) of the EAA, or temporary denial order request;
(iii) The period of denial, the effective date of the order, whether and for how long any portion of the denial of export privileges is suspended, and any conditions of probation; and
(iv) Whether any or all outstanding licenses issued under the EAR to the person(s) named in the denial order or in which such person(s) has an interest, are suspended or revoked.
Denial orders issued prior to March 25, 1996, are to be construed, insofar as possible, as having the same scope and effect as the standard denial order.
The introduction to each denial order shall be specific to that order, and shall include: (1) The name and address of any denied persons and any related persons subject to the denial order; (2) the basis for the denial order, such as final decision following charges of violation, settlement agreement, § 11(h) of the EAA, or temporary denial order request; (3) the period of denial, the effective date of the order, whether and for how long any portion of the denial of export privileges is suspended, and any conditions of probation; and (4) whether any or all outstanding licenses issued under the EAR to the person(s) named in the denial order or in which such person(s) has an interest, are suspended or revoked.
(b)
“It is therefore ordered:
First, that [the denied person(s)] may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Export Administration Regulations (EAR), or in any other activity subject to the EAR, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefiting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
Second, that no person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the denied person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a denied person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a denied person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the denied person of any item subject to the EAR that has been exported from the United States;
D. Obtain from the denied person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a denied person, or service any item, of whatever origin, that is owned, possessed or controlled by a denied person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Third, that, after notice and opportunity for comment as provided in § 766.23 of the EAR, any person, firm, corporation, or business organization related to the denied person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this order.
Fourth, that this order does not prohibit any export, reexport, or other transaction subject to the EAR where the only items involved that are subject to the EAR are the foreign-produced direct product of U.S.-origin technology.
This order, which constitutes the final agency action in this matter, is effective [DATE].”
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII,
As used in this part, the following definitions apply:
(a)
(b)
(1) By mailing a copy by registered or certified mail addressed to the respondent at the respondent's last known address;
(2) By leaving a copy with the respondent or with an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process for the respondent; or
(3) By leaving a copy with a person of suitable age and discretion who resides at the respondent's last known dwelling.
(4) Delivery of a copy of the charging letter, if made in the manner described in paragraph (b)(2) or (3) of this section, shall be evidenced by a certificate of service signed by the person making such service, stating the method of service and the identity of the person with whom the charging letter was left. The certificate of service shall be filed with the administrative law judge.
(c)
A respondent individual may appear and participate in person, a corporation by a duly authorized officer or employee, and a partnership by a partner. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides if not the United States. A respondent personally, or through counsel or other representative, shall file a notice of appearance with the administrative law judge. BIS will be represented by the Office of Chief Counsel for Industry and Security, U.S. Department of Commerce.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(a)
(b)
(2)
At any time after a proceeding has been initiated, a party may move for a summary decision disposing of some or all of the issues. The administrative law judge may render an initial or recommended decision and issue or recommend an order if the entire record shows, as to the issue(s) under consideration:
(a) That there is no genuine issue as to any material fact; and
(b) That the moving party is entitled to a summary decision as a matter of law.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(a)
(b)
(a) The administrative law judge, on the judge's own motion or on request of a party, may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider:
(1) Simplification of issues;
(2) The necessity or desirability of amendments to pleadings;
(3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or
(4) Such other matters as may expedite the disposition of the proceedings.
(b) The administrative law judge may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the judge.
(c) If a prehearing conference is impracticable, the administrative law judge may direct the parties to correspond with the judge to achieve the purposes of such a conference.
(d) The administrative law judge will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties.
(a)
(b)
(c)
(d)
(a) At the request of a party, or on the judge's own initiative, the administrative law judge may certify to the Under Secretary for review a ruling that does not finally dispose of a proceeding, if the administrative law judge determines that immediate review may hasten or facilitate the final disposition of the matter.
(b) Upon certification to the Under Secretary of the interlocutory ruling for review, the parties will have 10 days to file and serve briefs stating their positions, and five days to file and serve replies, following which the Under Secretary will decide the matter promptly.
If the parties have waived a hearing, the case will be decided on the record by the administrative law judge. Proceeding without a hearing does not relieve the parties from the necessity of proving the facts supporting their charges or defenses. Affidavits or declarations, depositions, admissions, answers to interrogatories and stipulations may supplement other documentary evidence in the record. The administrative law judge will give each party reasonable opportunity to file rebuttal evidence.
(a)
(b)
(2) The administrative law judge may, on the judge's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time within which to file and serve an answer to a charging letter or do any other act required by this part.
(a)
(1) Exceptions to any ruling by the judge or to the admissibility of evidence proffered at the hearing;
(2) Proposed findings of fact and conclusions of law;
(3) Supporting legal arguments for the exceptions and proposed findings and conclusions submitted; and
(4) A proposed order.
(b)
(1)
(2)
(c)
(d)
(a)
(b)
(2) If the case is pending before the Under Secretary under § 766.21 or § 766.22 of this part, the parties may submit a settlement proposal to the Under Secretary for approval and signature. If the Under Secretary approves the proposal, he/she will issue an appropriate order. If the Under Secretary does not approve the proposal, the case will proceed to final decision in accordance with § 766.21 or § 766.22 of this part, as appropriate.
(c) Any order disposing of a case by settlement may suspend the administrative sanction imposed, in whole or in part, on such terms of probation or other conditions as the signing official may specify. Any such suspension may be modified or revoked by the signing official, in accordance with the procedures set forth in § 766.17(c) of this part.
(d) Any respondent who agrees to an order imposing any administrative sanction does so solely for the purpose of resolving the claims in the administrative enforcement proceeding brought under this part. This reflects the fact that BIS has neither the authority nor the responsibility for instituting, conducting, settling, or otherwise disposing of criminal proceedings. That authority and responsibility are vested in the Attorney General and the Department of Justice.
(e) Cases that are settled may not be reopened or appealed.
(f) Supplement No. 1 to this part describes how BIS typically exercises its discretion regarding the terms under which it is willing to settle particular cases, other than antiboycott matters under part 760 of the EAR.
The respondent may petition the administrative law judge within one year of the date of the final decision, except
(a)
(b)
(c)
(ii) For proceedings started before October 12, 1979, the public availability of the record for decision will be governed by the applicable regulations in effect when the proceedings were begun.
(2)
(ii)
(a)
(1) That a necessary finding of fact is omitted, erroneous or unsupported by substantial evidence of record;
(2) That a necessary legal conclusion or finding is contrary to law;
(3) That prejudicial procedural error occurred, or
(4) That the decision or the extent of sanctions is arbitrary, capricious or an abuse of discretion. The appeal must specify the grounds on which the appeal is based and the provisions of the order from which the appeal is taken.
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(1) A person named as related to the respondent in an order issued pursuant to § 766.25 may file an appeal with the Under Secretary for Industry and Security pursuant to part 756 of the EAR.
(2) A person named as related to the respondent in an order issued pursuant to other provisions of this part may file an appeal with the administrative law judge.
(i) If the order made applicable to the related person is for a violation related to part 760 of the EAR, the related person may file an appeal with the administrative law judge. The related person may appeal the initial decision and order of the administrative law judge to the Under Secretary in accordance with the procedures set forth in § 766.21.
(ii) If the order made applicable to the related person is issued pursuant to § 766.24 of this part to prevent an imminent violation, the recommended decision and order of the administrative law judge shall be reviewed by the Under Secretary in accordance with the procedures set forth in § 766.24(e) of this part.
(iii) If the order made applicable to the related person is for a violation of the EAR not related to part 760 of the EAR and not issued pursuant to § 766.24 of this part, the recommended decision and order of the administrative law judge shall be reviewed by the Under Secretary in accordance with the procedures set forth in § 766.22 of this part.
(a)
(b)
(2) The temporary denial order shall define the imminent violation and state why it was issued without a hearing. Because all denial orders are public, the description of the imminent violation and the reasons for proceeding on an
(3) A violation may be “imminent” either in time or in degree of likelihood. To establish grounds for the temporary denial order, BIS may show either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations. To indicate the likelihood of future violations, BIS may show that the violation under investigation or charges is significant, deliberate, covert and/or likely to occur again, rather than technical or negligent, and that it is appropriate to give notice to companies in the United States and abroad to cease dealing with the person in U.S.-origin items in order to reduce the likelihood that a person under investigation or charges continues to export or acquire abroad such items, risking subsequent disposition contrary to export control requirements. Lack of information establishing the precise time a violation may occur does not preclude a finding that a violation is imminent, so long as there is sufficient reason to believe the likelihood of a violation.
(4) The temporary denial order will be issued for a period not exceeding 180 days.
(5) Notice of the issuance of a temporary denial order on an
(c)
(d)
(2)
(3)
(ii) Any person designated as a related person may not oppose the issuance or renewal of the temporary denial order, but may file an appeal in accordance with § 766.23(c) of this part.
(iii) If no written opposition to BIS's renewal request is received within the specified time, the Assistant Secretary may issue the order renewing the temporary denial order without a hearing.
(4) A temporary denial order may be renewed more than once.
(e)
(ii) The filing of an appeal shall stay neither the effectiveness of the temporary denial order nor any application for renewal, nor will it operate to bar the Assistant Secretary's consideration of any renewal application.
(2)
(3)
(4)
(5)
(f)
(g)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
This Supplement describes how BIS responds to violations of the Export Administration Regulations (EAR) and, specifically, how BIS makes penalty determinations in the settlement of civil administrative enforcement cases under part 764 of the EAR. This guidance does not apply to enforcement cases for antiboycott violations under part 760 of the EAR.
Because many administrative enforcement cases are resolved through settlement, the process of settling such cases is integral to the enforcement program. BIS carefully considers each settlement offer in light of the facts and circumstances of the case, relevant precedent, and BIS's objective to achieve in each case an appropriate level of penalty and deterrent effect. In settlement negotiations, BIS encourages parties to provide, and will give serious consideration to, information and evidence that parties believe are relevant to the application of this guidance to their cases, to whether a violation has in fact occurred, or to whether they have an affirmative defense to potential charges.
This guidance does not confer any right or impose any obligation regarding what penalties BIS may seek in litigating a case or what posture BIS may take toward settling a case. Parties do not have a right to a settlement offer, or particular settlement terms, from BIS, regardless of settlement postures BIS has taken in other cases.
The Office of Export Enforcement (OEE), among other responsibilities, investigates
A.
OEE will not issue a warning letter if it concludes, based on available information, that a violation did not occur. A warning letter does not constitute a final agency determination that a violation has occurred.
B.
C.
There are three types of administrative sanctions under § 764.3(a) of the EAR: a civil penalty, a denial of export privileges, and an exclusion from practice before BIS. Administrative enforcement cases are generally settled on terms that include one or more of these sanctions.
A.
B.
C.
A.
(1) Exports or reexports to countries subject to anti-terrorism controls, as described at § 742.1(d) of the EAR.
(2) Exports or reexports to destinations particularly implicated by the type of control that applies to the item in question—for example, export of items subject to nuclear controls to a country with a poor record of nuclear non-proliferation.
Violations involving exports or reexports to other destinations may also warrant consideration of such sanctions, depending on factors such as the degree of willfulness involved, the nature and extent of harm to national security or other essential interests protected by the export control system, and what level of sanctions are determined to be necessary to deter or prevent future violations of the EAR.
Where a factor admits of degrees, it should accordingly be given more or less weight. Thus, for example, one prior violation should be given less weight than a history of multiple violations, and a previous violation reported in a voluntary self disclosure by an exporter whose overall export compliance efforts are of high quality should be given less weight than previous violation(s) not involving such mitigating factors.
Some of the mitigating factors listed in this section are designated as having “great weight.” When present, such a factor should ordinarily be given considerably more weight than a factor that is not so designated.
1. The party made a voluntary self-disclosure of the violation, satisfying the requirements of § 764.5 of the EAR. All voluntary self-disclosures meeting the requirements of § 764.5 will be afforded “great weight,” relative to other mitigating factors not designated as having “great weight.” Voluntary self-disclosures receiving the greatest mitigating effect will typically be those concerning violations that no BIS investigation in existence at the time of the self-disclosure would have been reasonably likely to discover without the self-disclosure. (GREAT WEIGHT)
2. The party has an effective export compliance program and its overall export compliance efforts have been of high quality. In determining the presence of this factor, BIS will take account of the extent to which a party complies with the principles set forth in BIS's Export Management System (EMS) Guidelines. Information about the EMS Guidelines can be accessed through the BIS Web site at
3. The violation was an isolated occurrence or the result of a good-faith misinterpretation.
4. Based on the facts of a case and under the applicable licensing policy, required authorization for the export transaction in question would likely have been granted upon request.
5. Other than with respect to antiboycott matters under part 760 of the EAR:
(a) The party has never been convicted of an export-related criminal violation;
(b) In the past five years, the party has not entered into a settlement of an export-related administrative enforcement case with BIS or another U.S. Government agency or been found liable in an export-related administrative enforcement case brought by BIS or another U.S. Government agency;
(c) In the past three years, the party has not received a warning letter from BIS; and
(d) In the past five years, the party has not otherwise violated the EAR.
Where necessary to effective enforcement, the prior involvement in export violation(s) of a party's owners, directors, officers, partners, or other related persons may be imputed to a party in determining whether these criteria are satisfied. When an acquiring firm takes reasonable steps to uncover, correct, and disclose to BIS conduct that gave rise to violations by an acquired business before the acquisition, BIS typically will not take such violations into account in applying this factor in settling other violations by the acquiring firm.
6. The party has cooperated to an exceptional degree with BIS efforts to investigate the party's conduct.
7. The party has provided substantial assistance in BIS investigation of another person who may have violated the EAR.
8. The violation was not likely to involve harm of the nature that the applicable provisions of the EAA, EAR or other authority (
9. At the time of the violation, the party: (1) Had little or no previous export experience; and (2) Was not familiar with export practices and requirements. (Note: The presence of only one of these elements will not generally be considered a mitigating factor.)
1. The party made a deliberate effort to hide or conceal the violation(s). (GREAT WEIGHT)
2. The party's conduct demonstrated a serious disregard for export compliance responsibilities. (GREAT WEIGHT)
3. The violation was significant in view of the sensitivity of the items involved and/or the reason for controlling them to the destination in question. This factor would be present where the conduct in question, in purpose or effect, substantially implicated
4. The violation was likely to involve harm of the nature that the applicable provisions of the EAA, EAR or other authority (
5. The quantity and/or value of the exports was high, such that a greater penalty may be necessary to serve as an adequate penalty for the violation or deterrence of future violations, or to make the penalty proportionate to those for otherwise comparable violations involving exports of lower quantity or value.
6. The presence in the same transaction of concurrent violations of laws and regulations, other than those enforced by BIS.
7. Other than with respect to antiboycott matters under part 760 of the EAR:
(a) The party has been convicted of an export-related criminal violation;
(b) In the past five years, the party has entered into a settlement of an export-related administrative enforcement case with BIS or another U.S. Government agency or has been found liable in an export-related administrative enforcement case brought by BIS or another U.S. Government agency;
(c) In the past three years, the party has received a warning letter from BIS; or
(d) In the past five years, the party otherwise violated the EAR.
Where necessary to effective enforcement, the prior involvement in export violation(s) of a party's owners, directors, officers, partners, or other related persons may be imputed to a party in determining whether these criteria are satisfied. When an acquiring firm takes reasonable steps to uncover, correct, and disclose to BIS conduct that gave rise to violations by an acquired business before the acquisition, BIS typically will not take such violations into account in applying this factor in settling other violations by the acquiring firm.
8. The party exports as a regular part of the party's business, but lacked a systematic export compliance effort.
In deciding whether and what scope of denial or exclusion order is appropriate, the following factors are particularly relevant: the presence of mitigating or aggravating factors of great weight; the degree of willfulness involved; in a business context, the extent to which senior management participated in or was aware of the conduct in question; the number of violations; the existence and seriousness of prior violations; the likelihood of future violations (taking into account relevant export compliance efforts); and whether a monetary penalty can be expected to have a sufficient deterrent effect.
A.
B.
50 U.S.C. app. 2401
In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C.
(a)
(b)
(c)
(1)
(2)
(d)
(a)
(b)
(1) Foreign availability to a controlled country; and
(2) Foreign availability to a non-controlled country.
See § 768.7 of this part for delineation of the foreign availability assessment procedures, and § 768.6 of this part for the criteria used in determining foreign availability)
(a)
(b)
(1) Denied license assessment; and
(2) Decontrol assessment.
(c)
(a)
(b)
(c)
(2) A TAC may request that BIS initiate a decontrol assessment at any time by submitting a TAC Certification to BIS that there is foreign availability to a controlled country for items that fall within the area of the TAC's technical expertise.
(3) The Secretary, on his/her own initiative, may initiate a decontrol assessment.
(d)
(a) All foreign availability submissions must contain, in addition to information on product or technology alleged to be available from foreign sources, at least:
(1) The name of the claimant;
(2) The claimant's mailing and business address;
(3) The claimant's telephone number; and
(4) A contact point and telephone number.
(b) Foreign availability submissions and TAC certifications should contain as much evidence as is available to support the claim, including, but not limited to:
(1) Product names and model designations of the items alleged to be comparable;
(2) Extent to which the alleged comparable item is based on U.S. technology;
(3) Names and locations of the non-U.S. sources and the basis for claiming that the item is a non-U.S. source item;
(4) Key performance elements, attributes, and characteristics of the items on which a qualitative comparison may be made;
(5) Non-U.S. source's production quantities and/or sales of the alleged comparable items and marketing efforts;
(6) Estimated market demand and the economic impact of the control;
(7) Product names, model designations, and value of U.S. controlled parts and components incorporated in the items alleged to be comparable; and
(8) The basis for the claim that the item is available-in-fact to the country or countries for which foreign availability is alleged.
(c) Supporting evidence of foreign availability may include, but is not limited to, the following:
(1) Foreign manufacturers' catalogs, brochures, operation or maintenance manuals;
(2) Articles from reputable trade and technical publications;
(3) Photographs;
(4) Depositions based on eyewitness accounts; and
(5) Other credible evidence.
See Supplement No. 1 to part 768 for additional examples of supporting evidence.
(d) Upon receipt of a FAS or TAC certification, BIS will review it to determine whether there is sufficient evidence to support the belief that foreign availability may exist. If BIS determines the FAS or TAC certification is lacking in supporting evidence, BIS will seek additional evidence from appropriate sources, including the claimant or TAC. BIS will initiate the assessment when it determines that it has sufficient evidence that foreign availability may exist. Claimant and TAC certified assessments will be deemed to be initiated as of the date of such determination.
(e) Claimants and TACs are advised to review the foreign availability assessment criteria described in § 768.6 of this part and the examples of evidence described in Supplement No. 1 to part
BIS will evaluate the evidence contained in a FAS or TAC certification and all other evidence gathered in the assessment process in accordance with certain criteria that must be met before BIS can recommend a positive determination to the Secretary. The criteria are defined in § 768.1(d) of this part. In order to initiate an assessment, each FAS and TAC certification should address each of these criteria. The criteria are statutorily prescribed and are:
(a) Available-in-fact;
(b) Non-U.S. source;
(c) Sufficient quantity; and
(d) Comparable quality.
(a)
(2) BIS will publish a
(3) BIS will notify the Departments of Defense and State, the intelligence community, and any other departments, agencies and their contractors that may have information concerning the item on which BIS has initiated an assessment. Each such department, agency, and contractor shall provide BIS all relevant information concerning the item. BIS will invite interested departments and agencies to participate in the assessment process (See paragraph (e) of this section).
(b)
(c)
(d)
(2) BIS will recommend on the basis of its analysis that the Secretary determine that foreign availability exists to a country when the available evidence demonstrates that an item of comparable quality is available-in-fact to the country, from non-U.S. sources, in sufficient quantity so that continuation of the existing national security export control, or denial of the license application in question on national security grounds, would be ineffective in achieving its purpose. For a controlled country, such control or denial is “ineffective” when comparable items are available-in-fact from foreign sources in sufficient quantities so that maintaining such control or denying a license would not be effective in restricting the availability of items that would make a significant contribution to the military potential of any country or combination of countries detrimental to the national security of the United States.
(3) The Secretary will make the determination of foreign availability on the basis of the BIS assessment and recommendation; the Secretary's determination will take into account the
(4) For all decontrol and denied license assessments (under section 5(f)(3) of the EAA) initiated by a FAS, the Secretary will make a determination within 4 months of the initiation of the assessment and will notify the claimant. The Secretary will submit positive determinations for review to the appropriate departments and agencies.
(5) The deadlines for determinations based on self-initiated and TAC-initiated assessments are different from the deadlines for claimant-initiated assessments (see paragraphs (f)(2) and (f)(3) of this section).
(e)
(f)
(i) Foreign availability exists, and
(A) The requirement of a license has been removed or the license application in question has been approved; or
(B) The President has determined that for national security purposes the export controls must be maintained or the license application must be denied, notwithstanding foreign availability, and that appropriate steps to eliminate the foreign availability are being initiated; or
(C) In the case of an item controlled multilaterally under the former COCOM regime, the U.S. Government will conduct any necessary consultations concerning the proposed decontrol or approval of the license with the former COCOM regime for a period of up to 4 months from the date of the publication of the determination in the
(ii) Foreign availability does not exist.
(2) For all TAC certification assessments, the Secretary will make a foreign availability determination within 90 days following initiation of the assessment. BIS will prepare and submit a report to the TAC and to the Congress stating that:
(i) The Secretary has found foreign availability and has removed the license requirement; or
(ii) The Secretary has found foreign availability, but has recommended to the President that negotiations be undertaken to eliminate the foreign availability; or
(iii) The Secretary has not found foreign availability.
(3) There is no statutory deadline for assessments self-initiated by the Secretary or for the resulting determination. However, BIS will make every effort to complete such assessments and determinations promptly.
(g)
(h)
(i)
(2) There are two types of National Security Overrides:
(i) An NSO of a determination of foreign availability resulting from an assessment initiated pursuant to section 5(f) of the EAA (claimant and self-initiated assessments); and
(ii) An NSO of a determination of foreign availability resulting from an assessment initiated pursuant to section 5(h) of the EAA (TAC-certification assessments).
(3) For an NSO resulting from an assessment initiated under section 5(f) of the EAA, the Secretary of any agency may recommend that the President exercise the authority under the EAA to retain the controls or deny the license notwithstanding the finding of foreign availability.
(4) For an NSO resulting from an assessment initiated under section 5(h) of the EAA, the Secretary of Commerce may recommend that the President exercise the authority under the EAA to retain the controls notwithstanding the finding of foreign availability.
(5) Under an NSO resulting from an assessment initiated under section 5(f) of the EAA, the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on International Relations of the House of Representatives will be notified of the initiation of the required negotiations. The notice will include an explanation of the national security interest that necessitates the retention of controls.
(6) Under an NSO resulting from an assessment initiated under section 5(f) of the EAA, BIS will publish notices in the
(i) The Secretary's determination of foreign availability;
(ii) The President's decision to exercise the NSO;
(iii) A concise statement of the basis for the President's decision; and
(iv) An estimate of the economic impact of the decision.
(7) The 6 month effective period for an NSO may be extended up to an additional 12 months if, prior to the end of the 6 months, the President certifies to Congress that the negotiations are progressing, and determines that the absence of the controls would continue to be detrimental to the United States national security.
(8) After the conclusion of negotiations, BIS will retain the control only to the extent that foreign availability is eliminated. If foreign availability is not eliminated, BIS will decontrol the item by removing the requirement for a license for the export of the item to the destinations covered by the assessment. To the extent that the negotiations are successful and the foreign availability is eliminated, BIS will remove the license requirement for the export of the item to any country that has agreed to eliminate foreign availability.
(j)
(a) BIS determines the eligibility of an item for expedited licensing procedures on the basis of an evaluation of the foreign availability of the item. Eligibility is specific to the items and the countries to which they are found to be available.
(b) BIS will initiate an eligibility evaluation:
(1) On its own initiative;
(2) On receipt of a FAS; or
(3) On receipt of a TAC certification.
(c) Upon initiation of an eligibility evaluation following receipt of either a FAS or TAC certification, BIS will notify the claimant or TAC of the receipt and initiation of an evaluation and publish a
(d) The criteria for determining eligibility for expedited licensing procedures are:
(1) The item must be available-in-fact to the specified
non-controlled country from a foreign source;
(2) The item must be of a quality similar to that of the U.S.-controlled item; and
(3) The item must be available-in-fact to the specified non-controlled country without effective restrictions.
(e) Within 30 days of initiation of the evaluation, the Secretary of Commerce will make a determination of foreign availability on the basis of the BIS evaluation and recommendation, taking into consideration the evidence the Secretaries of Defense, State, and other interested agencies provide to BIS and any other information that the Secretary considers relevant.
(f) Within 30 days of the receipt of the FAS or TAC certification, BIS will publish the Secretary's determination in the
(g) Following completion of a self-initiated evaluation, BIS will be notified of the Secretary's determination and, where appropriate, Supplement No. 2 to part 768 will be amended.
(h) Foreign availability submissions and TAC certifications to initiate an expedited licensing procedure evaluation must be clearly designated on their face as a request for expedited licensing procedure and must specify the items, quantities and countries alleged eligible. Submissions and certifications should be sent to: Department of Commerce, Bureau of Industry and Security, 14th Street and Pennsylvania Avenue, NW., Room 3877, Washington, DC 20230.
Appeals of negative determinations will be conducted according to the standards and procedures described in part 756 of the EAR. A Presidential decision (NSO) to deny a license or continue controls notwithstanding a determination of foreign availability is not subject to appeal.
Where the Secretary has removed national security controls on an item for foreign availability reasons, the Secretary will also remove controls on similar items that are controlled for national security reasons and whose functions, technological approach, performance thresholds, and other attributes that form the basis for national security export controls do not exceed the technical parameters of the item that BIS has decontrolled for foreign availability reasons.
This supplement provides a list of examples of evidence that the Bureau of Industry and Security (BIS) has found to be useful in conducting assessments of foreign availability. A claimant submitting evidence supporting a claim of foreign availability should review this list for suggestions as evidence is collected. Acceptable evidence indicating possible foreign availability is not limited to these examples, nor is any one of these examples, usually, in and of itself, necessarily sufficient to meet a foreign availability criterion. A combination of several types of evidence for each criterion usually is required. A Foreign Availability Submission (FAS) should include as much evidence as possible on all four of the criteria listed below. BIS combines the submitted evidence with the
(a) Examples of evidence of foreign availability:
The following are intended as examples of evidence that BIS will consider in evaluating foreign availability. BIS will evaluate all evidence according to the provisions in § 768.7(c) of this part in order for it to be used in support of a foreign availability determination. This list is illustrative only.
(1)
(i) Evidence of marketing of an item in a foreign country (e.g., an advertisement in the media of the foreign country that the item is for sale there);
(ii) Copies of sales receipts demonstrating sales to foreign countries;
(iii) The terms of a contract under which the item has been or is being sold to a foreign country;
(iv) Information, preferably in writing, from an appropriate foreign government official that the government will not deny the sale of an item it produces to another country in accordance with its laws and regulations;
(v) Information, preferably in writing, from a named company official that the company legally can and would sell an item it produces to a foreign country;
(vi) Evidence of actual shipments of the item to foreign countries (e.g., shipping documents, photographs, news reports);
(vii) An eyewitness report of such an item in operation in a foreign country, providing as much information as available, including where possible the make and model of the item and its observed operating characteristics;
(viii) Evidence of the presence of sales personnel or technical service personnel in a foreign country;
(ix) Evidence of production within a foreign country;
(x) Evidence of the item being exhibited at a trade fair in a foreign country, particularly for the purpose of inducing sales of the item to the foreign country;
(xi) A copy of the export control laws or regulations of the source country, showing that the item is not controlled; or
(xii) A catalog or brochure indicating the item is for sale in a specific country.
(2)
(i) Names of foreign manufacturers of the item including, if possible, addresses and telephone numbers;
(ii) A report from a reputable source of information on commercial relationships that a foreign manufacturer is not linked financially or administratively with a U.S. company;
(iii) A list of the components in the U.S. item and foreign item indicating model numbers and their sources;
(iv) A schematic of the foreign item identifying its components and their sources;
(v) Evidence that the item is a direct product of foreign technology (e.g., a patent law suit lost by a U.S. producer, a foreign patent);
(vi) Evidence of indigenous technology, production facilities, and the capabilities at those facilities; or
(vii) Evidence that the parts and components of the item are of foreign origin or are exempt from U.S. licensing requirements by the parts and components provision § 732.4 of the EAR.
(3)
(i) Evidence that foreign sources have the item in serial production;
(ii) Evidence that the item or its product is used in civilian applications in foreign countries;
(iii) Evidence that a foreign country is marketing in the specific country an item of its indigenous manufacture;
(iv) Evidence of foreign inventories of the item;
(v) Evidence of excess capacity in a foreign country's production facility;
(vi) Evidence that foreign countries have not targeted the item or are not seeking to purchase it in the West;
(vii) An estimate by a knowledgeable source of the foreign country's needs; or
(viii) An authoritative analysis of the worldwide market (i.e., demand, production rate for the item for various manufacturers, plant capacities, installed tooling, monthly production rates, orders, sales and cumulative sales over 5-6 years).
(4)
(i) A sample of the foreign item;
(ii) Operation or maintenance manuals of the U.S. and foreign items;
(iii) Records or a statement from a user of the foreign item;
(iv) A comparative evaluation, preferably in writing, of the U.S. and foreign items by, for example, a western producer or purchaser of the item, a recognized expert, a reputable trade publication, or independent laboratory;
(v) A comparative list identifying, by manufacturers and model numbers, the key performance components and the materials used in the item that qualitatively affect the performance of the U.S. and foreign items;
(vi) Evidence of the interchangeability of U.S. and foreign items;
(vii) Patent descriptions for the U.S. and foreign items;
(viii) Evidence that the U.S. and foreign items meet a published industry, national, or international standard;
(ix) A report or eyewitness account, by deposition or otherwise, of the foreign item's operation;
(x) Evidence concerning the foreign manufacturers' corporate reputation;
(xi) Comparison of the U.S. and foreign end item(s) made from a specific commodity, tool(s), device(s), or technical data; or
(xii) Evidence of the reputation of the foreign item including, if possible, information on maintenance, repair, performance, and other pertinent factors.
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part provides commodity, technology, and software interpretations. These interpretations clarify the scope of controls where such scope is not readily apparent from the Commerce Control List (CCL) (see Supplement No. 1 to part 774 of the EAR) and other provisions of the Export Administration Regulations.
(a)
(2) An anti-friction bearing or bearing system physically incorporated in a segment of a machine or in a complete machine prior to shipment loses its identity as a bearing. In this scenario, the machine or segment of machinery containing the bearing is the item subject to export control requirements.
(3) An anti-friction bearing or bearing system not incorporated in a segment of a machine prior to shipment, but shipped as a component of a complete unassembled (knocked-down) machine, is considered a component of a machine. In this scenario, the complete machine is the item subject to export license requirements.
(b)
(2)
(c) [Reserved]
(d)
(e)
(2)
(ii) When preparing the Shipper's Export Declaration (SED) or Automated Export System (AES) record, a system being shipped complete (
(f)
(g)
(1) Cartridge and shell cases that have been rendered useless beyond the possibility of restoration to their original identity by means of excessive heating, flame treatment, mangling, crushing, cutting, or by any other method are “scrap”.
(2) Cartridge and shell cases that have been sold by the armed services as “scrap”, whether or not they have been heated, flame-treated, mangled, crushed, cut, or reduced to scrap by any other method.
(3) Other commodities that may have been on the U.S. Munitions List are “scrap”, and therefore under the jurisdiction of the Department of Commerce, if they have been rendered useless beyond the possibility of restoration to their original identity only by means of mangling, crushing, or cutting. When in doubt as to whether a commodity covered by the Munitions List has been rendered useless, exporters should consult the Directorate of Defense Trade Controls, U.S. Department of State, Washington, DC 20520, or the Exporter Counseling Division, Office of Exporter Services, Room 1099A, U.S. Department of Commerce, Washington, DC 20230, before reporting a shipment as metal scrap.
(h)
(2) Modification of a ground vehicle for military use entails a structural, electrical or mechanical change involving one or more specially designed military components. Such components include, but are not limited to:
(i) Pneumatic tire casings of a kind designed to be bullet-proof or to run when deflated;
(ii) Tire inflation pressure control systems, operated from inside a moving vehicle;
(iii) Armored protection of vital parts, (
(iv) Special reinforcements for mountings for weapons.
(3)
(4)
(i)
(1) Any aircraft (except an aircraft that has been demilitarized, but including aircraft specified in paragraph (i)(2) of this section) that conforms to a Federal Aviation Agency type certificate in the normal, utility, acrobatic, transport, or restricted category, provided such aircraft has not been equipped with or modified to include military
(2) Only the following military aircraft, demilitarized (aircraft not specifically equipped, reequipped, or modified for military operations):
(i) Cargo, bearing designations “C-45 through C-118 inclusive,” and “C-121”;
(ii) Trainers, bearing a “T” designation and using piston engines;
(iii) Utility, bearing a “U” designation and using piston engines;
(iv) Liaison, bearing an “L” designation; and
(v) Observation, bearing an “O” designation and using piston engines.
(3) All reciprocating engines.
(4) Other aircraft engines not specifically designed or modified for military aircraft.
(5) Parts, accessories, and components (including propellers), designed exclusively for aircraft and engines described in paragraphs (i)(1), (i)(2), (i)(3), and (i)(4) of this section.
(6) General purpose parts, accessories, and components usable interchangeably on either military or civil aircraft.
(j)
(2) The Department of State, retains jurisdiction over all software and technology for inertial navigation systems and navigation equipment, and specially designed components therefor, for shipborne use, underwater use, ground vehicle use, spaceborne use or use other than “civil aircraft”.
(k)
(l)
Digital computers or computer systems classified under ECCN 4A003.a, .b, or .c that qualify for License Exception APP must be evaluated on the basis of APP, to the exclusion of all other technical parameters, except for ECCN 4A003.e (equipment performing analog-to-digital conversions exceeding the limits in ECCN 3A001.a.5.a). Assemblies performing analog-to-digital conversions are evaluated under Category 3—Electronics, ECCN 3A001.a.5.a.
(2) Related equipment classified under ECCN 4A003.e or .g may be exported or reexported under License Exceptions GBS or CIV. When related equipment is exported or reexported as part of a computer system, NLR or License Exception APP is available for the computer system and the related equipment, as appropriate.
(m)
(n)
(a)
(b)
(c)
(2) U.S.-origin software that is incorporated into or commingled with foreign-origin software does not lose its U.S.-origin. Such commingled software is subject to the EAR is the same manner as the original U.S.-origin software, including license requirements, unless the commingled software is not subject to the EAR by reason of the
(d)
(1)(i)
(B) Can we send an engineer (with knowledge and experience) to the customer site to perform the installation or repair, under the provisions of License Exception TSU for operation technology and software described in § 740.13(a) of the EAR, if it is understood that he is restricted by our normal business practices to performing the work without imparting the knowledge or technology to the customer personnel?
(ii)
(2)(i)
(ii)
(B) Any training beyond that covered under the provisions of License Exception TSU for operation technology and software described in § 740.13(a), but specifically represented in your license application as required for this customer installation, and in fact authorized on the face of the license or a separate technology license, may not be undertaken while the license is suspended or revoked.
50 U.S.C. app. 2401
The following are definitions of terms as used in the Export Administration Regulations (EAR). In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. Those terms in quotation marks refer to terms used on the Commerce Control List (CCL) (Supplement No. 1 to part 774 of the EAR). Parenthetical references following the terms in quotation marks (i.e., (Cat 5)) refer to the CCL category in which that term is found. If a term is used in only one Export Control Classification Number (ECCN) on the CCL, then that term will
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This definition of agricultural commodities includes fertilizer and organic fertilizer, as listed in section 775 of the 2001 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act (Act) (Public Law 106-387) and commodities listed in section 102 of the Agricultural Trade Act of 1978 (7 U.S.C. 5602) as incorporated in section 902 of the Act, as well as commodities determined by the Department of Agriculture to fall within the scope of section 102 of the 1978 Agricultural Trade Act.
For purposes of License Exception AGR (see § 740.18 of the EAR), agricultural commodities also include vitamins, minerals, food additives and dietary supplements, and bottled water. These items do not fall within the scope of section 102 of the 1978 Agricultural Trade Act, but are treated as agricultural commodities for the purposes of License Exception AGR.
For purposes of License Exception AGR and export license applications to Iran and Sudan under the licensing procedures set forth in the appropriate regulations promulgated and administered by Treasury's Office of Foreign Assets Control, agricultural commodities only include those that are classified as EAR99.
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Additional and alternative allocations are not included.
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“APP” See “Adjusted Peak Performance.” This term may also appear without quotation marks.
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(a) Bank, savings association, credit union, bank holding company, bank or savings association service corporation, Edge Act corporation, Agreement corporation, or any insured depository institution, which is organized under the laws of the United States or any State and regulated or supervised by a Federal banking agency or a State bank supervisor; or
(b) A company organized under the laws of a foreign country and regulated or supervised by a foreign bank regulatory or supervisory authority which engages in the business of banking, including without limitation, foreign commercial banks, foreign merchant banks and other foreign institutions that engage in banking activities usual in connection with the business of banking in the countries where such foreign institutions are organized or operating; or
(c) An entity engaged in the business of providing clearing or settlement services, that is, or whose members are, regulated or supervised by a Federal banking agency, a State bank supervisor, or a foreign bank regulatory or supervisory authority; or
(d) A branch or affiliate of any of the entities listed in paragraphs (a), (b), or (c) of this definition, regulated or supervised by a Federal banking agency, a State bank supervisor or a foreign bank regulatory or supervisory authority; or
(e) An affiliate of any of the entities listed in paragraph (a), (b), (c), or (d) of this definition, engaged solely in the business of providing data processing services to a bank or financial institution, or a branch of such an affiliate.
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2. ‘Family’ consists of all integrated circuits to which all of the following are applied as their manufacturing methodology and specifications except their respective functions:
a. The common hardware and software architecture;
b. The common design and process technology;
c. The common basic characteristics.
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(a) A distinct organizational structure which does not overlap with other business units of the same business;
(b) A distinct set of accounts; and
(c) Separate facilities for purchase, sale, delivery, and production of goods and services.
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(a) A natural person who is a citizen of Canada; or
(b) A partnership of which each member is such an individual; or
(c) A Canadian firm incorporated or otherwise organized under the laws of Canada or any Canadian province, having a total foreign stock interest not greater than 40 percent and having the Chairman or Acting Chairman and at least two-thirds of the Directors thereof Canadian citizens.
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1. Cryptanalytic functions may include cryptanalysis, which is the analysis of a cryptographic system or its inputs and outputs to derive confidential variables or sensitive data including clear text. (ISO 7498-2-1988(E), paragraph 3.3.18).
2. Functions specially designed and limited to protect against malicious computer damage or unauthorized system intrusion (e.g., viruses, worms and trojan horses) are not construed to be cryptanalytic functions.
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“Secret parameter”: a constant or key kept from the knowledge of others or shared only within a group.
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When determining the “data signalling rate”, servicing and administrative channels shall be excluded.
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a. A single continuous optical reflecting surface which is dynamically deformed by the application of individual torques or forces to compensate for distortions in the optical waveform incident upon the mirror;
b. Multiple optical reflecting elements that can be individually and dynamically repositioned by the application of torques or forces to compensate for distortions in the optical waveform incident upon the mirror.
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(a) Accept data;
(b) Store data or instructions in fixed or alterable (writable) storage devices;
(c) Process data by means of a stored sequence of instructions that is modifiable; and
(d) Provide output of data.
Modifications of a stored sequence of instructions include replacement of fixed storage devices, but not a physical change in wiring or interconnections.
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This does not include cases of routing decisions taken on predefined information.
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a. For plutonium isotopes and uranium-233, the isotope weight in grams;
b. For uranium enriched 1 percent or greater in the isotope uranium-235, the element weight in grams multiplied by the square of its enrichment expressed as a decimal weight fraction;
c. For uranium enriched below 1 percent in the isotope uranium-235, the element weight in grams multiplied by 0.0001.
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2. ‘Discrete component’: a separately packaged ‘circuit element’ with its own external connections.
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“Active tooling unit”: a device for applying motive power, process energy or sensing to the workpiece.
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(a) Modifying automatically the “source code” introduced by the user;
(b) Providing knowledge linked to a class of problems in quasi-natural language; or
(c) Acquiring the knowledge required for their development (symbolic training).
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(a) Continuous monofilaments;
(b) Continuous yarns and rovings;
(c) Tapes, fabrics, random mats and braids;
(d) Chopped fibers, staple fibers and coherent fiber blankets;
(e) Whiskers, either monocrystalline or polycrystalline, of any length;
(f) Aromatic polyimide pulp.
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“Circuit element”: a single active or passive functional part of an electronic circuit, such as one diode, one transistor, one resistor, one capacitor, etc.
(a) A broker, dealer, government securities broker or dealer, self-regulatory organization, investment company or investment adviser, which is regulated or supervised by the Securities and Exchange Commission or a self-regulatory organization that is registered with the Securities and Exchange Commission; or
(b) A broker, dealer, government securities broker or dealer, investment company, investment adviser, or entity that engages in securities activities that, if conducted in the United States, would be described by the definition of the term “self-regulatory organization” in the Securities Exchange Act of 1934, which is organized under the laws of a foreign country and regulated or supervised by a foreign securities authority; or
(c) A U.S. board of trade that is designated as a contract market by the Commodity Futures Trading Commission or a futures commission merchant that is regulated or supervised by the Commodity Futures Trading Commission; or
(d) A U.S. entity engaged primarily in the business of issuing a general purpose charge, debit, or stored value
(e) A branch or affiliate of any of the entities listed in paragraphs (a), (b), or (c) of this definition regulated or supervised by the Securities and Exchange Commission, the Commodity Futures Trading Commission, or a foreign securities authority; or
(f) An affiliate of any of the entities listed in paragraph (a), (b), (c), or (e), of this definition engaged solely in the business of providing data processing services to one or more bank or financial institutions, or a branch of such an affiliate; or
(g) A company organized and regulated under the laws of any of the United States and its branches and affiliates whose primary and predominant business activity is the writing of insurance or the reinsuring of risks; or a company organized and regulated under the laws of a foreign country and its branches and affiliates whose primary and predominant business activity is the writing of insurance or the reinsuring of risks.
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(a) A “digital computer” including its own “main storage” and its own “related equipment”; and
(b) Two or more of the following:
(1) A machine tool described in 2B001.c;
(2) A dimensional inspection machine described in Category 2, or another digitally controlled measuring machine controlled by an entry in Category 2;
(3) A “robot” controlled by an entry in Category 2 or 8;
(4) Digitally controlled equipment controlled by 1B003, 2B003, or 9B001;
(5) “Stored program controlled” equipment controlled by 3B001;
(6) Digitally controlled equipment controlled by 1B001;
(7) Digitally controlled electronic equipment controlled by 3A002.
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This definition does not include a stack of single detector elements or any two, three, or four element detectors provided time delay and integration is not performed within the element.
(a) National governmental departments operated by government-paid personnel performing governmental administrative functions; e.g. Finance Ministry, Ministry of Defense, Ministry of Health, etc. (municipal or other local government entities must submit required support documentation); or
(b) National government-owned public service entities; e.g., nationally owned railway, postal, telephone, telegraph, broadcasting, and power systems, etc. The term “foreign government agency” does not include government corporations, quasi-government agencies, and state enterprises engaged in commercial, industrial, and manufacturing activities, such as petroleum refineries, mines, steel mills, retail stores, automobile manufacturing plants, airlines, or steamship lines that operate between two or more countries, etc.
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(a) A frequency within 100 Hz of the final frequency; or
(b) An output level within 1 dB of the final output level.
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(a) Accept data;
(b) Process data, in both analog and digital representation; and
(c) Provide output of data.
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(a) Containing at least one unencapsulated device;
(b) Connected together using typical IC-production methods;
(c) Replaceable as an entity; and
(d) Not normally capable of being disassembled.
1. “Circuit element”: a single active or passive functional part of an electronic circuit, such as one diode, one transistor, one resistor, one capacitor, etc.
2. “Discrete component”: a separately packaged “circuit element” with its own external connections.
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“Cryptanalysis”: the analysis of a cryptographic system or its inputs and outputs to derive confidential variables or sensitive data, including clear text. (ISO 7498-2-1988 (E), paragraph 3.3.18)
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(a) Of the reason for BIS's decision to deny a license application; and
(b) That the application will be denied 45 days from the date of the ITD letter, unless the applicant provides, and BIS accepts, a reason why the application should not be denied for the stated reason. See § 750.6 of the EAR.
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(a) Allows an arbitrary number of independent “data devices” to communicate directly with each other; and
(b) Is confined to a geographical area of moderate size (e.g., office building, plant, campus, warehouse).
“Data device”: equipment capable of transmitting or receiving sequences of digital information.
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“MBTR” (bits per second)=B × R × T, where:
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“Solidify rapidly”: solidification of molten material at cooling rates exceeding 1,000 K/sec.
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“Solidify rapidly”: solidification of molten material at cooling rates exceeding 1,000 K/sec.
The “microprocessor microcircuit” normally does not contain integral user-accessible storage, although storage present on-the-chip may be used in performing its logic function.
The internal storage may be augmented by an external storage.
This definition includes chip sets which are designed to operate together to provide the function of a “microprocessor microcircuit.”
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1: The “microprocessor microcircuit” normally does not contain integral user-accessible storage, although storage present on-the-chip may be used in performing its logic function.
N.B. 2: This definition includes chip sets that are designed to operate together to provide the function of a “microprocessor microcircuit”.
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(a) Are formed by means of diffusion processes, implantation processes or deposition processes in or on a single semiconducting piece of material, a so-called 'chip';
(b) Can be considered as indivisibly associated; and
(c) Perform the function(s) of a circuit.
“Circuit element”: a single active or passive functional part of an electronic circuit, such as one diode, one transistor, one resistor, one capacitor, etc.
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(a) Single Instruction Multiple Data (SIMD) architectures such as vector or array processors;
(b) Multiple Single Instruction Multiple Data (MSIMD) architectures;
(c) Multiple Instruction Multiple Data (MIMD) architectures, including those that are tightly coupled, closely coupled or loosely coupled; or
(d) Structured arrays of processing elements, including systolic arrays.
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“Multilevel security” is computer security and not computer reliability that deals with equipment fault prevention or human error prevention in general.
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The particular equipment, subsystems, or components to be included in the
a. Ballistic Missiles
1. “Payload” for systems with separating re-entry vehicles (RVs) includes:
i. The RVs, including:
A. Dedicated guidance, navigation, and control equipment;
B. Dedicated countermeasures equipment;
ii. Munitions of any type (
iii. Supporting structures and deployment mechanisms for the munitions (
iv. Mechanisms and devices for safing, arming, fuzing, or firing;
v. Any other countermeasures equipment (
vi. The bus/post-boost vehicle or attitude control/velocity trim module not including systems/subsystems essential to the operation of other stages.
2. “Payload” for systems with non-separating re-entry vehicles includes:
i. Munitions of any type (
ii. Supporting structures and deployment mechanisms for the munitions that can be removed without violating the structural integrity of the vehicle;
iii. Mechanisms and devices for safing, arming, fuzing or firing;
iv. Any countermeasures equipment (
b. Space Launch Vehicles—“Payload” includes:
1. Satellites (single or multiple);
2. Satellite-to-launch vehicle adapters including, if applicable, apogee/perigee kick motors or similar maneuvering systems;
c. Sounding Rockets—“Payload” includes:
1. Equipment required for a mission, such as data gathering, recording or transmitting devices for mission-specific data;
2. Recovery equipment (
d. Cruise Missiles—“Payload” includes:
1. Munitions of any type (
2. Supporting structures and mechanisms for the munitions that can be removed without violating the structural integrity of the vehicle;
3. Mechanisms and devices for safing, arming, fuzing or firing;
4. Countermeasures equipment (
5. Signature alteration equipment that can be removed without violating the structural integrity of the vehicle;
e. Other UAVs—“Payload” includes:
1. Munitions of any type (
2. Mechanisms and devices for safing, arming, fuzing or firing;
3. Countermeasures equipment (
4. Signature alteration equipment that can be removed without violating the structural integrity of the vehicle;
5. Equipment required for a mission such as data gathering, recording or transmitting devices for mission-specific data;
6. Recovery equipment (
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(a) Test conditions:
(1) For 12 hours before and during measurements, the machine tool and accuracy measuring equipment will be
(2) The machine shall be equipped with any mechanical, electronic, or software compensation to be exported with the machine;
(3) Accuracy of measuring equipment for the measurements shall be at least four times more accurate than the expected machine tool accuracy;
(4) Power supply for slide drives shall be as follows:
(i) Line voltage variation shall exceed ±10% of nominal rated voltage;
(ii) Frequency variation shall not exceed ±2 Hz of normal frequency;
(iii) Lineouts or interrupted service are not permitted.
(b) Test programs:
(1) Feed rate (velocity of slides) during measurement shall be the rapid traverse rate;
In case of machine tools that generate optical quality surfaces, the feedrate shall be equal to or less than 50 mm per minute.
(2) Measurements shall be made in an incremental manner from one limit of the axis travel to the other without returning to the starting position for each move to the target position;
(3) Axes not being measured shall be retained at mid travel during the test of an axis.
(c) Presentation of test results: The results of the measurement must include:
(1) Position accuracy (A); and
(2) The mean reversal error (B).
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Equivalent national standards for executing the “proof test” may be used.
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a. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range.
b. The range for both rocket systems and UAV systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links or other external constraints.
c. For rocket systems, the range will be determined using the trajectory that maximizes range, assuming ICAO standard atmosphere with zero wind.
d. For UAV systems, the range will be determined for a one-way distance using the most fuel-efficient flight profile (
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(a) A stored data product containing a recovery feature that, when activated, allows recovery of the plaintext
(b) A product or system designed such that a network administrator or other authorized persons who are removed from the end-user can provide law enforcement access to plaintext without the knowledge or assistance of the end-user. This includes, for example, products or systems where plaintext exists and is accessible at intermediate points in a network or infrastructure system, enterprise-controlled recovery systems, and products which permit recovery of plaintext at the server where a system administrator controls or can provide recovery of plaintext across an enterprise.
“Plaintext” indicates that data that is initially received by or presented to the recoverable product before encryption takes place.
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(a) The applicant has requested the application be returned;
(b) A License Exception applies;
(c) The items are not under Department of Commerce jurisdiction;
(d) Required documentation has not been submitted with the application; or
(e) The applicant cannot be reached after several attempts to request additional information necessary for processing of the application.
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(a) Is multifunctional;
(b) Is capable of positioning or orienting material, parts, tools or special devices through variable movements in a three dimensional space;
(c) Incorporates three or more closed or open loop servo-devices that may include stepping motors; and
(d) Has “user-accessible programmability” by means of teach/playback method or by means of an
This definition does not include the following devices:
(a) Manipulation mechanisms that are only manually/teleoperator controllable;
(b) Fixed sequence manipulation mechanisms that are automated moving devices, operating according to mechanically fixed programmed motions. The program is mechanically limited by fixed stops, such as pins or cams. The sequence of motions and the selection of paths or angles are not variable or changeable by mechanical, electronic or electrical means;
(c) Mechanically controlled variable sequence manipulation mechanisms that are automated moving devices, operating according to mechanically fixed programmed motions. The program is mechanically limited by fixed, but adjustable stops, such as pins or cams. The sequence of motions and the selection of paths or angles are variable within the fixed program pattern. Variations or modifications of the program pattern (e.g., changes of pins or exchanges of cams) in one or more motion axes are accomplished only through mechanical operations;
(d) Non-servo-controlled variable sequence manipulation mechanisms that are automated moving devices, operating according to mechanically fixed programmed motions. The program is variable, but the sequence proceeds only by the binary signal from mechanically fixed electrical binary devices or adjustable stops;
(e) Stacker cranes defined as Cartesian coordinate manipulator systems manufactured as an integral part of a vertical array of storage bins and designed to access the contents of those bins for storage or retrieval.
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As defined by 10 CFR 110.2 of the Nuclear Regulatory Commission Regulations, “Special fissile material” means: plutonium, uranium-233 or uranium enriched above 0.711 percent by weight in the isotope uranium-235.
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“Solidify rapidly”: solidification of molten material at cooling rates exceeding 1,000 K/sec.
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Equipment may be “stored program controlled” whether the electronic storage is internal or external to the equipment.
(a) Has a business need to share the proprietary information with one or more U.S. companies; and
(b) Is contractually bound to the U.S. company (e.g., has an established pattern of continuing or recurring contractual relations).
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“Discrete component”: a separately packaged “circuit element” with its own external connections.
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The “superconductive” state of a material is individually characterized by a “critical temperature”, a critical magnetic field that is a function of temperature, and a critical current density that is a function of both magnetic field and temperature.
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Technical assistance—May take forms such as instruction, skills training, working knowledge, consulting services.
“Technical assistance” may involve transfer of “technical data”.
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(1) Any individual who is a citizen of the United States, a permanent resident alien of the United States, or a protected individual as defined by 8 U.S.C. 1324b(a)(3);
(2) Any juridical person organized under the laws of the United States or any jurisdiction within the United States, including foreign branches; and
(3) Any person in the United States.
(b)
(a) A foreign branch of a U.S. company; or
(b) A foreign subsidiary or entity of a U.S. entity in which:
(1) The U.S. entity beneficially owns or controls (whether directly or indirectly) 25 percent or more of the voting securities of the foreign subsidiary or entity, if no other persons owns or controls (whether directly or indirectly) an equal or larger percentage; or
(2) The foreign entity is operated by the U.S. entity pursuant to the provisions of an exclusive management contract; or
(3) A majority of the members of the board of directors of the foreign subsidiary or entity also are members of the comparable governing body of the U.S. entity; or
(4) The U.S. entity has the authority to appoint the majority of the members of the board of directors of the foreign subsidiary or entity; or
(5) The U.S. entity has the authority to appoint the chief operating officer of the foreign subsidiary or entity.
(a) An individual who is a citizen of the United States or one of its possessions; or
(b) A partnership of which each member is such an individual; or
(c) A corporation or association created or organized under the laws of the United States, or of any State, Territory, or possession of the United States, of which the president and two-thirds of the board of directors and other managing officers thereof are such individuals and in which at least 75 percent of the voting interest is owned or controlled by persons who are citizens of the United States or of one of its possessions.
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(a) A physical change in wiring or interconnections; or
(b) The setting of function controls including entry of parameters.
(1) Primary coolant pumps;
(2) Fuel charging or discharging machines; and
(3) Control rods.
(b) Utilization facility does not include the steam turbine generator portion of a nuclear power plant.
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At 66 FR 36910, July 16, 2001, § 772.1 was amended by revising the phrase “Cat. 1 and 7” to read “All Categories” in the definition for “
50 U.S.C. app. 2401
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. The Bureau of Industry and Security (BIS) maintains the Commerce Control List (CCL) that includes items (commodities, software, and technology) subject to the authority of BIS. The CCL does not include those items exclusively controlled for export by another department or agency of the U.S. Government. In instances where other agencies administer controls over related items, entries in the CCL will contain a reference to these controls. Those items subject to the EAR but not specified on the CCL are identified by the designator “EAR99”. See § 734.2(a) of the EAR for items that are “subject to the EAR”. You should consult part 738 of the EAR for an explanation of the organization of the CCL and its relationship to the Country Chart.
The CCL is contained in Supplement No. 1 to this part, and Supplement No. 2 to this part contains the General Technology and Software Notes relevant to entries contained in the CCL.
b. Fuel element handling equipment, including reactor fuel charging and discharging machines;
c. Control rods specially designed or prepared for the control of the reaction rate in a “nuclear reactor”, including the neutron absorbing part and the support or suspension structures therefore, and control rod guide tubes;
d. Electronic controls for controlling the power levels in “nuclear reactors”, including reactor control rod drive mechanisms and radiation detection and measuring instruments to determine neutron flux levels;
e. Pressure tubes specially designed or prepared to contain fuel elements and the primary coolant in a “nuclear reactor” at an operating pressure in excess of 5.1 MPa;
f. Tubes or assemblies of tubes, made from zirconium metal or alloy in which the ratio of hafnium to zirconium is less than 1:500 parts by weight, specially designed or prepared for use in a “nuclear reactor”;
g. Coolant pumps specially designed or prepared for circulating the primary coolant of “nuclear reactors”;
h. Internal components specially designed or prepared for the operation of a “nuclear reactor”, including core support structures, thermal shields, baffles, core grid plates and diffuser plates;
i. Heat exchangers.
b. Specially designed components and parts for ammunition, except cartridge cases, powder bags, bullets, jackets, cores, shells, projectiles, boosters, fuses and components, primers, and other detonating devices and ammunition belting and linking machines (all of which are subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls). (See 22 CFR parts 120 through 130);
c. Muzzle loading (black powder) firearms with a caliber less than 20 mm that were manufactured later than 1937 and that are not reproductions of firearms manufactured earlier than 1890;
0A018.c does not control weapons used for hunting or sporting purposes that were not specifically designed for hunting or sporting purposes that were not specially designed for military use and are not of the fully automatic type, but see 0A984 concerning shotguns.
d. Military helmets, except:
d.1. Conventional steel helmets other than those described by 0A018.d.2 of this entry.
d.2. Helmets, made of any material, equipped with communications hardware, optional sights, slewing devices or mechanisms to protect against thermal flash or lasers.
Helmets described in 0A018.d.1 are controlled by 0A988. Helmets described in 0A018.d.2 are controlled by the U.S. Department of State, Directorate of Defense Trade Controls (See 22 CFR part 121, Category X).
b. Bayonets.
Exports from the U.S. and transhipments to Iran must be licensed by the Department of Treasury, Office of Foreign Assets Control. (See § 746.7 of the EAR for additional information on this requirement.)
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT licensing requirements for this entry. See § 742.19 of the EAR for additional information.
b. Reserved.
a.1. Gaseous diffusion separation plant;
a.2. Gas centrifuge separation plant;
a.3. Aerodynamic separation plant;
a.4. Chemical exchange separation plant;
a.5. Ion-exchange separation plant;
a.6. Atomic vapor “laser” isotopic separation plant;
a.7. Molecular “laser” isotopic separation plant;
a.8. Plasma separation plant;
a.9. Electro magnetic separation plant;
b. Equipment and components, specially designed or prepared for gaseous diffusion separation process, as follows:
b.1. Bellow valves made of or protected by materials resistant to UF
b.2.a. Compressors (positive displacement, centrifugal and axial flowtypes) or gas blowers with a suction volume capacity of 1 m
b.2.b. Rotary shaft seals for compressors or blowers specified in 0B001.b.2.a. and designed for a buffer gas in-leakage rate of less than 1,000 cm
b.3. Gaseous diffusion barriers made of porous metallic, polymer or ceramic materials resistant to corrosion by UF
b.4. Gaseous diffuser housings made of or protected by materials resistant to corrosion by UF
b.5. Heat exchangers made of aluminum, copper, nickel, or alloys containing more than 60 weight percent nickel, or combinations of these metals as clad tubes, designed to operate at sub-atmospheric pressure with a leak rate that limits the pressure rise to less than 10 Pa per hour under a pressure differential of 100 kPa;
c. Equipment and components, specially designed or prepared for gas centrifuge separation process, as follows:
c.1. Gas centrifuges;
c.2. Complete rotor assemblies consisting of one or more rotor tube cylinders;
c.3. Rotor tube cylinders with a thickness of 12 mm or less, a diameter of between 75 mm and 400 mm, made from any of the following high strength-to-density ratio materials:
c.3.a. Maraging steel capable of an ultimate tensile strength of 2,050 MPa or more;
c.3.b. Aluminum alloys capable of an ultimate tensile strength of 460 MPa or more;
c.3.c. “Fibrous or filamentary materials” with a “specific modulus” of more than 3.18 × 10
c.4. Magnetic suspension bearings consisting of an annular magnet suspended within a housing made of UF
c.5. Specially prepared bearings comprising a pivot-cup assembly mounted on a damper;
c.6. Rings or bellows with a wall thickness of 3 mm or less and a diameter of between 75 mm and 400 mm and designed to give local support to a rotor tube or to join a number together, made from any of the following high strength-to-density ratio materials;
c.6.a. Maraging steel capable of an ultimate tensile strength of 2050 MPa or more;
c.6.b. Aluminum alloys capable of an ultimate tensile strength of 460 MPa or more;
c.6.c. “Fibrous or filamentary materials” with a “specific modulus” of more than 3.18 × 10
c.7. Baffles of between 75 mm and 400 mm diameter for mounting inside a rotor tube,
c.7.a. Maraging steel capable of an ultimate tensile strength of 2050 MPa or more;
c.7.b. Aluminum alloys capable of an ultimate tensile strength of 460 MPa or more;
c.7.c. “Fibrous or filamentary materials” with a “specific modulus” of more than 3.18 × 10
c.8. Top and bottom caps of between 75 mm and 400 mm diameter to fit the ends of a rotor tube, made from any of the following high strength-to-density ratio materials:
c.8.a. Maraging steel capable of an ultimate tensile strength of 2050 MPa or more;
c.8.b. Aluminum alloys capable of an ultimate tensile strength of 460 MPa or more;
c.8.c. “Fibrous or filamentary materials” with a “specific modulus” of more than 3.18 × 10
c.9. Molecular pumps comprised of cylinders having internally machined or extruded helical grooves and internally machined bores;
c.10. Ring-shaped motor stators for multiphase AC hysteresis (or reluctance) motors for synchronous operation within a vacuum in the frequency range of 600 to 2,000 Hz and a power range of 50 to 1,000 Volt-Amps;
c.11. Frequency changers (converters or inverters) specially designed or prepared to supply motor stators for gas centrifuge enrichment, having all of the following characteristics, and specially designed components therefor:
c.11.a. Multiphase output of 600 to 2000 Hz;
c.11.b. Frequency control better than 0.1%;
c.11.c. Harmonic distortion of less than 2%;
c.11.d. An efficiency greater than 80%;
c.12. Centrifuge housing/recipients to contain the rotor tube assembly of a gas centrifuge, consisting of a rigid cylinder of wall thickness up to 30 mm with precision machined ends and made of or protected by UF
c.13. Scoops consisting of tubes of up to 12 mm internal diameter for the extraction of UF
d. Equipment and components, specially designed or prepared for aerodynamic separation process, as follows:
d.1. Separation nozzles consisting of slit-shaped, curved channels having a radius of curvature less than 1 mm and having a knife-edge contained within the nozzle which separates the gas flowing through the nozzle into two streams;
d.2. Tangential inlet flow-driven cylindrical or conical tubes (vortex tubes), made of or protected by UF
d.3. Compressors (positive displacement, centrifugal and axial flow types) or gas blowers with a suction volume capacity of 2 m
d.4. Aerodynamic separation element housings, made of or protected by materials resistant to UF
d.5. Heat exchangers made of aluminum, copper, nickel, or alloy containing more than 60 weight percent nickel, or combinations of these metals as clad tubes, designed to operate at pressures of 600 kPa or less;
d.6. Bellows valves made of or protected by UF
d.7. Process systems for separating UF
d.7.a. Cryogenic heat exchangers and cryoseparators capable of temperatures of −120° C or less;
d.7.b. Cryogenic refrigeration units capable of temperatures of −120° C or less;
d.7.c. Separation nozzle or vortex tube units for the separation of UF
d.7.d. UF
e. Equipment and components, specially designed or prepared for chemical exchange separation process, as follows:
e.1. Fast-exchange liquid-liquid centrifugal contactors with stage residence time of 30 seconds or less and resistant to concentrated hydrochloric acid (e.g., made of or lined with suitable plastic materials such as fluorocarbon polymers or lined with glass);
e.2. Fast-exchange liquid-liquid pulse columns with stage residence time of 30 seconds or less and resistant to concentrated hydrochloric acid (e.g., made of or lined with suitable plastic materials such as fluorocarbon polymers or lined with glass);
e.3. Electrochemical reduction cells designed to reduce uranium from one valence state to another;
e.4. Electrochemical reduction cells feed equipment to take U
e.5. Feed preparation systems for producing high purity uranium chloride solution consisting of dissolution, solvent extraction and/or ion exchange equipment for purification and electrolytic cells for reducing the uranium U
e.6. Uranium oxidation systems for oxidation of U
f. Equipment and components, specially designed or prepared for ion-exchange separation process, as follows:
f.1. Fast reacting ion-exchange resins, pellicular or porous macro-reticulated resins in which the active chemical exchange groups are limited to a coating on the surface of an inactive porous support structure, and other composite structures in any suitable form, including particles or fibers, with diameters of 0.2 mm or less, resistant to concentrated hydrochloric acid and designed to have an exchange rate half-time of less than 10 seconds and capable of operating at temperatures in the range of 100° C to 200° C;
f.2. Ion exchange columns (cylindrical) with a diameter greater than 1000 mm, made of or protected by materials resistant to concentrated hydrochloric acid (e.g., titanium or fluorocarbon plastics) and capable of operating at temperatures in the range of 100° C to 200° C and pressures above 0.7 MPa;
f.3. Ion exchange reflux systems (chemical or electrochemical oxidation or reduction systems) for regeneration of the chemical reducing or oxidizing agents used in ion exchange enrichment cascades;
g. Equipment and components, specially designed or prepared for atomic vapor “laser” isotopic separation process, as follows:
g.1. High power electron beam guns with total power of more than 50 kW and strip or scanning electron beam guns with a delivered power of more than 2.5 kW/cm for use in uranium vaporization systems;
g.2. Trough shaped crucibles and cooling equipment made of or protected by materials resistant to heat and corrosion of molten uranium or uranium alloy's (e.g., tantalum, yttria-coated graphite, graphite coated with other rare earth oxides or mixtures thereof);
N.B: See also 2A225.
g.3. Product and tails collector systems made of or lined with materials resistant to the heat and corrosion of uranium vapor, such as yttria-coated graphite or tantalum;
g.4. Separator module housings (cylindrical or rectangular vessels) for containing the uranium metal vapor source, the electron beam gun and the product and tails collectors;
g.5. “Lasers” or “laser” systems for the separation of uranium isotopes with a spectrum frequency stabilizer for operation over extended periods of time;
N.B.: See also 6A005 and 6A205.
h. Equipment and components, specially designed or prepared for molecular “laser” isotopic separation process, as follows:
h.1. Supersonic expansion nozzles for cooling mixtures of UF
h.2. Uranium fluoride (UF
h.3. Equipment for fluorinating UF
h.4. Compressors made of or protected by materials resistant to UF
h.5. Process systems for separating UF
h.5.a. Cryogenic heat exchangers and cryoseparators capable of temperatures of −120 °C or less;
h.5.b. Cryogenic refrigeration units capable of temperatures of −120 °C or less;
h.5.c. UF6 cold traps capable of temperatures of −20 °C or less;
h.6. “Lasers” or “laser” systems for the separation of uranium isotopes with a spectrum frequency stabilizer for operation over extended periods of time;
N.B.: See also 6A005 and 6A205.
i. Equipment and components, specially designed or prepared for plasma separation process, as follows:
i.1. Product and tails collectors made of or protected by materials resistant to the heat and corrosion of uranium vapor such as yttria-coated graphite or tantalum;
i.2. Radio frequency ion excitation coils for frequencies of more than 100 kHz and capable of handling more than 40 kW mean power;
i.3. Microwave power sources and antennae for producing or accelerating ions, with an output frequency greater than 30 GHz and mean power output greater than 50 kW;
i.4. Uranium plasma generation systems;
i.5. Liquid uranium metal handling systems consisting of crucibles, made of or protected by suitable corrosion and heat resistant materials (e.g., tantalum, yttria-coated graphite, graphite coated with other rare earth oxides or mixtures thereof), and cooling equipment for the crucibles;
N.B.: See also 2A225.
i.6. Separator module housings (cylindrical) for containing the uranium plasma source, radio-frequency drive coil and the product and tails collectors and made of a suitable non-magnetic material (e.g. stainless steel);
j. Equipment and components, specially designed or prepared for electromagnetic separation process, as follows:
j.1. Ion sources, single or multiple, consisting of a vapor source, ionizer, and beam accelerator made of suitable materials (e.g.,
j.2. Ion collector plates for collection of enriched or depleted uranium ion beams, consisting of two or more slits and pockets and made of suitable non-magnetic materials (e.g., graphite or stainless steel);
j.3. Vacuum housings for uranium electromagnetic separators made of non-magnetic materials (e.g. graphite or stainless steel) and designed to operate at pressures of 0.1 Pa or lower;
j.4. Magnet pole pieces with a diameter greater than 2 m;
j.5. High voltage power supplies for ion sources, having all of the following characteristics:
j.5.a. Capable of continuous operation;
j.5.b. Output voltage of 20,000 V or greater;
j.5.c. Output current of 1 A or greater;
j.5.d. Voltage regulation of better than 0.01% over a period of 8 hours;
N.B.: See also 3A227.
j.6. Magnet power supplies (high power, direct current) having all of the following characteristics:
j.6.a. Capable of continuous operation with a current output of 500 A or greater at a voltage of 100 V or greater;
j.6.b. Current or voltage regulation better than 0.01% over a period of 8 hours.
N.B.: See also 3A226.
b. Desublimers or cold traps, used to remove UF
c. Product and tails stations for transferring UF
d. Liquefaction or solidification stations used to remove UF
e. Piping systems and header systems specially designed for handling UF
f.1. Vacuum manifolds or vacuum headers having a suction capacity of 5 m
f.2. Vacuum pumps specially designed for use in UF
g. UF
g.1. Unit resolution for mass of more than 320 amu;
g.2. Ion sources constructed of or lined with nichrome or monel, or nickel plated;
g.3. Electron bombardment ionization sources; and
g.4. Collector system suitable for isotopic analysis.
Items described in 0B003 are subject to the export licensing authority of the Nuclear Regulatory Commission (see 10 CFR part 110).
b. Systems for the conversion of UO
c. Systems for the conversion of UO
d. Systems for the conversion of UO
e. Systems for the conversion of UF
f. Systems for the conversion of UF
g. Systems for the conversion of UF
h. Systems for the conversion of UF
i. Systems for the conversion of UO
a.1. Hydrogen sulphide-water exchange plants;
a.2. Ammonia-hydrogen exchange plants;
a.3. Hydrogen distillation plants;
b. Equipment and components, as follows, designed for:
b.1. Hydrogen sulphide-water exchange process:
b.1.a. Tray exchange towers;
b.1.b. Hydrogen sulphide gas compressors;
b.2. Ammonia-hydrogen exchange process:
b.2.a. High-pressure ammonia-hydrogen exchange towers;
b.2.b. High-efficiency stage contactors;
b.2.c. Submersible stage recirculation pumps;
b.2.d. Ammonia crackers designed for pressures of more than 3 MPa;
b.3. Hydrogen distillation process:
b.3.a. Hydrogen cryogenic distillation towers and cold boxes designed for operation below 35 K (−238° C);
b.3.b. Turboexpanders or turboexpander-compressor sets designed for operation below 35 K (−238° C);
b.4. Heavy water concentration process to reactor grade level (99.75 weight percent deuterium oxide):
b.4.a. Water distillation towers containing specially designed packings;
b.4.b. Ammonia distillation towers containing specially designed packings;
b.4.c. Catalytic burners for conversion of fully enriched deuterium to heavy water;
b.4.d. Infrared absorption analyzers capable of on-line hydrogen-deuterium ratio analysis where deuterium concentrations are equal to or more than 90 weight percent.
b. Dissolvers, critically safe tanks (e.g. small diameter, annular or slab tanks) specially designed or prepared for the dissolution of irradiated “nuclear reactor” fuel, which are capable of withstanding hot, highly corrosive liquids, and which can be remotely loaded and maintained;
c. Counter-current solvent extractors and ion-exchange processing equipment specially designed or prepared for use in a plant for the reprocessing of irradiated “natural uranium”, “depleted uranium” or “special fissile materials” and “other fissile materials”;
d. Process control instrumentation specially designed or prepared for monitoring or controlling the reprocessing of irradiated “natural uranium”, “depleted uranium” or “special fissile materials” and “other fissile materials”;
e. Holding or storage vessels specially designed to be critically safe and resistant to the corrosive effects of nitric acid;
Critically safe tanks may have the following features:
1. Walls or internal structures with a boron equivalent of at least two percent;
2. A maximum diameter or 175 mm for cylindrical vessels; or
3. A maximum width of 75 mm for either a slab or annular vessel.
f. Complete systems specially designed or prepared for the conversion of plutonium nitrate to plutonium oxide;
g. Complete systems specially designed or prepared for the production of plutonium metal.
Plant for the reprocessing of irradiated “nuclear reactor” fuel elements includes equipment and components which normally come into direct contact with and directly control the irradiated fuel and the major nuclear material and fission product processing streams.
UN applies to entire entry. A license is required for items controlled by this entry to Iraq and Rwanda. The Commerce Country Chart is not designed to determine licensing requirements for this entry.
b. Glove boxes suitable for use with radioactive materials.
b. Porous nickel metal produced from materials specified in 0C006.a.
“Software” for items described in 0A001, 0B001, 0B002, 0B003, 0B004, 0B005, 0B006, 0C001, 0C002, 0C004, 0C005, 0C006, or 0C201 is subject to the export licensing authority of the Nuclear Regulatory Commission (
“Software” for items described in 0A002 is subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls (
a. Software for neutronic calculations/modeling;
b. Software for radiation transport calculations/modeling;
c. Software for hydrodynamic calculations/modeling.
“Technology” for items described in 0A001, 0B001, 0B002, 0B003, 0B004, 0B005, 0B006, 0C001, 0C002, 0C004, 0C005, 0C006, 0C201, or 0D001 (applies to “software” in 0D001 for all items except those described in 0A002) is subject to the export licensing authority of the Department of Energy (see 10 CFR part 810).
“Technology” for items described in 0A002 and 0D001 (applies to “software” in 0D001 for items described in 0A002 only) is subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls (see 22 CFR part 121).
The list of items controlled is contained in the ECCN heading.
b. Piezoelectric polymers and copolymers made from vinylidene fluoride materials controlled by 1C009.a:
b.1. In sheet or film form;
b.2. With a thickness exceeding 200 µm
c. Seals, gaskets, valve seats, bladders or diaphragms made from fluoroelastomers containing at least one vinylether group as a constitutional unit, specially designed for “aircraft”, aerospace or missile use.
License Requirement Notes:
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
1A002.a does not control finished or semifinished items specially designed for purely civilian applications as follows:
a. Sporting goods;
b. Automotive industry;
c. Machine tool industry; and
d. Medical applications.
b. A metal or carbon “matrix” and made from:
b.1. Carbon “fibrous or filamentary materials” with:
b.1.a. A “specific modulus” exceeding 10.15 × 10
b.1.b. A “specific tensile strength” exceeding 17.7 × 10
b.2. Materials controlled by 1C010.c.
1A002.b does not control finished or semifinished items specially designed for purely civilian applications as follows:
a. Sporting goods;
b. Automotive industry;
c. Machine tool industry; and
d. Medical applications.
(1) Specific modulus: Young's modulus in pascals, equivalent to N/m
1A002 does not control composite structures or laminates made from epoxy resin impregnated carbon “fibrous or filamentary materials” for the repair of aircraft structures of laminates, provided that the size does not exceed one square meter (1 m
b. Coated or laminated with carbon, graphite, metals or magnetic substances
b. Protective suits, gloves and shoes specially designed or modified for defense against biological agents or radioactive materials adapted for use in war or chemical warfare (CW) agents;
c. Nuclear, biological and chemical (NBC) detection systems specially designed or modified for detection or identification of biological agents or radioactive materials adapted for use in war or chemical warfare (CW) agents and specially designed components therefor.
In this entry, the phrase “adapted for use in war” means: Any modification or selection (such as altering purity, shelf life, virulence, dissemination characteristics, or resistance to UV radiation) designed to increase the effectiveness in producing casualties in humans or animals, degrading equipment or damaging crops or the environment.
1A004 does not control:
a. Personal radiation monitoring dosimeters;
b. Equipment limited by design or function to protect against hazards specific to civil
Protective equipment and components are classified as 1A004 if they have been tested and proven effective against penetration of BW/CW agents or their simulants using test protocols published by a U.S. Government Agency, such as the National Institute of Occupational Safety and Health (NIOSH) or the U.S. Army, for use by emergency responders or evacuees in chemical, biological, radiological or nuclear environments and labeled with or otherwise identified by the manufacturer or exporter as being effective against penetration by BW/CW agents even if such equipment or components are used in civil industries such as mining, quarrying, agriculture, pharmaceuticals, medical, veterinary, environmental, waste management, or the food industry.
1. This entry does not control body armor or protective garments when accompanying their user for the user's own personal protection.
2. This entry does not control body armor designed to provide frontal protection only from both fragment and blast from non-military explosive devices.
b. Made with any of the “fibrous or filamentary materials” specified in 1C010.a or .b
b. Designed to be used in vacuum distillation towers.
b. A density greater than 3 g/cm
c. A thickness of 100 mm or greater.
b. Equipment limited by design or function to protect against hazards specific to civil industries, such as mining, quarrying, agriculture, pharmaceuticals, medical, veterinary, environmental, waste management, or to the food industry.
This entry (1A995) does not control items for protection against chemical or biological agents that are consumer goods, packaged for retail sale or personal use, or medical products, such as latex exam gloves, latex surgical gloves, liquid disinfectant soap, disposable surgical drapes, surgical gowns, surgical foot covers, and surgical masks. Such items are classified as EAR99.
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT licensing requirements for this entry. See § 742.19 of the EAR for additional information.
b. Radiographic detection equipment such as x-ray converters, and storage phosphor image plates.
b. Tape-laying or tow-placement machines of which the motions for positioning and laying tape, tows or sheets are coordinated and programmed in two or more axes, specially designed for the manufacture of “composite” airframe or “missile” structures;
c. Multidirectional, multidimensional weaving machines or interlacing machines, including adapters and modification kits, for weaving, interlacing or braiding fibers to manufacture “composite” structures;
For the purposes of 1B001.c the technique of interlacing includes knitting.
1B001.c does not control textile machinery not modified for the above end-uses.
d. Equipment specially designed or adapted for the production of reinforcement fibers, as follows:
d.1. Equipment for converting polymeric fibers (such as polyacrylonitrile, rayon, pitch or polycarbosilane) into carbon fibers or silicon carbide fibers, including special equipment to strain the fiber during heating;
d.2. Equipment for the chemical vapor deposition of elements or compounds on heated filamentary substrates to manufacture silicon carbide fibers;
d.3. Equipment for the wet-spinning of refractory ceramics (such as aluminum oxide);
d.4. Equipment for converting aluminum containing precursor fibers into alumina fibers by heat treatment;
e. Equipment for producing prepregs controlled by 1C010.e by the hot melt method;
f. Non-destructive inspection equipment capable of inspecting defects three dimensionally, using ultrasonic or X-ray tomography and specially designed for “composite” materials.
b. “Aircraft” or aerospace engines;
c. Specially designed components for those structures or engines.
a.1. Complete installations;
a.2. Specialized components (for example, dehydration presses; extrusion presses for the extrusion of small arms, cannon and rocket propellants; cutting machines for the sizing of extruded propellants; sweetie barrels (tumblers) 6 feet and over in diameter and having over 500 pounds product capacity; and continuous mixers for solid propellants); or
a.3. Nitrators, continuous types; and
a.4. Specially designed parts and accessories therefor.
b. Environmental chambers capable of pressures below (10
b. Tape-laying machines of which the motions for positioning and laying tape and sheets can be coordinated and programmed in two or more axes, designed for the manufacture of composite airframe and “missile” structures;
c. Equipment designed or modified for the “production” of “fibrous or filamentary materials” as follows:
c.1. Equipment for converting polymeric fibers (such as polyacrylonitrile, rayon or polycarbosilane) including special provision to strain the fiber during heating;
c.2. Equipment for the vapor deposition of elements or compounds on heated filament substrates; and
c.3. Equipment for the wet-spinning of refractory ceramics (such as aluminum oxide);
d. Equipment designed or modified for special fiber surface treatment or for producing prepregs and preforms controlled by 9A110.
Equipment covered in 1B101.d includes but is not limited to, rollers, tension stretchers, coating equipment, cutting equipment and clicker dies.
b. Specially designed components for “production equipment” specified in 1B002 or 1B102.a.
1B102 includes:
a. Plasma generators (high frequency arc-jet) usable for obtaining sputtered or spherical metallic powders with organization of the process in an argon-water environment;
b. Electroburst equipment usable for obtaining sputtered or spherical metallic powders with organization of the process in an argon-water environment;
c. Equipment usable for the “production” of spherical aluminum powders by powdering a melt in an inert medium (
b. “Production equipment,” for the production, handling, mixing, curing, casting, pressing, machining, extruding or acceptance testing of solid propellants or propellant constituents described in 1C011.a, 1C011.b or 1C111, or on the U.S. Munitions List.
1B115.b does not control batch mixers, continuous mixers or fluid energy mills. For the control of batch mixers, continuous mixers and fluid energy mills see 1B117, 1B118, and 1B119.
[Reserved]
1B115 does not control equipment for the “production,” handling and acceptance testing of boron carbide.
b. At least one mixing/kneading shaft mounted off center.
b. A single rotating shaft which oscillates and has kneading teeth/pins on the shaft as well as inside the casing of the mixing chamber.
a.1. Having motions for positioning, wrapping, and winding fibers coordinated and programmed in two or more axes;
a.2. Specially designed to fabricate composite structures or laminates from “fibrous or filamentary materials”;
a.3. Capable of winding cylindrical rotors of diameter between 75 mm (3 in.) and 400 mm (16 in.) and lengths of 600 mm (24 in.) or greater;
b. Coordinating and programming controls for filament winding machines controlled by 1B201.a;
c. Precision mandrels for filament winding machines controlled by 1B201.a.
b. Designed to operate at an internal pressure of 0.5 to 5 MPa (5 to 50 atmospheres);
c. Constructed of “fine-grain stainless steels” of the 300 series with low sulphur content or equivalent cryogenic and H
d. With internal diameters of 1 m or greater and effective lengths of 5 m or greater.
a.1. Can operate at pressures of 2 MPa or greater;
a.2. Constructed of carbon steel having an austenitic ASTM (or equivalent standard) grain size number of 5 or greater;
a.3. With a diameter of 1.8 m (6 ft.) or greater;
b. “Internal contactors” for the water-hydrogen sulphide exchange tray columns controlled by 1B229.a.
b. A capacity greater than 8.5 m
c. Either of the following characteristics:
c.1. For concentrated potassium amide solutions (1% or greater), an operating pressure of 1.5 to 60 MPa (15-600 atmospheres);
c.2. For dilute potassium amide solutions (less than 1%), an operating pressure of 20 to 60 MPa (200-600 atmospheres).
b. Equipment for tritium facilities or plant, as follows:
b.1. Hydrogen or helium refrigeration units capable of cooling to 23 K (−250 C) or less, with heat removal capacity greater than 150 watts;
b.2. Hydrogen isotope storage and purification systems using metal hydrides as the storage, or purification medium.
b. Designed for a throughput of hydrogen gas of 1,000 kg/h or greater.
b. Equipment for the separation of lithium isotopes, as follows:
b.1. Packed liquid-liquid exchange columns specially designed for lithium amalgams;
b.2. Mercury and/or lithium amalgam pumps;
b.3. Lithium amalgam electrolysis cells;
b.4. Evaporators for concentrated lithium hydroxide solution.
b. Particle accelerators;
c. Industrial process control hardware/systems designed for power industries, n.e.s.;
d. Freon and chilled water cooling systems capable of continuous cooling duties of 100,000 BTU/hr (29.3 kW) or greater;
e. Equipment for the production of structural composites, fibers, prepregs and preforms, n.e.s.
Metals and alloys: Unless provision to the contrary is made, the words “metals” and “alloys” in 1C001 to 1C012 cover crude and semi-fabricated forms, as follows:
Crude forms: Anodes, balls, bars (including notched bars and wire bars), billets, blocks, blooms, brickets, cakes, cathodes, crystals, cubes, dice, grains, granules, ingots, lumps, pellets, pigs, powder, rondelles, shot, slabs, slugs, sponge, sticks;
Semi-fabricated forms (whether or not coated, plated, drilled or punched):
a. Wrought or worked materials fabricated by rolling, drawing, extruding, forging, impact extruding, pressing, graining, atomizing, and grinding, i.e.: angles, channels, circles, discs, dust, flakes, foils and leaf, forging, plate, powder, pressings and stampings, ribbons, rings, rods (including bare welding rods, wire rods, and rolled wire), sections, shapes, sheets, strip, pipe and tubes (including tube rounds, squares, and hollows), drawn or extruded wire;
b. Cast material produced by casting in sand, die, metal, plaster or other types of molds, including high pressure castings, sintered forms, and forms made by powder metallurgy.
The object of the control should not be defeated by the export of non-listed forms alleged to be finished products but representing in reality crude forms or semi-fabricated forms.
1C001.a does not control:
a. Hair type absorbers, constructed of natural or synthetic fibers, with non-magnetic loading to provide absorption;
b. Absorbers having no magnetic loss and whose incident surface is non-planar in shape, including pyramids, cones, wedges and convoluted surfaces;
c. Planar absorbers, having all of the following characteristics:
1. Made from any of the following:
a. Plastic foam materials (flexible or non-flexible) with carbon-loading, or organic materials, including binders, providing more than 5% echo compared with metal over a bandwidth exceeding ±15% of the center frequency of the incident energy, and not capable of withstanding temperatures exceeding 450 K (177 °C);
b. Ceramic materials providing more than 20% echo compared with metal over a bandwidth exceeding ±15% of the center frequency of the incident energy, and not capable of withstanding temperatures exceeding 800 K (527 °C);
2. Tensile strength less than 7×10
3. Compressive strength less than 14×10
d. Planar absorbers made of sintered ferrite, having:
1. A specific gravity exceeding 4.4;
2. A maximum operating temperature of 548 K (275 °C).
Nothing in Note 1 releases magnetic materials to provide absorption when contained in paint.
b. Materials for absorbing frequencies exceeding 1.5×10
c. Intrinsically conductive polymeric materials with a bulk electrical conductivity exceeding 10,000 S/m (Siemens per meter) or a sheet (surface) resistivity of less than 100 ohms/square, based on any of the following polymers:
c.1. Polyaniline;
c.2. Polypyrrole;
c.3. Polythiophene;
c.4. Poly phenylene-vinylene;
c.5. Poly thienylene-vinylene.
Bulk electrical conductivity and sheet (surface) resistivity should be determined using ASTM D-257 or national equivalents.
1C002 does not control metal alloys, metal alloy powder or alloyed materials for coating substrates.
The metal alloys in 1C002 are those containing a higher percentage by weight of the stated metal than of any other element.
Stress-rupture life should be measured in accordance with ASTM standard E-139 or national equivalents.
Low cycle fatigue life should be measured in accordance with ASTM Standard E-606 “Recommended Practice for Constant-Amplitude Low-Cycle Fatigue Testing” or national equivalents. Testing should be axial with an average stress ratio equal to 1 and a stress-concentration factor (K
a. Aluminides, as follows:
a.1. Nickel aluminides containing a minimum of 15 weight percent aluminum, a maximum of 38 weight percent aluminum and at least one additional alloying element;
a.2. Titanium aluminides containing 10 weight percent or more aluminum and at least one additional alloying element;
b. Metal alloys, as follows, made from material controlled by 1C002.c:
b.1. Nickel alloys with:
b.1.a. A stress-rupture life of 10,000 hours or longer at 923 K (650 °C) at a stress of 676 MPa; or
b.1.b. A low cycle fatigue life of 10,000 cycles or more at 823 K (550 °C) at a maximum stress of 1,095 MPa;
b.2. Niobium alloys with:
b.2.a. A stress-rupture life of 10,000 hours or longer at 1,073 K (800 °C) at a stress of 400 MPa; or
b.2.b. A low cycle fatigue life of 10,000 cycles or more at 973 K (700 °C) at a maximum stress of 700 MPa;
b.3. Titanium alloys with:
b.3.a. A stress-rupture life of 10,000 hours or longer at 723 K (450 °C) at a stress of 200 MPa; or
b.3.b. A low cycle fatigue life of 10,000 cycles or more at 723 K (450 °C) at a maximum stress of 400 MPa;
b.4 Aluminum alloys with a tensile strength of:
b.4.a. 240 MPa or more at 473 K (200 °C); or
b.4.b. 415 MPa or more at 298 K (25 °C);
b.5. Magnesium alloys with:
b.5.a. A tensile strength of 345 MPa or more; and
b.5.b. A corrosion rate of less than 1 mm/year in 3% sodium chloride aqueous solution measured in accordance with ASTM standard G-31 or national equivalents;
c. Metal alloy powder or particulate material, having all of the following characteristics:
c.1. Made from any of the following composition systems:
X in the following equals one or more alloying elements.
c.1.a. Nickel alloys (Ni-Al-X, Ni-X-Al) qualified for turbine engine parts or components, i.e. with less than 3 non-metallic particles (introduced during the manufacturing process) larger than 100 μ in 10
c.1.b. Niobium alloys (Nb-Al-X or Nb-X-Al, Nb-Si-X or Nb-X-Si, Nb-Ti-X or Nb-X-Ti);
c.1.c. Titanium alloys (Ti-Al-X or Ti-X-Al);
c.1.d. Aluminum alloys (Al-Mg-X or Al-X-Mg, Al-Zn-X or Al-X-Zn, Al-Fe-X or Al-X-Fe); or
c.1.e. Magnesium alloys (Mg-Al-X or Mg-X-Al); and
c.2. Made in a controlled environment by any of the following processes:
c.2.a. “Vacuum atomization”;
c.2.b. “Gas atomization”;
c.2.c. “Rotary atomization”;
c.2.d. “Splat quenching”;
c.2.e. “Melt spinning” and “comminution”;
c.2.f. “Melt extraction” and “comminution”; or
c.2.g. “Mechanical alloying”;
d. Alloyed materials, having all the following characteristics:
d.1. Made from any of the composition systems specified in 1C002.c.1;
d.2. In the form of uncomminuted flakes, ribbons or thin rods;
d.3. Produced in a controlled environment by any of the following:
d.3.a. “Splat quenching”;
d.3.b. “Melt spinning”; or
d.3.c. “Melt extraction”.
Measurement of initial permeability must be performed on fully annealed materials.
b. Magnetostrictive alloys, having any of the following characteristics:
b.1. A saturation magnetostriction of more than 5 × 10
b.2. A magnetomechanical coupling factor (k) of more than 0.8;
c. Amorphous or nanocrystalline alloy strips, having all of the following characteristics:
c.1. A composition having a minimum of 75 weight percent of iron, cobalt or nickel;
c.2. A saturation magnetic induction (B
c.3. Any of the following:
c.3.a. A strip thickness of 0.02 mm or less;
c.3.b. An electrical resistivity of 2 × 10
Nanocrystalline materials in 1C003.c are those materials having a crystal grain size of 50 nm or less, as determined by X-ray diffraction.
b. An elastic limit exceeding 880 MPa;
c. An ultimate tensile strength exceeding 1,270 MPa;
d. An elongation exceeding 8%.
a.1. Embedded in a “matrix” other than a copper or copper-based mixed “matrix”;
a.2. Having a cross-section area less than 0.28 × 10
b. “Superconductive” “composite” conductors consisting of one or more “superconductive” filaments other than niobium-titanium, having all of the following:
b.1. A “critical temperature” at zero magnetic induction exceeding 9.85 K (−263.31° C) but less than 24 K (−249.16° C);
b.2. A cross-section area less than 0.28 × 10
b.3. Remaining in the “superconductive” state at a temperature of 4.2 K (−268.96° C) when exposed to a magnetic field corresponding to a magnetic induction of 12 T.
a.1. Synthetic silahydrocarbon oils, having all of the following:
For the purpose of 1C006.a.1, silahydrocarbon oils contain exclusively silicon, hydrogen and carbon.
a.1.a. A flash point exceeding 477 K (204 °C);
a.1.b. A pour point at 239 K (−34 °C) or less;
a.1.c. A viscosity index of 75 or more;
a.1.d. A thermal stability at 616 K (343 °C); or
a.2. Chlorofluorocarbons, having all of the following:
For the purpose of 1C006.a.2, chlorofluorocarbons contain exclusively carbon, fluorine and chlorine.
a.2.a. No flash point;
a.2.b. An autogenous ignition temperature exceeding 977 K (704 °C);
a.2.c. A pour point at 219 K (−54 °C) or less;
a.2.d. A viscosity index of 80 or more;
a.2.e. A boiling point at 473 K (200 °C) or higher;
b. Lubricating materials containing, as their principal ingredients, any of the following compounds or materials:
b.1. Phenylene or alkylphenylene ethers or thio-ethers, or their mixtures, containing more than two ether or thio-ether functions or mixtures thereof;
b.2. Fluorinated silicone fluids with a kinematic viscosity of less than 5,000 mm
c. Damping or flotation fluids with a purity exceeding 99.8%, containing less than 25 particles of 200 µm or larger in size per 100 ml and made from at least 85% of any of the following compounds or materials:
c.1. Dibromotetrafluoroethane;
c.2. Polychlorotrifluoroethylene (oily and waxy modifications only);
c.3. Polybromotrifluoroethylene;
d. Fluorocarbon electronic cooling fluids, having all of the following characteristics:
d.1. Containing 85% by weight or more of any of the following, or mixtures thereof:
d.1.a. Monomeric forms of perfluoropolyalkylether-triazines or perfluoroaliphatic-ethers;
d.1.b. Perfluoroalkylamines;
d.1.c. Perfluorocycloalkanes;
d.1.d. Perfluoroalkanes;
d.2. Density at 298 K (25 °C) of 1.5 g/ml or more;
d.3. In a liquid state at 273 K (0 °C);
d.4. Containing 60% or more by weight of fluorine.
For the purpose of 1C006:
a. Flash point is determined using the Cleveland Open Cup Method described in ASTM D-92 or national equivalents;
b. Pour point is determined using the method described in ASTM D-97 or national equivalents;
c. Viscosity index is determined using the method describe in ASTM D-2270 or national equivalents;
d. Thermal stability is determined by the following test procedure or national equivalents:
Twenty ml of the fluid under test is placed in a 46 ml type 317 stainless steel chamber containing one each of 12.5 mm (nominal) diameter balls of M-10 tool steel, 52100 steel and naval bronze (60% Cu, 39% Zn, 0.75% Sn);
The chamber is purged with nitrogen, sealed at atmospheric pressure and the temperature raised to and maintained at 644 ± 6 K (371 ± 6 °C) for six hours;
The specimen will be considered thermally stable if, on completion of the above procedure, all of the following conditions are met:
1. The loss in weight of each ball is less than 10 mg/mm
2. The change in original viscosity as determined at 311 K (38 °C) is less than 25%; and
3. The total acid or base number is less than 0.40;
e. Autogenous ignition temperature is determined using the method described in ASTM E-659 or national equivalents.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. Non-“composite” ceramic materials in crude or semi-fabricated form, composed of borides of titanium with a density of 98% or more of the theoretical density;
1C007.b does not control abrasives.
c. Ceramic-ceramic “composite” materials with a glass or oxide-“matrix” and reinforced with fibers having all the following:
c.1 Made from any of the following materials:
c.1.a. Si-N;
c.1.b. Si-C;
c.1.c. Si-Al-O-N; or
c.1.d. Si-O-N; and
c.2. Having a “specific tensile strength” exceeding 12.7 × 10
d. Ceramic-ceramic “composite” materials, with or without a continuous metallic phase, incorporating particles, whiskers or fibers, where carbides or nitrides of silicon, zirconium or boron form the “matrix”;
e. Precursor materials (i.e., special purpose polymeric or metallo-organic materials) for producing any phase or phases of the materials controlled by 1C007.c, as follows:
e.1. Polydiorganosilanes (for producing silicon carbide);
e.2. Polysilazanes (for producing silicon nitride);
e.3. Polycarbosilazanes (for producing ceramics with silicon, carbon and nitrogen components);
f. Ceramic-ceramic “composite” materials with an oxide or glass “matrix” reinforced with continuous fibers from any of the following systems:
f.1. Al
f.2. Si-C-N.
1C007.f does not control “composites” containing fibers from these systems with a fiber tensile strength of less than 700 MPa at 1,273 K (1,000 °C) or fiber tensile creep resistance of more than 1% creep strain at 100 MPa load and 1,273 K (1,000 °C) for 100 hours.
a.1. Bismaleimides;
a.2. Aromatic polyamide-imides;
a.3. Aromatic polyimides;
a.4. Aromatic polyetherimides having a glass transition temperature (Tg) exceeding 513K (240 °C).
1C008.a does not control non-fusible compression molding powders or molded forms.
b. Thermoplastic liquid crystal copolymers having a heat distortion temperature exceeding 523 K (250 °C) measured according to ISO 75-3 (2004), or national equivalents, with a load of 1.82 N/mm
b.1. Any of the following:
b.1.a. Phenylene, biphenylene or naphthalene; or
b.1.b. Methyl, tertiary-butyl or phenyl substituted phenylene, biphenylene or naphthalene; and
b.2. Any of the following acids:
b.2.a. Terephthalic acid;
b.2.b. 6-hydroxy-2 naphthoic acid;
b.2.c. 4-hydroxybenzoic acid;
c. Polyarylene ether ketones, as follows:
c.1. [Reserved]
c.2. Polyether ketone ketone (PEKK);
c.3. Polyether ketone (PEK);
c.4. Polyether ketone ether ketone ketone (PEKEKK)
d. Polyarylene ketones;
e. Polyarylene sulphides, where the arylene group is biphenylene, triphenylene or combinations thereof;
f. Polybiphenylenethersulphone having a glass transition temperature (Tg) exceeding 513 K (240 °C).
The glass transition temperature (Tg) for 1C008 materials is determined using the method described in ISO 11357-2 (1999) or national equivalents.
b. Fluorinated polyimides containing 10% by weight or more of combined fluorine;
c. Fluorinated phosphazene elastomers containing 30% by weight or more of combined fluorine.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. A specific modulus exceeding 12.7 × 10
a.2. A specific tensile strength exceeding 23.5 × 10
1C010.a does not control polyethylene.
b. Carbon “fibrous or filamentary materials”, having all of the following:
b.1. A specific modulus exceeding 12.7 × 10
b.2. A specific tensile strength exceeding 23.5 × 10
Properties for materials described in 1C010.b should be determined using SACMA recommended methods SRM 12 to 17, or national equivalent tow tests, such as Japanese Industrial Standard JIS-R-7601, Paragraph 6.6.2, and based on lot average.
1C010.b does not control fabric made from “fibrous or filamentary materials” for the repair of aircraft structures or laminates, in which the size of individual sheets does not exceed 50 cm × 90 cm.
c. Inorganic “fibrous or filamentary materials”, having all of the following:
c.1. A specific modulus exceeding 2.54 × 10
c.2. A melting, softening, decomposition or sublimation point exceeding 1,922 K (1,649 °C) in an inert environment;
1C010.c does not control:
1. Discontinuous, multiphase, polycrystalline alumina fibers in chopped fiber or random mat form, containing 3 weight percent or more silica, with a specific modulus of less than 10×10
2. Molybdenum and molybdenum alloy fibers;
3. Boron fibers;
4. Discontinuous ceramic fibers with a melting, softening, decomposition or sublimation point lower than 2,043 K (1,770 °C) in an inert environment.
d. “Fibrous or filamentary materials”:
d.1. Composed of any of the following:
d.1.a. Polyetherimides controlled by 1C008.a;
d.1.b. Materials controlled by 1C008.b to 1C008.f;
d.2. Composed of materials controlled by 1C010.d.1.a or 1C010.d.1.b and “commingled” with other fibers controlled by 1C010.a, 1C010.b or 1C010.c;
e. Resin-impregnated or pitch-impregnated fibers (prepregs), metal or carbon-coated fibers (preforms) or “carbon fiber preforms”, as follows:
e.1. Made from “fibrous or filamentary materials” controlled by 1C010.a, 1C010.b or 1C010.c;
e.2. Made from organic or carbon “fibrous or filamentary materials”:
e.2.a. With a “specific tensile strength” exceeding 17.7×10
e.2.b. With a “specific modulus” exceeding 10.15×10
e.2.c. Not controlled by 1C010.a or 1C010.b;
e.2.d. When impregnated with materials controlled by 1C008 or 1C009.b, having a glass transition temperature (T
1C010.e does not control:
1. Epoxy resin “matrix” impregnated carbon “fibrous or filamentary materials” (prepregs) for the repair of aircraft structures or laminates, in which the size of individual sheets of prepreg does not exceed 50 cm × 90 cm;
2. Prepregs when impregnated with phenolic or epoxy resins having a glass transition temperature (T
The glass transition temperature (T
The natural content of hafnium in the zirconium (typically 2% to 7%) is counted with the zirconium.
The metals or alloys listed in 1C011. a are controlled whether or not the metals or alloys are encapsulated in aluminum, magnesium, zirconium or beryllium.
b. Boron or boron carbide of 85% purity or higher and a particle size of 60 µm or less;
The metals or alloys listed in 1C011.b are controlled whether or not the metals or alloys are encapsulated in aluminum, magnesium, zirconium or beryllium.
c. Guanidine nitrate;
d. Nitroguanidine (NQ) (CAS 556-88-7).
1C012.a does not control:
1. Shipments with a plutonium content of 1 g or less;
2. Shipments of 3 “effective grams” or less when contained in a sensing component in instruments.
b. Previously separated neptunium-237 in any form.
1C012.b does not control shipments with a neptunium-237 content of 1 g or less.
a.1. Contain any controlled materials;
a.2. Have a uniform shaped conical liner with an included angle of 90 degrees or less;
a.3. Have more than 0.090 kg but not more that 2.0 kg of controlled materials; and
a.4. Have a diameter not exceeding 4.5 inches.
b. Detonating cord or shock tubes containing greater than 0.064 kg per meter (300 grains per foot), but not more than 0.1 kg per meter (470 grains per foot) of controlled materials;
c. Cartridge power devices containing greater than 0.70 kg, but not more than 1.0 kg of controlled materials;
d. Detonators (electric or nonelectric) and assemblies thereof containing greater than 0.01 kg, but not more than 0.1 kg of controlled materials;
e. Igniters containing greater than 0.01 kg, but not more than 0.1 kg of controlled materials;
f. Oil well cartridges containing greater than 0.015 kg, but not more than 0.1 kg of controlled materials;
g. Commercial cast or pressed boosters containing greater than 1.0 kg, but not more than 5.0 kg of controlled materials;
h. Commercial prefabricated slurries and emulsions containing greater than 10 kg and less than or equal to thirty-five percent by weight of USML controlled materials;
i. Cutters and severing tools containing greater than 3.5 kg, but not more than 10 kg of controlled materials;
j. Pyrotechnic devices when designed exclusively for commercial purposes (
k. Other commercial explosive devices and charges, not controlled by 1C018.a through g above, when used for commercial applications and containing greater than 1.0 kg but not more than 5.0 kg of controlled materials;
l. Propyleneimine (2-methylaziridine) (CAS 75-55-8); or
m. Any oxidizer or mixture thereof that is a compound composed of fluorine and one or more of the following—other halogens, oxygen, or nitrogen.
Nitrogen trifluoride (NF
National security is not a reason for control for chlorine trifluoride.
If a chemical in paragraphs .1 or .m of 1C018 is incorporated into a commercial charge or device described in paragraphs .a through .k of ECCN 1C018 or in 1C992, the classification of the commercial charge or device applies to the item.
a.1. Cylinders having a diameter of 120 mm or greater and a length of 50 mm or greater;
a.2. Tubes having an inner diameter of 65 mm or greater and a wall thickness of 25 mm or greater and a length of 50 mm or greater;
a.3. Blocks having a size of 120 mm × 120 mm × 50 mm or greater.
b. Pyrolytic or fibrous reinforced graphites, usable for rocket nozzles and reentry vehicle nose tips;
c. Ceramic composite materials (dielectric constant is less than 6 at any frequency from 100 MHz to 100 GHz), for use in missile radomes; and
d. Bulk machinable silicon-carbide reinforced unfired ceramic, usable for nose tips.
a.1. Spherical aluminum powder, other than that specified on the U.S. Munitions List, with particles of uniform diameter of less than 200 micrometer and an aluminum content of 97% by weight or more, if at least 10 percent of the total weight is made up of particles of less than 63 micrometer, according to ISO 2591:1988 or national equivalents such as JIS Z8820.
A particle size of 63 micrometer (ISO R-565) corresponds to 250 mesh (Tyler) or 230 mesh (ASTM standard E-11).
a.2. Metal fuels, other than that controlled by the U.S. Munitions List, in particle sizes of less than z60×10
a.2.aZirconium;
a.2.bBeryllium;
a.2.cMagnesium; or
a.2.dAlloys of the metals specified by a.2.a to a.2.c above.
The natural content of hafnium in the zirconium (typically 2% to 7%) is counted with the zirconium.
a.3. Liquid oxidizers, as follows:
a.3.a. Dinitrogen trioxide;
a.3.b. Nitrogen dioxide/dinitrogen tetroxide;
a.3.c. Dinitrogen pentoxide;
a.3.d. Mixed oxides of nitrogen (MON);
a.3.e. Inhibited red fuming nitric acid (IRFNA);
Mixed oxides of nitrogen (MON) are solutions of nitric oxide (NO) in dinitrogen tetroxide/nitrogen dioxide (N
b. Polymeric substances:
b.1. Carboxy-terminated polybutadiene (CTPB);
b.2. Hydroxy-terminated polybutadiene (HTPB), other than that controlled by the U.S. Munitions List;
b.3. Polybutadiene-acrylic acid (PBAA);
b.4. Polybutadiene-acrylic acid -acrylonitrile (PBAN);
c. Other propellant additives and agents:
c.1. Butacene;
c.2. Triethylene glycol dinitrate (TEGDN);
c.3. 2-Nitrodiphenylamine;
c.4. Trimethylolethane trinitrate (TMETN);
c.5. Diethylene glycol dinitrate (DEGDN).
a. Having all of the following characteristics:
a.1.Containing 17.0-23.0 weight percent chromium and 4.5-7.0 weight percent nickel;
a.2.Having a titanium content of greater than 0.10 weight percent;
a.3.A ferritic-austenitic microstructure (also referred to as a two-phase microstructure) of which at least 10 percent is austenite by volume (according to ASTM E-1181-87 or national equivalents),
b. Having any of the following forms:
b.1. Ingots or bars having a size of 100 mm or more in each dimension;
b.2. Sheets having a width of 600 mm or more and a thickness of 3 mm or less;
b.3. Tubes having an outer diameter of 600 mm or more and a wall thickness of 3 mm or less.
a.1. “Capable of” an ultimate tensile strength of 460 MPa or more at 293 K (20 °C);
a.2. In the form of tubes or cylindrical solid forms (including forgings) with an outside diameter of more than 75 mm;
b. Titanium alloys having both of the following characteristics:
b.1. “Capable of” an ultimate tensile strength of 900 MPa or more at 293 K (20 °C);
b.2. In the form of tubes or cylindrical solid forms (including forgings) with an outside diameter of more than 75 mm.
b. Glass “fibrous or filamentary materials” having a “specific modulus” of 3.18 × 10
c. Thermoset resin impregnated continuous “yarns”, “rovings”, “tows” or “tapes” with a width no greater than 15 mm (prepregs), made from carbon or glass “fibrous or filamentary materials” controlled by 1C210.a or .b.
The resin forms the matrix of the composite.
The natural isotopic abundance of boron-10 is approximately 18.5 weight percent (20 atom percent).
b. A mass greater than 20 kg.
b. Containing less than 10 parts per million by weight of boron.
b. Containing less than 10 parts per million by weight of boron.
b. Containing less than 10 parts per million by weight of silver.
a. Metal windows for X-ray machines, or for bore-hole logging devices;
b. Oxide shapes in fabricated or semi-fabricated forms specially designed for electronic component parts or as substrates for electronic circuits;
c. Beryl (silicate of beryllium and aluminum) in the form of emeralds or aquamarines.
a. Elemental;
b. Compounds having a total alpha activity of 37 GBq/kg (1 Ci/kg) or greater;
c. Mixtures having a total alpha activity of 37 GBq/kg (1 Ci/kg) or greater;
d. Products or devices containing any of the items in 1C236.a, .b., or .c.
a. Medical applicators;
b. A product or device containing less than 0.37 GBq (10 millicuries) of radium-226.
a. Filamentary nickel powders;
b. Single porous nickel sheets with an area of 1,000 cm
a.1. A nickel purity content of 99.0% or greater by weight; and
a.2. A mean particle size of less than 10 micrometers measured by American Society for Testing and Materials (ASTM) B330 standard;
b. Porous nickel metal produced from materials controlled by 1C240.a.
1C240.b refers to porous metal formed by compacting and sintering the materials in 1C240.a to form a metal material with fine pores interconnected throughout the structure.
Unit: N/A
CW applies to 1C350 .b, and .c. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CW reasons. A license is required, for CW reasons, to export or reexport Schedule 2 chemicals and mixtures identified in 1C350.b to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR). A license is required, for CW reasons, to export Schedule 3 chemicals and mixtures identified in 1C350.c to States not Party to the CWC, unless an End-Use Certificate issued by the government of the importing country has been obtained by the exporter prior to export. A license is required, for CW reasons, to reexport Schedule 3 chemicals and mixtures identified in 1C350.c from a State not Party to the CWC to any other State not Party to the CWC. (See § 742.18 of the EAR for license requirements and policies for toxic and precursor chemicals controlled for CW reasons. See § 745.2 of the EAR for End-Use Certificate requirements that apply to exports of Schedule 3 chemicals to countries not listed in Supplement No. 2 to part 745 of the EAR.)
AT applies to entire entry. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for AT reasons in 1C350. A license is required, for AT reasons, to export or reexport items controlled by 1C350 to a country in Country Group E:1 of Supplement No. 1 to part 740 of
a.
A. [Reserved]
B.
b.
c.
d.
e.
2.
a. Mixtures that contain precursor chemicals identified in ECCN 1C350, in concentrations that are below the levels indicated in 1C350.b through .d, are controlled by ECCN 1C395 or 1C995 and are subject to the licensing requirements specified in those ECCNs.
b. A license is not required for mixtures controlled under this ECCN when the controlled chemical in the mixture is a normal ingredient in consumer goods packaged for retail sale for personal use. Such consumer goods are classified as EAR99.
Note to Mixtures: Calculation of concentrations of AG-controlled chemicals:
a.
b.
3.
4.
2. The scope of this control applicable to Hydrogen Fluoride (see 1C350.d.7 in the List of Items Controlled) includes its liquid, gaseous, and aqueous phases, and hydrates.
b. Australia Group-controlled precursor chemicals also identified as Schedule 2 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:
b.1. (C.A.S. #7784-34-1) Arsenic trichloride;
b.2. (C.A.S. #76-93-7) Benzilic acid;
b.3. (C.A.S. #78-38-6) Diethyl ethylphosphonate;
b.4. (C.A.S. #15715-41-0) Diethyl methylphosphonite;
b.5. (C.A.S. #2404-03-7) Diethyl-N,N-dimethylphosphoroamidate;
b.6. (C.A.S. #5842-07-9) N,N-Diisopropyl-beta-aminoethane thiol;
b.7. (C.A.S. #4261-68-1) N,N-Diisopropyl-beta-aminoethyl chloride hydrochloride;
b.8. (C.A.S. #96-80-0) N,N-Diisopropyl-beta-aminoethanol;
b.9. (C.A.S. #96-79-7), N,N-Diisopropyl-beta-aminoethyl chloride;
b.10. (C.A.S. #6163-75-3) Dimethyl ethylphosphonate;
b.11. (C.A.S. #756-79-6) Dimethyl methylphosphonate;
b.12. (C.A.S. #1498-40-4) Ethyl phosphonous dichloride [Ethyl phosphinyl dichloride];
b.13. (C.A.S. #430-78-4) Ethyl phosphonus difluoride [Ethyl phosphinyl difluoride];
b.14. (C.A.S. #1066-50-8) Ethyl phosphonyl dichloride;
b.15. [Reserved]
b.16. [Reserved]
b.17. [Reserved]
b.18. (C.A.S. #464-07-3) Pinacolyl alcohol;
b.19. (C.A.S. #1619-34-7) 3-Quinuclidinol;
b.20. (C.A.S. #111-48-8) Thiodiglycol;
b.21. (C.A.S. #993-13-5) Methylphosphonic acid;
b.22. (C.A.S. #683-08-9) Diethyl methylphosphonate;
b.23. (C.A.S. #677-43-0) N,N-dimethylamino-phosphoryl dichloride;
b.24. (C.A.S. #676-98-2) Methylphos-phonothioic dichloride.
c. Australia Group-controlled precursor chemicals also identified as Schedule 3 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:
c.1. (C.A.S. #762-04-9) Diethyl phosphite;
c.2. (C.A.S. #868-85-9) Dimethyl phosphite (dimethyl hydrogen phosphite);
c.3. (C.A.S. #10025-87-3) Phosphorus oxychloride;
c.4. (C.A.S. #10026-13-8) Phosphorus pentachloride;
c.5. (C.A.S. #7719-12-2) Phosphorus trichloride;
c.6. (C.A.S. #10025-67-9) Sulfur monochloride;
c.7. (C.A.S. #10545-99-0) Sulfur dichloride;
c.8. (C.A.S. #7719-09-7) Thionyl chloride;
c.9. (C.A.S. #102-71-6) Triethanolamine;
c.10. (C.A.S. #122-52-1) Triethyl phosphite;
c.11. (C.A.S. #121-45-9) Trimethyl phosphite;
c.12. (C.A.S. #139-87-7) Ethyldiethan-olamine.
d. Other Australia Group-controlled precursor chemicals not also identified as Schedule 1, 2, or 3 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:
d.1. (C.A.S. #1341-49-7) Ammonium hydrogen fluoride;
d.2. (C.A.S. #107-07-3) 2-Chloroethanol;
d.3. (C.A.S. #100-37-8) N,N-Diethylaminoethanol;
d.4. (C.A.S. #108-18-9) Di-isopropylamine;
d.5. (C.A.S. #124-40-3) Dimethylamine;
d.6. (C.A.S. #506-59-2) Dimethylamine hydrochloride;
d.7. (C.A.S. #7664-39-3) Hydrogen fluoride;
d.8. (C.A.S. #3554-74-3) 3-Hydroxyl-1-methylpiperidine;
d.9. (C.A.S. #76-89-1) Methyl benzilate;
d.10. (C.A.S. #1314-80-3) Phosphorus pentasulfide;
d.11. (C.A.S. #75-97-8) Pinacolone;
d.12. (C.A.S. #151-50-8) Potassium cyanide;
d.13. (C.A.S. #7789-23-3) Potassium fluoride;
d.14. (C.A.S. #7789-29-9) Potassium bifluoride;
d.15. (C.A.S. #3731-38-2) 3-Quinuclidone;
d.16. (C.A.S. #1333-83-1) Sodium bifluoride;
d.17. (C.A.S. #143-33-9) Sodium cyanide;
d.18. (C.A.S. #7681-49-4) Sodium fluoride;
d.19. (C.A.S. #1313-82-2) Sodium sulfide;
d.20. (C.A.S. #637-39-8) Triethanolamine hydrochloride;
d.21. (C.A.S. #116-17-6) Tri-isopropyl phosphite;
d.22. (C.A.S. #2465-65-8) O,O-diethyl phosphorothioate;
d.23. (C.A.S. #298-06-6) O,O-diethyl phosphorodithioate;
d.24. (C.A.S. #16893-85-9) Sodium hexafluorosilicate.
CW applies to 1C351.d.5 and d.6 and a license is required for CW reasons for all destinations, including Canada, as follows: CW
a.1. Chikungunya virus;
a.2. Congo-Crimean haemorrhagic fever virus (a.k.a. Crimean-Congo haemorrhagic fever virus);
a.3. Dengue fever virus;
a.4. Eastern equine encephalitis virus;
a.5. Ebola virus;
a.6. Hantaan virus;
a.7. Japanese encephalitis virus;
a.8. Junin virus;
a.9. Lassa fever virus
a.10. Lymphocytic choriomeningitis virus;
a.11. Machupo virus;
a.12. Marburg virus;
a.13. Monkey pox virus;
a.14. Rift Valley fever virus;
a.15. Tick-borne encephalitis virus (Russian Spring-Summer encephalitis virus);
a.16. Variola virus;
a.17. Venezuelan equine encephalitis virus;
a.18. Western equine encephalitis virus;
a.19. White pox;
a.20. Yellow fever virus;
a.21. Kyasanur Forest virus;
a.22. Louping ill virus;
a.23. Murray Valley encephalitis virus;
a.24. Omsk haemorrhagic fever virus;
a.25. Oropouche virus;
a.26. Powassan virus;
a.27. Rocio virus;
a.28. St. Louis encephalitis virus;
a.29. Hendra virus (Equine morbillivirus);
a.30. South American haemorrhagic fever (Sabia, Flexal, Guanarito);
a.31. Pulmonary and renal syndrome-haemorrhagic fever viruses (Seoul, Dobrava, Puumala, Sin Nombre);
a.32. Nipah virus.
b. Rickettsiae, as follows:
b.1. Bartonella quintana (Rochalimea quintana, Rickettsia quintana);
b.2. Coxiella burnetii;
b.3. Rickettsia prowasecki (a.k.a. Rickettsia prowazekii);
b.4. Rickettsia rickettsii.
c. Bacteria, as follows:
c.1. Bacillus anthracis;
c.2. Brucella abortus;
c.3. Brucella melitensis;
c.4. Brucella suis;
c.5. Burkholderia mallei (Pseudomonas mallei);
c.6. Burkholderia pseudomallei (Pseudomonas pseudomallei);
c.7. Chlamydia psittaci;
c.8. Clostridium botulinum;
c.9. Francisella tularensis;
c.10. Salmonella typhi;
c.11. Shigella dysenteriae;
c.12. Vibrio cholerae;
c.13. Yersinia pestis;
c.14. Clostridium perfringens, epsilon toxin producing types;
c.15. Enterohaemorrhagic Escherichia coli, serotype O157 and other verotoxin producing serotypes.
d. “Toxins”, as follows, and “subunits” thereof:
d.1. Botulinum toxins;
d.2. Clostridium perfringens toxins;
d.3. Conotoxin;
d.4. Microcystin (Cyanginosin);
d.5. Ricin;
d.6. Saxitoxin;
d.7. Shiga toxin;
d.8. Staphylococcus aureus toxins;
d.9. Tetrodotoxin;
d.10. Verotoxin and other Shiga-like ribosome inactivating proteins;
d.11. Aflatoxins;
d.12. Abrin;
d.13. Cholera toxin;
d.14. Diacetoxyscirpenol toxin;
d.15. T-2 toxin;
d.16. HT-2 toxin;
d.17. Modeccin toxin;
d.18. Volkensin toxin;
d.19. Viscum Album Lectin 1 (Viscumin).
e. “Fungi”, as follows:
e.1. Coccidioides immitis;
e.2. Coccidioides posadasii.
a.1. African swine fever virus;
a.2. Avian influenza viruses that are:
a.2.a. Defined in EC Directive 92/40/EC (O.J. L.16 23.1.92 p. 19) as having high pathogenicity, as follows:
a.2.a.1. Type A viruses with an IVPI (intravenous pathogenicity index) in 6 week old chickens of greater than 1.2; or
a.2.a.2. Type A viruses H5 or H7 subtype for which nucleotide sequencing has demonstrated multiple basic amino acids at the cleavage site of haemagglutinin;
a.3. Bluetongue virus;
a.4. Foot and mouth disease virus;
a.5. Goat pox virus;
a.6. Porcine herpes virus (Aujeszky's disease);
a.7. Swine fever virus (Hog cholera virus);
a.8. Lyssa virus;
a.9. Newcastle disease virus;
a.10. Peste des petits ruminants virus;
a.11. Porcine enterovirus type 9 (swine vesicular disease virus);
a.12. Rinderpest virus;
a.13. Sheep pox virus;
a.14. Teschen disease virus;
a.15. Vesicular stomatitis virus;
a.16. Lumpy skin disease virus;
a.17. African horse sickness virus.
b. Bacteria, as follows:
b.1. Mycoplasma mycoides;
b.2. Reserved.
a.1. Genetic elements that contain nucleic acid sequences associated with the pathogenicity of microorganisms controlled by 1C351.a to .c, 1C352, 1C354, or 1C360;
a.2. Genetic elements that contain nucleic acid sequences coding for any of the “toxins” controlled by 1C351.d or “sub-units of toxins” thereof.
b. Genetically modified organisms, as follows:
b.1. Genetically modified organisms that contain nucleic acid sequences associated with the pathogenicity of microorganisms controlled by 1C351.a to .c, 1C352, 1C354, or 1C360;
b.2. Genetically modified organisms that contain nucleic acid sequences coding for any of the “toxins” controlled by 1C351.d or “sub-units of toxins” thereof.
1. “Genetic elements” include, inter alia, chromosomes, genomes, plasmids, transposons, and vectors, whether genetically modified or unmodified.
2. This ECCN does not control nucleic acid sequences associated with the pathogenicity of enterohaemorrhagic Escherichia coli, serotype O157 and other verotoxin producing strains, except those nucleic acid sequences that contain coding for the verotoxin or its sub-units.
3. “Nucleic acid sequences associated with the pathogenicity of any of the microorganisms controlled by 1C351.a to .c, 1C352, 1C354, or 1C360” means any sequence specific to the relevant controlled microorganism that:
a. In itself or through its transcribed or translated products represents a significant hazard to human, animal or plant health; or
b. Is known to enhance the ability of a microorganism controlled by 1C351.a to .c, 1C352, 1C354, or 1C360, or any other organism into which it may be inserted or otherwise integrated, to cause serious harm to human, animal or plant health.
a.1.
a.2.
a.3.
a.4.
a.5.
b. Fungi, as follows:
b.1.
b.2.
b.3.
b.4.
b.5.
b.6.
c. Viruses, as follows:
c.1. Potato Andean latent tymovirus;
c.2. Potato spindle tuber viroid.
1.
a. Mixtures containing toxic and precursor chemicals identified in ECCN 1C355, in concentrations that are below the control levels indicated in 1C355.a and .b, are controlled by ECCN 1C995 and are subject to the license requirements specified in that ECCN.
b. Mixtures containing chemicals identified in this entry are not controlled by ECCN 1C355 when the controlled chemical is a normal ingredient in consumer goods packaged for retail sale for personal use or packaged for individual use. Such consumer goods are classified as EAR99.
Note to mixtures: Calculation of concentrations of CW-controlled chemicals:
a.
b.
2.
a.1. Toxic chemicals, as follows, and mixtures containing toxic chemicals:
a.1.a. PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene (C.A.S. 382-21-8) and mixtures in which PFIB constitutes more than 1 percent of the weight of the mixture;
a.1.b. [Reserved]
a.2. Precursor chemicals, as follows, and mixtures in which at least one of the following precursor chemicals constitutes more than 10 percent of the weight of the mixture:
a.2.a. Chemicals, except for those listed in Schedule 1, containing a phosphorus atom to which is bonded one methyl, ethyl, or propyl (normal or iso) group but not further carbon atoms.
1C355.a.2.a does
a.2.b. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides;
a.2.c. FAMILY: Dialkyl (Me, Et, n-Pr or i-Pr) N,N-Dialkyl (Me, Et, n-Pr, or i-Pr)-phosphoramidates;
a.2.d. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts;
a.2.e. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts;
1C355.a.2.e. does
a.2.f. FAMILY: N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts.
b. CWC Schedule 3 chemicals and mixtures containing Schedule 3 chemicals:
b.1. Toxic chemicals, as follows, and mixtures in which at least one of the following toxic chemicals constitutes 30 percent or more of the weight of the mixture:
b.1.a. Phosgene: Carbonyl dichloride (C.A.S. 75-44-5);
b.1.b. Cyanogen chloride (C.A.S. 506-77-4);
b.1.c. Hydrogen cyanide (C.A.S. 74-90-8);
b.1.d. Chloropicrin: Trichloronitromethane (C.A.S. 76-06-2).
b.2. Precursor chemicals, as follows, and mixtures in which at least one of the following precursor chemicals constitutes 30 percent or more of the weight of the mixture:
b.2.a.. [Reserved];
b.2.b. Methyldiethanolamine (C.A.S. 105-59-9).
The control status of items listed in this ECCN is not affected by the exemptions or exclusions contained in the domestic possession, use, and transfer regulations maintained by APHIS (at 7 CFR part 331 and 9 CFR part 121) and/or CDC (at 42 CFR part 73).
a. Human and zoonotic pathogens, as follows:
a.1. Viruses, as follows:
a.1.a. Central European tick-borne encephalitis viruses, as follows:
a.1.a.1. Absettarov;
a.1.a.2. Hanzalova;
a.1.a.3. Hypr;
a.1.a.4. Kumlinge;
a.1.b. Cercopithecine herpesvirus 1 (Herpes B virus);
a.1.c. Reconstructed replication competent forms of the 1918 pandemic influenza virus containing any portion of the coding regions of all eight gene segments;
a.2. [Reserved];
b. Animal pathogens, as follows:
b.1. Viruses, as follows:
b.1.a. Akabane virus;
b.1.b. Bovine spongiform encephalopathy agent;
b.1.c. Camel pox virus;
b.1.d. Malignant catarrhal fever virus;
b.1.e. Menangle virus;
b.2. Mycoplasma, as follows:
b.2.a. Mycoplasma capricolum;
b.2.b. Mycoplasma F38;
b.3. Rickettsia, as follows:
b.3.a. Erhlichia ruminantium (a.k.a. Cowdria ruminantium);
b.3.b. [Reserved]
c. Plant pathogens, as follows:
c.1. Bacteria, as follows:
c.1.a. Candidatus Liberobacter africanus (a.k.a. Liberobacter africanus);
c.1.b. Candidatus Liberobacter asiaticus (a.k.a. Liberobacter asiaticus);
c.1.c. Xylella fastidiosa pv. citrus variegated chlorosis (CVC);
c.2. Fungi, as follows:
c.2.a. Peronosclerospora philippinensis;
c.2.b. Sclerophthora rayssiae var. zeae;
c.2.c. Synchytrium endobioticum.
CB applies to entire entry. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CB reasons in 1C395. A license is required, for CB reasons, to export or reexport mixtures controlled by 1C395.a and test kits controlled by 1C395.b to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR).
CW applies to entire entry. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CW reasons. A license is required for CW reasons, as follows, to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR): (1) Exports and reexports of mixtures controlled by 1C395.a, (2) exports and reexports of test kits controlled by 1C395.b that contain CWC Schedule 2 chemicals controlled by ECCN 1C350, (3) exports of test kits controlled by 1C395.b that contain CWC Schedule 3 chemicals controlled by ECCN 1C350, except that a license is not required, for CW reasons, to export test kits containing CWC Schedule 3 chemicals if an End-Use Certificate issued by the government of the importing country is obtained by the exporter prior to export, and (4) reexports from States not Party to the CWC of test kits controlled by 1C395.b that contain CWC Schedule 3 chemicals. (
AT applies to entire entry. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for AT reasons in 1C395. A license is required, for AT reasons, to export or reexport items controlled by 1C395 to a country in Country Group E:1 of Supplement No. 1 to part 740 of the EAR. (
2. This ECCN does not control mixtures when the controlled chemicals are normal ingredients in consumer goods packaged for retail sale for personal use. Such consumer goods are classified as EAR99.
b. “Medical, analytical, diagnostic, and food testing kits” (as defined in the Related Definitions for this ECCN) that contain CWC Schedule 2 or 3 chemicals controlled by ECCN 1C350.b or .c in an amount
(a) Ricinus Communis Agglutinin
(b) Ricinus Communis Lectin
(c) Saxitoxin identified by C.A.S. #35523-89-8.
(2) The export of a “medical product” that is an “Investigational New Drug” (IND), as defined in 21 CFR 312.3, is subject to certain U.S. Food and Drug Administration (FDA) requirements that are independent of the export requirements specified in this ECCN or elsewhere in the EAR. These FDA requirements are described in 21 CFR 312.110 and must be satisfied in addition to any requirements specified in the EAR.
(3) Also see 21 CFR 314.410 for FDA requirements concerning exports of new drugs and new drug substances.
b. Immunotoxins containing items controlled by 1C351.d;
c. Medical products containing botulinum toxins controlled by ECCN 1C351.d.1 or conotoxins controlled by ECCN 1C351.d.3;
d. Medical products containing items controlled by ECCN 1C351.d (except botulinum toxins controlled by ECCN 1C351.d.1, conotoxins controlled by ECCN 1C351.d.3, and items controlled for CW reasons under 1C351.d.5 or .d.6);
e. Diagnostic and food testing kits containing items controlled by ECCN 1C351.d (except items controlled for CW reasons under ECCN 1C351.d.5 or .d.6).
RS applies to entire entry. A license is required for items controlled by this entry for export or reexport to Iraq and transfer within Iraq for regional stability reasons. The Commerce Country Chart is not designed to determine RS license requirements for this entry. See §§ 742.6 and 746.3 of the EAR for additional information.
a.1. Contain any formulation of controlled materials;
a.2. Have only a uniform shaped conical liner with an included angle of 90 degrees or less;
a.3. Contain more than 0.010 kg but less than or equal to 0.090 kg of controlled materials; and
a.4. Have a diameter not exceeding 4.5 inches;
b. Shaped charges specially designed for oil well operations containing less than or equal to 0.010 kg of controlled materials;
c. Detonation cord or shock tubes containing less than or equal to 0.064 kg per
d. Cartridge power devices, that contain less than or equal to 0.70 kg of controlled materials in the deflagration material;
e. Detonators (electric or nonelectric) and assemblies thereof, that contain less than or equal to 0.01 kg of controlled materials;
f. Igniters, that contain less than or equal to 0.01 kg of controlled materials;
g. Oil well cartridges, that contain less than or equal to 0.015 kg of controlled energetic materials;
h. Commercial cast or pressed boosters containing less than or equal to 1.0 kg of controlled materials;
i. Commercial prefabricated slurries and emulsions containing less than or equal to 10.0 kg and less than or equal to thirty-five percent by weight of USML controlled materials;
j. Cutters and severing tools containing less than or equal to 3.5 kg of controlled materials;
k. Pyrotechnic devices when designed exclusively for commercial purposes (
l. Other commercial explosive devices and charges not controlled by 1C992.a through .k containing less than or equal to 1.0 kg of controlled materials.
1C992.l includes automotive safety devices; extinguishing systems; cartridges for riveting guns; explosive charges for agricultural, oil and gas operations, sporting goods, commercial mining, or public works purposes; and delay tubes used in the assembly of commercial explosive devices.
m. Nitrogen trifluoride (NF
RS applies to entire entry. A license is required for items controlled by this entry for export or reexport to Iraq or transfer within Iraq for regional stability reasons. The Commerce Country Chart is not designed to determine RS license requirements for this entry. See §§ 742.6 and 746.3 of the EAR for additional information.
1. This ECCN does not control mixtures containing less than 0.5% of any single toxic or precursor chemical controlled by ECCN 1C350.b, .c, or .d or ECCN 1C355 as unavoidable by-products or impurities. Such mixtures are classified as EAR99.
2. 1C995.c does not control mixtures that contain precursor chemicals identified in 1C350.d in concentrations below the levels for mixtures indicated in 1C350.d. 1C995.a.2.b controls such mixtures, unless they are consumer goods as described in License Requirements Note 3 of this ECCN.
3. This ECCN does not control mixtures when the controlled chemicals are normal ingredients in consumer goods packaged for retail sale for personal use. Such consumer goods are classified as EAR99.
a.1. Mixtures containing 10 percent or less, by weight, of any single CWC Schedule 2 chemical controlled by ECCN 1C350.b;
a.2. Mixtures containing less than 30 percent, by weight, of:
a.2.a. Any single CWC Schedule 3 chemical controlled by ECCN 1C350.c; or
a.2.b. Any single precursor chemical controlled by ECCN 1C350.d.
b. Mixtures containing the following concentrations of toxic or precursor chemicals controlled by ECCN 1C355 (For controls on other mixtures containing these chemicals, see Note 3 in the Related Controls paragraph of this ECCN.):
b.1. Mixtures containing the following concentrations of CWC Schedule 2 chemicals controlled by ECCN 1C355.a:
b.1.a. Mixtures containing 1 percent or less, by weight, of any single CWC Schedule 2 chemical controlled by ECCN 1C355.a.1 (i.e., mixtures containing PFIB); or
b.1.b. Mixtures containing 10 percent or less, by weight, of any single CWC Schedule 2 chemical controlled by 1C355.a.2;
b.2. Mixtures containing less than 30 percent, by weight, of any single CWC Schedule 3 chemical controlled by ECCN 1C355.b.
c. “Medical, analytical, diagnostic, and food testing kits” (as defined in the Related Definitions for this ECCN) that contain precursor chemicals controlled by ECCN 1C350.d in an amount
b. A pour point at 239 K (-34° C) or less;
c. A viscosity index of 75 or more;
d. A thermal stability at 616 K (343° C).
RS applies to entire entry. A license is required for items controlled by this entry for export or reexport to Iraq or transfer within Iraq for regional stability reasons. The Commerce Country Chart is not designed to determine RS license requirements for this entry. See §§ 742.6 and 746.3 of the EAR for additional information.
b. [Reserved].
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT license requirements for this entry. See § 742.19 of the EAR for additional information. RS applies to entire entry. A license is required for items controlled by this entry for export or reexport to Iraq or transfer within Iraq for regional stability reasons.
b. 304 and 316 stainless steel plate, n.e.s.;
c. Monel plate;
d. Tributyl phosphate;
e. Nitric acid in concentrations of 20 weight percent or greater;
f. Flourine;
g. Alpha-emitting radionuclides, n.e.s.
See § 743.1 of the EAR for reporting requirements for exports under Exceptions.
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT licensing requirements for this entry. See § 742.19 of the EAR for additional information.
b. Software specially designed for equipment for the production of structural composites, fibers, prepregs and preforms controlled by 1B999, n.e.s.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
(1) Items controlled for MT reasons; or
(2) Exports and reexports to destinations outside of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom of “technology” for the “development” or “production” of the following:
(a) Items controlled by 1C001; or
(b) Items controlled by 1A002.a which are composite structures or laminates having an organic “matrix” and being made from materials listed under 1C010.c or 1C010.d.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. “Technology” for the “development” or “production” of fluoroelastomer compounds containing at least one vinylether monomer;
c. “Technology” for the design or “production” of the following base materials or non-“composite” ceramic materials:
c.1. Base materials having all of the following characteristics:
c.1.a. Any of the following compositions:
c.1.a.1. Single or complex oxides of zirconium and complex oxides of silicon or aluminum;
c.1.a.2. Single nitrides of boron (cubic crystalline forms);
c.1.a.3. Single or complex carbides of silicon or boron;
c.1.a.4. Single or complex nitrides of silicon;
c.1.b. Total metallic impurities, excluding intentional additions, of less than:
c.1.b.1. 1,000 ppm for single oxides or carbides;
c.1.b.2. 5,000 ppm for complex compounds or single nitrides;
c.1.c. Being any of the following:
c.1.c.1. Zirconia with an average particle size equal to or less than 1 µm and no more than 10% of the particles larger than 5 µm;
c.1.c.2. Other base materials with an average particle size equal to or less than 5 µm and no more than 10% of the particles larger than 10 µm;
c.1.c.3. Having all of the following:
c.1.c.3.a. Platelets with a length to thickness ratio exceeding 5;
c.1.c.3.b. Whiskers with a length to diameter ratio exceeding 10 for diameters less than 2 µm;
c.1.c.3.c. Continuous or chopped fibers less than 10 µm in diameter;
c.2. Non-“composite” ceramic materials composed of the materials described in 1E002.c.1;
1E002.c.2 does not control technology for the design or production of abrasives.
d. “Technology” for the “production” of aromatic polyamide fibers;
e. “Technology” for the installation, maintenance or repair of materials controlled by 1C001;
f. “Technology” for the repair of “composite” structures, laminates or materials controlled by 1A002, 1C007.c or 1C007.d.
1E002.f does not control “technology” for the repair of “civil aircraft” structures using carbon “fibrous or filamentary materials” and epoxy resins, contained in aircraft manufacturers' manuals.
a.1. PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene (382-21-8);
a.2. [Reserved]
b. Technology for the production of the following CWC Schedule 3 toxic chemicals CWC:
b.1. Phosgene: Carbonyl dichloride (75-44-5);
b.2. Cyanogen chloride (506-77-4);
b.3. Hydrogen cyanide (74-90-8).
For quiet running bearings, see the U.S. Munitions List.
2A001 does not control balls with tolerance specified by the manufacturer in accordance with ISO 3290 as grade 5 or worse.
a. Ball bearings and solid roller bearings having all tolerances specified by the manufacturer in accordance with ISO 492 Tolerance Class 4 (or ANSI/ABMA Std 20 Tolerance Class ABEC-7 or RBEC-7, or other national equivalents), or better, and having both ringsand rolling elements (ISO 5593) made from monel or beryllium;
2A001.a does not control tapered roller bearings.
b. Other ball bearings and solid roller bearings having all tolerances specified by the
2A001.b does not control tapered roller bearings.
c. Active magnetic bearing systems using any of the following:
c.1. Materials with flux densities of 2.0 T or greater and yield strengths greater than 414 MPa;
c.2. All-electromagnetic 3D homopolar bias designs for actuators;
c.3. High temperature (450 K (177oC) and above) position sensors.
a.1. A volume of between 150 cm
a.2. Made of or coated with any of the following materials, having a purity of 98% or greater by weight:
a.2.a. Calcium fluoride (CaF
a.2.b. Calcium zirconate (metazirconate) (CaZrO
a.2.c. Cerium sulphide (Ce
a.2.d. Erbium oxide (erbia) (Er
a.2.e. Hafnium oxide (hafnia) (HfO
a.2.f. Magnesium oxide (MgO);
a.2.g. Nitrided niobium-titanium-tungsten alloy (approximately 50% Nb, 30% Ti, 20% W);
a.2.h. Yttrium oxide (yttria) (Y
a.2.i. Zirconium oxide (zirconia) (ZrO
b. Crucibles having both of the following characteristics:
b.1. A volume of between 50 cm
b.2. Made of or lined with tantalum, having a purity of 99.9% or greater by weight;
c. Crucibles having all of the following characteristics:
c.1. A volume of between 50 cm
c.2. Made of or lined with tantalum, having a purity of 98% or greater by weight;
c.3. Coated with tantalum carbide, nitride, boride, or any combination thereof.
b. Having a bellows seal;
c. Wholly made of or lined with aluminum, aluminum alloy, nickel, or nickel alloy containing more than 60% nickel by weight.
b. Process control systems intended for use with the equipment controlled by 2A290.a.
b. Simulators specially designed for “nuclear reactors”.
c. Casks that are specially designed for transportation of high-level radioactive material and that weigh more than 1,000 kg.
d. Commodities, parts and accessories specially designed or prepared for use with nuclear plants (
e. Radiation detectors and monitors specially designed for detecting or measuring “special nuclear material” (as defined in 10 CFR part 110) or for nuclear reactors.
2. 2A291.e does not control general purpose radiation detection equipment, such as geiger counters and dosimeters. These items are controlled by ECCN 1A999.
b. Pipe valves having all of the following characteristics:
b.1. A pipe size connection of 200 mm (8 in.) or more inside diameter;
b.2. Rated at 10.3 MPa (1,500 psi) or more.
(2) Explosives and detonators include commercial charges and devices controlled by 1C018 and 1C992 and energetic materials controlled by ECCNs 1C011, 1C111, 1C239 and 22 CFR 121.1 Category V.
Explosives or detonation detection equipment in 2A983 includes equipment for screening people, documents, baggage, other personal effects, cargo and/or mail.
a. Explosives detection equipment for automated decision making to detect and identify bulk explosives utilizing, but not limited to, x-ray (
b. Explosives detection equipment for automated decision making to detect and identify the presence of explosive residues utilizing, but not limited to, explosives trace detection techniques (
c. Detonator detection equipment for automated decision making to detect and identify initiation devices (
a.1. Manufactured for use at operating temperatures above 573 K (300° C) either by using special materials or by special heat treatment;
a.2. With lubricating elements or component modifications that, according to the manufacturer's specifications, are specially
b. Solid tapered roller bearings, having tolerances specified by the manufacturer in accordance with ANSI/AFBMA Class 00 (inch) or Class A (metric) or better (or equivalents) and having either of the following characteristics.
b.1. With lubricating elements or component modifications that, according to the manufacturer's specifications, are specially designed to enable the bearings to operate at speeds exceeding 2.3 million DN;
b.2. Manufactured for use at operating temperatures below 219 K (−54° C) or above 423 K (150° C).
c. Gas-lubricated foil bearing manufactured for use at operating temperatures of 561 K (288° C) or higher and a unit load capacity exceeding 1 MPa.
d. Active magnetic bearing systems.
e. Fabric-lined self-aligning or fabric-lined journal sliding bearings manufactured for use at operating temperatures below 219 K (−54° C) or above 423 K (150° C).
AT applies to entire entry. A license is required for items controlled by this entry to Cuba, Iran and North Korea. The Commerce Country Chart is not designed to determine licensing requirements for this entry. See part 746 of the EAR for additional information on Cuba and Iran. See § 742.19 of the EAR for additional information on North Korea.
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT licensing requirements for this entry. See § 742.19 of the EAR for additional information.
b. Reserved.
1. Secondary parallel contouring axes, (e.g., the w-axis on horizontal boring mills or a secondary rotary axis the center line of which is parallel to the primary rotary axis) are not counted in the total number of contouring axes. Rotary axes need not rotate over 360°. A rotary axis can be driven by a linear device (
2. Axis nomenclature shall be in accordance with International Standard ISO 841, “Numerical Control Machines—Axis and Motion Nomenclature”.
3. For the purposes of 2B001 to 2B009 a “tilting spindle” is counted as a rotary axis.
4. Guaranteed positioning accuracy levels instead of individual test protocols may be used for each machine tool model using the agreed ISO test procedure.
5. The positioning accuracy of “numerically controlled” machine tools is to be determined and presented in accordance with ISO 230/2 (1988).
1. Secondary parallel contouring axes, (
2. The number of axes which can be co-ordinated simultaneously for “contouring control” is the number of axes along or around which, during processing of the workpiece, simultaneous and interrelated motions are performed between the workpiece and a tool. This does not include any additional axes along or around which other relative motions within the machine are performed, such as:
2.a. Wheel-dressing systems in grinding machines;
2.b. Parallel rotary axes designed for mounting of separate workpieces;
2.c. Co-linear rotary axes designed for manipulating the same workpiece by holding it in a chuck from different ends.
3. Axis nomenclature shall be in accordance with International Standard ISO 841, “Numerical Control Machines—Axis and Motion Nomenclature'.
4. A “tilting spindle” is counted as a rotary axis.
5. Guaranteed “positioning accuracy” levels instead of individual test protocols may
6. The positioning accuracy of “numerically controlled” machine tools is to be determined and presented in accordance with ISO 230/2 (1988).
2B001 does not control special purpose machine tools limited to the manufacture of gears. For such machines, see 2B003.
2B001 does not control special purpose machine tools limited to the manufacture of any of the following parts:
a. Crank shafts or cam shafts;
b. Tools or cutters;
c. Extruder worms;
d. Engraved or faceted jewelry parts.
A machine tool having at least two of the three turning, milling or grinding capabilities (
a. Machine tools for turning, having all of the following characteristics:
a.1. Positioning accuracy with “all compensations available” of less (better) than 6 µm along any linear axis;
a.2. Two or more axes which can be coordinated simultaneously for “contouring control”;
2B001.a does not control turning machines specially designed for the production of contact lenses.
b. Machine tools for milling, having any of the following characteristics:
b.1. Having all of the following:
b.1.a. Positioning accuracy with “all compensations available” of less (better) than 6 µm along any linear axis;
b.1.b. Three linear axes plus one rotary axis which can be coordinated simultaneously for “contouring control”;
b.2. Five or more axes which can be coordinated simultaneously for “contouring control”;
b.3. A positioning accuracy for jig boring machines, with “all compensations available”, of less (better) than 4 µm along any linear axis;
b.4. Fly cutting machines, having all of the following characteristics:
b.4.a. Spindle “run-out” and “camming” less (better) than 0.0004 mm TIR;
b.4.b. Angular deviation of slide movement (yaw, pitch and roll) less (better) than 2 seconds of arc, TIR, over 300 mm of travel.
c. Machine tools for grinding, having any of the following characteristics:
c.1. Having all of the following:
c.1.a. Positioning accuracy with “all compensations available” of less (better) than 4 µm along any linear axis;
c.1.b. Three or more axes which can be coordinated simultaneously for “contouring control”
c.2. Five or more axes which can be coordinated simultaneously for “contouring control”;
2B001.c does not control grinding machines, as follows:
1. Cylindrical external, internal, and external-internal grinding machines having all the following characteristics:
a. Limited to cylindrical grinding; and
b. Limited to a maximum workpiece capacity of 150 mm outside diameter or length.
2. Machines designed specifically as jig grinders that do not have a z-axis or a w-axis, with a positioning accuracy with “all compensations available” less (better) than 4 µm.
3. Surface grinders.
d. Electrical discharge machines (EDM) of the non-wire type which have two or more rotary axes which can be coordinated simultaneously for “contouring control”;
e. Machine tools for removing metals, ceramics or “composites” having all of the following characteristics:
e.1. Removing material by means of any of the following:
e.1.a. Water or other liquid jets, including those employing abrasive additives;
e.1.b. Electron beam;
e.1.c. “Laser” beam;
e.2. Having two or more rotary axes which:
e.2.a. Can be coordinated simultaneously for “contouring control”
e.2.b. Have a positioning accuracy of less (better) than 0.003°;
f. Deep-hole-drilling machines and turning machines modified for deep-hole-drilling, having a maximum depth-of-bore capability exceeding 5,000 mm and specially designed components therefor.
b. Finishing to a roughness less (better) than 100 nm rms.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. Any of the following:
b.1. A maximum working pressure exceeding 207 MPa;
b.2. A controlled thermal environment exceeding 1,773 K (1,500° C);
b.3. A facility for hydrocarbon impregnation and removal of resultant gaseous degradation products.
The inside chamber dimension is that of the chamber in which
a.1. Process modified for one of the following:
a.1.a. Pulsating CVD;
a.1.b. Controlled nucleation thermal deposition (CNTD);
a.1.c. Plasma enhanced or plasma assisted CVD;
a.2. Any of the following:
a.2.a. Incorporating high vacuum (equal to or less than 0.01 Pa) rotating seals;
a.2.b. Incorporating
b. Ion implantation production equipment having beam currents of 5 mA or more;
c. Electron beam physical vapor (EB-PVD) production equipment incorporating power systems rated for over 80 kW, having any of the following:
c.1. A liquid pool level “laser” control system which regulates precisely the ingots feed rate;
c.2. A computer controlled rate monitor operating on the principle of photo-luminescence of the ionized atoms in the evaporant stream to control the deposition rate of a coating containing two or more elements;
d. Plasma spraying production equipment having any of the following characteristics:
d.1. Operating at reduced pressure controlled atmosphere (equal or less than 10 kPa measured above and within 300 mm of the gun nozzle exit) in a vacuum chamber capable of evacuation down to 0.01 Pa prior to the spraying process;
d.2. Incorporating
e. Sputter deposition production equipment capable of current densities of 0.1 mA/mm
f. Cathodic arc deposition equipment incorporating a grid of electromagnets for steering control of the arc spot on the cathode;
g. Ion plating production equipment allowing for the
g.1. Coating thickness on the substrate and rate control;
g.2. Optical characteristics.
b. Linear and angular displacement measuring instruments, as follows:
b.1. Linear displacement measuring instruments having any of the following:
For the purpose of 2B006.b.1 “linear displacement” means the change of distance between the measuring probe and the measured object.
b.1.a. Non-contact type measuring systems with a “resolution” equal to or less (better) than 0.2 μm within a measuring range up to 0.2 mm;
b.1.b. Linear voltage differential transformer systems having all of the following characteristics:
b.1.b.1. “Linearity” equal to or less (better) than 0.1% within a measuring range up to 5 mm;
b.1.b.2. Drift equal to or less (better) than 0.1% per day at a standard ambient test room temperature ±1 K;
b.1.c. Measuring systems having all of the following:
b.1.c.1. Containing a “laser”;
b.1.c.2. Maintaining, for at least 12 hours, over a temperature range of ±1 K around a standard temperature and at a standard pressure, all of the following:
b.1.c.2.a. A “resolution” over their full scale of 0.1 μm or less (better);
b.1.c.2.b. A “measurement uncertainty” equal to or less (better) than (0.2 + L/2,000) μm (L is the measured length in mm);
b.1.d. “Electronic assemblies” specially designed to provide feedback capability in systems controlled by 2B006.b.1.c.
2B006.b.1 does not control measuring interferometer systems, with an automatic control system that is designed to use no feedback techniques, containing a “laser” to measure slide movement errors of machine-tools, dimensional inspection machines or similar equipment.
b.2. Angular displacement measuring instruments having an “angular position deviation” equal to or less (better) than 0.00025 °;
2B006.b.2 does not control optical instruments, such as autocollimators, using collimated light (
c. Equipment for measuring surface irregularities, by measuring optical scatter as a function of angle, with a sensitivity of 0.5 nm or less (better).
The “scene analysis” limitation does not include approximation of the third dimension by viewing at a given angle, or limited grey scale interpretation for the perception of depth or texture for the approved tasks (2
b. Specially designed to comply with national safety standards applicable to explosive munitions environments;
c. Specially designed or rated as radiation-hardened to withstand a total radiation dose greater than 5 × 10
The term Gy (silicon) refers to the energy in Joules per kilogram absorbed by an unshielded silicon sample when exposed to ionizing radiation.
d. Specially designed to operate at altitudes exceeding 30,000m.
b. Rotary position feedback units (
c. “Compound rotary tables” and “tilting spindles”, capable of upgrading, according to the manufacturer's specifications, machine tools to or above the levels controlled by 2B001 to 2B009.
b. A roller force more than 60 kN.
Machines combining the function of spin-forming and flow-forming are for the purpose of 2B009 regarded as flow-forming machines.
a. Armor plate drilling machines, other than radial drilling machines;
b. Armor plate planing machines;
c. Armor plate quenching presses;
d. Centrifugal casting machines capable of casting tubes 6 feet (183 cm) or more in length, with a wall thickness of 2 inches (5 cm) and over;
e. Gun barrel rifling and broaching machines, and tools therefor;
f. Gun barrel rifling machines;
g. Gun barrel trepanning machines;
h. Gun boring and turning machines;
i. Gun honing machines of 6 feet (183 cm) stroke or more;
j. Gun jump screw lathes;
k. Gun rifling machines;
l. Gun straightening presses;
m. Induction hardening machines for tank turret rings and sprockets;
n. Jigs and fixtures and other metal-working implements or accessories of the kinds
o. Small arms chambering machines;
p. Small arms deep hole drilling machines and drills therefor;
q. Small arms rifling machines;
r. Small arms spill boring machines;
s. Tank turret bearing grinding machines.
Licenses are likely to be approved, as administrative exceptions, for export and reexport to Country Group D:1 of equipment used to determine the safety data of explosives, as required by the International Convention on the Transport of Dangerous Goods (C.I.M.) articles 3 and 4 in Annex 1 RID, provided that such equipment will be used only by the railway authorities of current C.I.M. members, or by the Government-accredited testing facilities in those countries, for the testing of explosives to transport safety standards, of the following description:
a. Equipment for determining the ignition and deflagration temperatures;
b. Equipment for steel-shell tests;
c. Drophammers not exceeding 20 kg in weight for determining the sensitivity of explosives to shock;
d. Equipment for determining the friction sensitivity of explosives when exposed to charges not exceeding 36 kg in weight.
b. Designed to achieve and maintain a controlled thermal environment of 873 K (600 °C) or greater; and
c. Possessing a chamber cavity with an inside diameter of 254 mm or greater.
a.1. According to the manufacturer's technical specification, can be equipped with “numerical control” units or a computer control, even when not equipped with such units at delivery;
a.2. Have more than two axes which can be coordinated simultaneously for “contouring control.”
b. Specially designed components for flow-forming machines controlled in 2B009 or 2B109.a.
1. Machines combining the function of spin-forming and flow-forming are for the purpose of 2B109 regarded as flow-forming machines.
2. 2B109 does not control machines that are not usable in the “production” of propulsion components and equipment (
b. Digital controllers, combined with specially designed vibration test “software”, with a real-time bandwidth greater than 5 kHz and designed for use with vibration test systems described in 2B116.a;
c. Vibration thrusters (shaker units), with or without associated amplifiers, capable of imparting a force equal to or greater than 50 kN (11,250 lbs.), measured ‘bare table’, and usable in vibration test systems described in 2B116.a;
d. Test piece support structures and electronic units designed to combine multiple shaker units into a complete shaker system capable of providing an effective combined force equal to or greater than 50 kN, measured ‘bare table’, and usable in vibration test systems described in 2B116.a.
‘bare table’ means a flat table, or surface, with no fixture or fitting.
a.1. Not capable of balancing rotors/assemblies having a mass greater than 3 kg;
a.2. Capable of balancing rotors/assemblies at speeds greater than 12,500 rpm;
a.3. Capable of correcting unbalance in two planes or more; and
a.4. Capable of balancing to a residual specific unbalance of 0.2 g mm per kg of rotor mass.
2B119.a. does not control balancing machines designed or modified for dental or other medical equipment.
b. Indicator heads designed or modified for use with machines specified in 2B119.a.
Indicator heads are sometimes known as balancing instrumentation.
b. Slip rigs capable of transmitting electrical power and/or signal information;
c. Having any of the following characteristics:
c.1. For any single axis having all of the following:
c.1.a. Capable of rates of rotation of 400 degrees/s or more, or 30 degrees/s or less,
c.1.b. A rate resolution equal to or less than 6 degrees/s and an accuracy equal to or less than 0.6 degrees/s; or
c.2. Having a worst-case rate stability equal to or better (less) than plus or minus 0.05% averaged over 10 degrees or more;
c.3. A positioning accuracy equal to or better than 5 arc-second.
2B120 does not control rotary tables designed or modified for machine tools or for medical equipment. For controls on machine tool rotary tables see 2B008.
(2) See also 2B008, 2B120, 7B101 and 7B994.
b. A positioning accuracy equal to or better than 5 arc-second.
2B121 does not control rotary tables designed or modified for machine tools or for medical equipment. For controls on machine tool rotary tables see 2B008.
Item 2B201.a. does not control bar machines (Swissturn), limited to machining only bar feed thru, if maximum bar diameter is equal to or less than 42 mm and there is no capability of mounting chucks. Machines may have drilling and/or milling capabilities for machining parts with diameters less than 42 mm.
b. Machine tools for milling, having any of the following characteristics:
b.1. Positioning accuracies with “all compensations available” equal to or less (better) than 6 µm along any linear axis (overall positioning);
b.2. Two or more contouring rotary axes.
2B201.b does not control milling machines having the following characteristics:
a. X-axis travel greater than 2 m; and
b. Overall positioning accuracy on the x-axis more (worse) than 30 µm.
c. Machine tools for grinding, having any of the following characteristics:
c.1. Positioning accuracies with “all compensations available” equal to or less (better) than 4 µm along any linear axis (overall positioning);
c.2. Two or more contouring rotary axes.
2B201.c does not control the following grinding machines:
a. Cylindrical external, internal, and external-internal grinding machines having all of the following characteristics:
1. Limited to cylindrical grinding;
2. A maximum workpiece outside diameter or length of 150 mm;
3. Not more than two axes that can be coordinated simultaneously for “contouring control”; and
4. No contouring c-axis.
b. Jig grinders with axes limited to x, y, c and a where c axis is used to maintain the grinding wheel normal to the work surface, and the a axis is configured to grind barrel cams;
c. Tool or cutter grinding machines with “software” specially designed for the production of tools or cutters; or
d. Crankshaft or camshaft grinding machines.
a.1. Capable of achieving a maximum working pressure of 69 MPa or greater;
a.2. A chamber cavity with an inside diameter in excess of 152 mm;
b. Dies, molds and controls, specially designed for “isostatic presses” controlled by 2B204.a.
a.1. Two or more axes;
a.2. A one-dimensional length “measurement uncertainty” equal to or less (better) than (1.25 + L/1000) µm tested with a probe of an “accuracy” of less (better) than 0.2 µm (L is the measured length in millimeters) (Ref.: VDI/VDE 2617 Parts 1 and 2);
b. Systems for simultaneously linear-angular inspection of hemishells, having both of the following characteristics:
b.1. “Measurement uncertainty” along any linear axis equal to or less (better) than 3.5 µm per 5 mm;
b.2. “Angular position deviation” equal to or less than 0.02°.
(1) The probe used in determining the measurement uncertainty of a dimensional inspection system shall be described in VDI/VDE 2617 parts 2, 3 and 4.
(2) All parameters of measurement values in this entry represent plus/minus,
c. Angular displacement measuring instruments having an “angular position deviation” equal to or less (better) than 0.00025°;
2B206.c does not control optical instruments, such as autocollimators, using collimated light to detect angular displacement of a mirror.
b. Control units specially designed for any of the “robots” or “end-effectors” controlled by 2B207.a.
a.1. Three or more rollers (active or guiding);
a.2. According to the manufacturer's technical specifications, can be equipped with “numerical control” units or a computer control;
2B209.a includes machines that have only a single roller designed to deform metal, plus two auxiliary rollers that support the mandrel, but do not participate directly in the deformation process.
b. Rotor-forming mandrels designed to form cylindrical rotors of inside diameter between 75 mm and 400 mm.
b. A capability of bridging over the top of a hot cell wall with a thickness of 0.6 m or more (over-the-wall operation).
Remote manipulators provide translation of human operator actions to a remote operating arm and terminal fixture. They may be of “master/slave” type or operated by joystick or keypad.
a.1. Capable of operation above 1,123 K (850 °C);
a.2. Induction coils 600 mm or less in diameter;
a.3. Designed for power inputs of 5 kW or more;
b. Power supplies, with a specified power output of 5 kW or more, specially designed for furnaces controlled by 2B226.a.
a.1. Consumable electrode capabilities between 1,000 cm
a.2. Capable of operating with melting temperatures above 1,973 K (1,700 °C);
b. Electron beam melting furnaces and plasma atomization and melting furnaces, having both of the following characteristics:
b.1. A power of 50 kW or greater;
b.2. Capable of operating with melting temperatures above 1,473 K (1,200 °C);
c. Computer control and monitoring systems specially configured for any of the furnaces controlled by 2B227.a or .b.
2B228.a includes precision mandrels, clamps, and shrink fit machines.
b. Rotor straightening equipment for alignment of gas centrifuge rotor tube sections to a common axis;
The rotor straightening equipment in 2B228.b normally consists of precision measuring probes linked to a computer that subsequently controls the action of, for example, pneumatic rams used for aligning the rotor tube sections.
c. Bellows-forming mandrels and dies for producing single-convolution bellows.
In 2B228.c, the bellows have all of the following characteristics:
1. Inside diameter between 75 mm and 400 mm;
2. Length equal to or greater than 12.7 mm;
3. Single convolution depth greater than 2 mm;
4. Made of high-strength aluminum alloys, maraging steel or high strength “fibrous or filamentary materials”.
a.1. Swing or journal diameter greater than 75 mm;
a.2. Mass capability of from 0.9 to 23 kg;
a.3. Capable of balancing speed of revolution greater than 5,000 r.p.m.;
b. Centrifugal balancing machines designed for balancing hollow cylindrical rotor components and having all of the following characteristics:
b.1. Journal diameter greater than 75 mm;
b.2. Mass capability of from 0.9 to 23 kg;
b.3. Capable of balancing to a residual imbalance equal to or less than 0.01 kg × mm/kg per plane;
b.4. Belt drive type.
b. Having either of the following characteristics:
b.1. A full scale of less than 13 kPa and an “accuracy” of better than ± 1% of full-scale;
b.2. A full scale of 13 kPa or greater and an “accuracy” of better than ± 130 Pa.
b. Pumping speed equal to or greater than 15 m
c. Capable of producing an ultimate vacuum better than 13.3 mPa.
b. Reserved.
(a) specially designed for use in civil applications (e.g., food processing, pulp and paper processing, or water purification); and (b) inappropriate, by the nature of its design, for use in storing, processing, producing or conducting and controlling the flow of chemical weapons precursors controlled by 1C350.
a.1. Alloys with more than 25% nickel and 20% chromium by weight;
a.2. Fluoropolymers;
a.3. Glass (including vitrified or enameled coating or glass lining);
a.4. Nickel or alloys with more than 40% nickel by weight;
a.5. Tantalum or tantalum alloys;
a.6. Titanium or titanium alloys;
a.7. Zirconium or zirconium alloys; or
a.8. Niobium (columbium) or niobium alloys.
b. Agitators for use in reaction vessels or reactors described in 2B350.a, and impellers, blades or shafts designed for such agitators, where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:
b.1. Alloys with more than 25% nickel and 20% chromium by weight;
b.2. Fluoropolymers;
b.3. Glass (including vitrified or enameled coatings or glass lining);
b.4. Nickel or alloys with more than 40% nickel by weight;
b.5. Tantalum or tantalum alloys;
b.6. Titanium or titanium alloys;
b.7. Zirconium or zirconium alloys; or
b.8. Niobium (columbium) or niobium alloys.
c. Storage tanks, containers or receivers with a total internal (geometric) volume greater than 0.1 m
c.1. Alloys with more than 25% nickel and 20% chromium by weight;
c.2. Fluoropolymers;
c.3. Glass (including vitrified or enameled coatings or glass lining);
c.4. Nickel or alloys with more than 40% nickel by weight;
c.5. Tantalum or tantalum alloys;
c.6. Titanium or titanium alloys;
c.7. Zirconium or zirconium alloys; or
c.8. Niobium (columbium) or niobium alloys.
d. Heat exchangers or condensers with a heat transfer surface area of less than 20 m
d.1. Alloys with more than 25% nickel and 20% chromium by weight;
d.2. Fluoropolymers;
d.3. Glass (including vitrified or enameled coatings or glass lining);
d.4. Graphite or carbon-graphite;
d.5. Nickel or alloys with more than 40% nickel by weight;
d.6. Silicon carbide;
d.7. Tantalum or tantalum alloys;
d.8. Titanium or titanium alloys;
d.9. Titanium carbide;
d.10. Zirconium or zirconium alloys; or
d.11. Niobium (columbium) or niobium alloys.
e. Distillation or absorption columns of internal diameter greater than 0.1 m, and liquid distributors, vapor distributors or liquid collectors designed for such distillation or absorption columns, where all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials:
e.1. Alloys with more than 25% nickel and 20% chromium by weight;
e.2. Fluoropolymers;
e.3. Glass (including vitrified or enameled coatings or glass lining);
e.4. Graphite or carbon-graphite;
e.5. Nickel or alloys with more than 40% nickel by weight;
e.6. Tantalum or tantalum alloys;
e.7. Titanium or titanium alloys;
e.8. Zirconium or zirconium alloys; or
e.9. Niobium (columbium) or niobium alloys.
f. Remotely operated filling equipment in which all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials:
f.1. Alloys with more than 25% nickel and 20% chromium by weight; or
f.2. Nickel or alloys with more than 40% nickel by weight.
g. Valves with nominal sizes greater than 1.0 cm (.4 in.), and casings (valve bodies) or preformed casing liners designed for such valves, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:
g.1. Nickel or alloys with more than 40% nickel by weight;
g.2. Alloys with more than 25% nickel and 20% chromium by weight;
g.3. Fluoropolymers;
g.4. Glass or glass lined (including vitrified or enameled coatings);
g.5. Tantalum or tantalum alloys;
g.6. Titanium or titanium alloys;
g.7. Zirconium or zirconium alloys; or
g.8. Niobium (columbium) or niobium alloys.
h. Multi-walled piping incorporating a leak detection port, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:
h.1. Alloys with more than 25% nickel and 20% chromium by weight;
h.2. Fluoropolymers;
h.3. Glass (including vitrified or enameled coatings or glass lining);
h.4. Graphite or carbon-graphite;
h.5. Nickel or alloys with more than 40% nickel by weight;
h.6. Tantalum or tantalum alloys;
h.7. Titanium or titanium alloys;
h.8. Zirconium or zirconium alloys; or
h.9. Niobium (columbium) or niobium alloys.
i. Multiple-seal and seal-less pumps with manufacturer's specified maximum flow-rate greater than 0.6 m
i.1. Alloys with more than 25% nickel and 20% chromium by weight;
i.2. Ceramics;
i.3. Ferrosilicon;
i.4. Fluoropolymers;
i.5. Glass (including vitrified or enameled coatings or glass lining);
i.6. Graphite or carbon-graphite;
i.7. Nickel or alloys with more than 40% nickel by weight;
i.8. Tantalum or tantalum alloys;
i.9. Titanium or titanium alloys;
i.10. Zirconium or zirconium alloys; or
i.11. Niobium (columbium) or niobium alloys.
j. Incinerators designed to destroy chemical warfare agents, chemical weapons precursors controlled by 1C350, or chemical munitions having specially designed waste supply systems, special handling facilities and an average combustion chamber temperature greater than 1000 °C in which all surfaces in the waste supply system that come into direct contact with the waste products are made from or lined with any of the following materials:
j.1. Alloys with more than 25% nickel and 20% chromium by weight;
j.2. Ceramics; or
j.3. Nickel or alloys with more than 40% nickel by weight.
Carbon-graphite is a composition consisting primarily of graphite and amorphous carbon, in which the graphite is 8 percent or more by weight of the composition.
b. Designed for the detection of cholinesterase-inhibiting activity.
P3 or P4 (BL3, BL4, L3, L4) containment levels are as specified in the WHO Laboratory Biosafety Manual (Geneva, 1983).
b. Fermenters capable of cultivation of pathogenic microorganisms, viruses, or for toxin production, without the propagation of aerosols, having a capacity equal to or greater than 20 liters.
Fermenters include bioreactors, chemostats, and continuous-flow systems.
c. Centrifugal separators capable of the continuous separation of pathogenic microorganisms, without the propagation of aerosols, and having all of the following characteristics:
c.1. One or more sealing joints within the steam containment area;
c.2. A flow rate greater than 100 liters per hour;
c.3. Components of polished stainless steel or titanium; and
c.4. Capable of in-situ steam sterilization in a closed state.
Centrifugal separators include decanters.
d. Cross (tangential) flow filtration equipment and accessories, as follows:
d.1. Cross (tangential) flow filtration equipment capable of separation of pathogenic microorganisms, viruses, toxins or cell cultures, without the propagation of aerosols, having all of the following characteristics:
d.1.a. A total filtration area equal to or greater than 1 square meter (1 m
d.1.b. Capable of being sterilized or disinfected in-situ.
N.B.: 2B352.d.1 does not control reverse osmosis equipment, as specified by the manufacturer.
d.2. Cross (tangential) flow filtration components (
In this ECCN, “sterilized” denotes the elimination of all viable microbes from the equipment through the use of either physical (
e. Steam sterilizable freeze-drying equipment with a condenser capacity of 10 kgs of ice or greater in 24 hours, but less than 1,000 kgs of ice in 24 hours.
f. Protective and containment equipment, as follows:
f.1. Protective full or half suits, or hoods dependant upon a tethered external air supply and operating under positive pressure;
This entry does not control suits designed to be worn with self-contained breathing apparatus.
f.2. Class III biological safety cabinets or isolators with similar performance standards,
g. Chambers designed for aerosol challenge testing with microorganisms, viruses, or toxins and having a capacity of 1 m
h. Spraying or fogging systems and components therefor, as follows:
h.1. Complete spraying or fogging systems, specially designed or modified for fitting to aircraft, “lighter than air vehicles,” or “UAVs,” capable of delivering, from a liquid suspension, an initial droplet “VMD” of less than 50 microns at a flow rate of greater than 2 liters per minute;
h.2. Spray booms or arrays of aerosol generating units, specially designed or modified for fitting to aircraft, “lighter than air vehicles,” or “UAVs,” capable of delivering, from a liquid suspension, an initial droplet “VMD” of less than 50 microns at a flow rate of greater than 2 liters per minute;
h.3. Aerosol generating units specially designed for fitting to the systems specified in paragraphs h.1 and h.2 of this ECCN.
1.
2. This ECCN does not control spraying or fogging systems and components, as specified in 2B352.h., that are demonstrated not to be capable of delivering biological agents in the form of infectious aerosols.
3. Droplet size for spray equipment or nozzles specially designed for use on aircraft or “UAVs” should be measured using either of the following methods (pending the adoption of internationally accepted standards):
a. Doppler laser method,
b. Forward laser diffraction method.
a.1. Having four interpolating axes that can be coordinated simultaneously for “contouring control”; or
a.2. Having two or more axes that can be coordinated simultaneously for “contouring control” and a minimum programmable increment better (less) than 0.001 mm;
a.3. “Numerical control” units for machine tools having two, three or four interpolating axes that can be coordinated simultaneously for “contouring control”, and capable of receiving directly (on-line) and processing computer-aided-design (CAD) data for internal preparation of machine instructions;
b. “Motion control boards” specially designed for machine tools and having any of the following characteristics:
b.1. Interpolation in more than four axes;
b.2. Capable of “real time processing” of data to modify tool path, feed rate and spindle data, during the machining operation, by any of the following:
b.2.a. Automatic calculation and modification of part program data for machining in two or more axes by means of measuring cycles and access to source data;
b.2.b. “Adaptive control” with more than one physical variable measured and processed by means of a computing model (strategy) to change one or more machining instructions to optimize the process.
b.3. Capable of receiving and processing CAD data for internal preparation of machine instructions;
c. “Numerically controlled” machine tools that, according to the manufacturer's technical specifications, can be equipped with electronic devices for simultaneous “contouring control” in two or more axes and that have both of the following characteristics:
c.1. Two or more axes that can be coordinated simultaneously for contouring control;
c.2. “Positioning accuracies”, with all compensations available:
c.2.a. Better than 0.020 mm along any linear axis (overall positioning) for grinding machines;
c.2.b. Better than 0.020 mm along any linear axis (overall positioning) for milling machines;
c.2.c. Better than 0.020 mm along any linear axis (overall positioning) for turning machines;
d. Machine tools, as follows, for removing or cutting metals, ceramics or composites, that, according to the manufacturer's technical specifications, can be equipped with electronic devices for simultaneous “contouring control” in two or more axes:
d.1. Machine tools for turning, grinding, milling or any combination thereof, having two or more axes that can be coordinated simultaneously for “contouring control” and having any of the following characteristics:
d.1.a. One or more contouring “tilting spindles”;
2B991.d.1.a. applies to machine tools for grinding or milling only.
d.1.b. “Camming” (axial displacement) in one revolution of the spindle less (better) than 0.0006 mm total indicator reading (TIR);
2B991.d.1.b. applies to machine tools for turning only.
d.1.c. “Run out” (out-of-true running) in one revolution of the spindle less (better) than 0.0006 mm total indicator reading (TIR);
d.1.d. The “positioning accuracies”, with all compensations available, are less (better) than: 0.001° on any rotary axis;
d.2. Electrical discharge machines (EDM) of the wire feed type that have five or more axes that can be coordinated simultaneously for “contouring control”.
a.1. Slide positioning accuracy less (better) than 0.0005 mm per 300 mm of travel;
a.2. Bidirectional slide positioning repeatability less (better) than 0.00025 mm per 300 mm of travel;
a.3. Spindle “run out” and “camming” less (better) than 0.0004 mm total indicator reading (TIR);
a.4. Angular deviation of the slide movement (yaw, pitch and roll) less (better) than 2 seconds of arc, TIR, over full travel;
a.5. Slide perpendicularity less (better) than 0.001 mm per 300 mm of travel;
The bidirectional slide positioning repeatability (R) of an axis is the maximum value of the repeatability of positioning at any position along or around the axis determined using the procedure and under the conditions specified in part 2.11 of ISO 230/2: 1988.
b. Fly cutting machines having all of the following characteristics:
b.1. Spindle “run out” and “camming” less (better) than 0.0004 mm TIR;
b.2. Angular deviation of slide movement (yaw, pitch and roll) less (better) than 2 seconds of arc, TIR, over full travel.
a.1. Two or more axes;
a.2. A measurement uncertainty equal to or less (better) than (3 + L/300) micrometer in any axes (L measured length in mm).
b. Single point diamond cutting tool inserts, having all of the following characteristics:
b.1. Flawless and chip-free cutting edge when magnified 400 times in any direction;
b.2. Cutting radius from 0.1 to 5 mm inclusive;
b.3. Cutting radius out-of-roundness less (better) than 0.002 mm TIR.
c. Specially designed printed circuit boards with mounted components capable of upgrading, according to the manufacturer's specifications, “numerical control” units, machine tools or feedback devices to or above the levels specified in ECCNs 2B991, 2B993, 2B996, 2B997, or 2B998.
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT licensing requirements for this entry. See § 742.19 of the EAR for additional information.
b. Bellows manufacturing equipment, including hydraulic forming equipment and bellows forming dies;
c. Laser welding machines;
d. MIG welders;
e. E-beam welders;
f. Monel equipment, including valves, piping, tanks and vessels;
g. 304 and 316 stainless steel valves, piping, tanks and vessels;
h. Mining and drilling equipment, as follows:
h.1. Large boring equipment capable of drilling holes greater than two feet in diameter;
h.2. Large earth-moving equipment used in the mining industry;
i. Electroplating equipment designed for coating parts with nickel or aluminum;
j. Pumps designed for industrial service and for use with an electrical motor of 5 HP or greater;
k. Vacuum valves, piping, flanges, gaskets and related equipment specially designed for use in high-vacuum service, n.e.s.;
l. Spin forming and flow forming machines, n.e.s.;
m. Centrifugal multiplane balancing machines, n.e.s.;
n. Austenitic stainless steel plate, valves, piping, tanks and vessels.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
2D002 does not control “software” specially designed or modified for the operation of machine tools not controlled by Category 2.
2D002 does not control “software” for items controlled by 2B002. See 2D001 for control of “software” for items controlled by 2B002.
a.1. For “flexible manufacturing units” (FMUs) which consist at least of equipment described in b.1 and b.2 of the definition of “flexible manufacturing unit” contained in part 772 of the EAR;
a.2. Capable of generating or modifying, in “real time processing”, programs or data by using the signals obtained simultaneously by means of at least two detection techniques, such as:
a.2.a. Machine vision (optical ranging);
a.2.b. Infrared imaging;
a.2.c. Acoustical imaging (acoustical ranging);
a.2.d. Tactile measurement;
a.2.e. Inertial positioning;
a.2.f. Force measurement;
a.2.g. Torque measurement.
2D992.a does not control “software” which only provides rescheduling of functionally identical equipment within “flexible manufacturing units” using pre-stored part programs and a pre-stored strategy for the distribution of the part programs.
b. Reserved.
AT applies to entire entry. A license is required for items controlled by this entry to Cuba, Iran and North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine licensing requirements for this entry. See part 746 of the EAR for additional information on Cuba and Iran. See § 742.19 of the EAR for additional information on North Korea.
b. “Technology” for metal-working manufacturing processes, as follows:
b.1. “Technology” for the design of tools, dies or fixtures specially designed for any of the following processes:
b.1.a. “Superplastic forming”;
b.1.b. “Diffusion bonding”;
b.1.c. “Direct-acting hydraulic pressing”;
b.2. Technical data consisting of process methods or parameters as listed below used to control:
b.2.a. “Superplastic forming” of aluminum alloys, titanium alloys or “superalloys”:
b.2.a.1. Surface preparation;
b.2.a.2. Strain rate;
b.2.a.3. Temperature;
b.2.a.4. Pressure;
b.2.b. “Diffusion bonding” of “superalloys” or titanium alloys:
b.2.b.1. Surface preparation;
b.2.b.2. Temperature;
b.2.b.3. Pressure;
b.2.c. “Direct-acting hydraulic pressing” of aluminum alloys or titanium alloys:
b.2.c.1. Pressure;
b.2.c.2. Cycle time;
b.2.d. “Hot isostatic densification” of titanium alloys, aluminum alloys or “superalloys”:
b.2.d.1. Temperature;
b.2.d.2. Pressure;
b.2.d.3. Cycle time;
c. “Technology” for the “development” or “production” of hydraulic stretch-forming machines and dies therefor, for the manufacture of airframe structures;
d. “Technology” for the “development” of generators of machine tool instructions (e.g., part programs) from design data residing inside “numerical control” units;
e. “Technology for the development” of integration “software” for incorporation of expert systems for advanced decision support of shop floor operations into “numerical control” units;
f. “Technology” for the application of inorganic overlay coatings or inorganic surface modification coatings (specified in column 3 of the following table) to non-electronic substrates (specified in column 2 of the following table), by processes specified in column 1 of the following table and defined in the Technical Note.
N.B. This table should be read to control the technology of a particular ‘Coating Process’ only when the ‘Resultant Coating’ in column 3 is in a paragraph directly across from the relevant ‘Substrate’ under column 2. For example, Chemical Vapor Deposition (CVD) coating process technical data are controlled for the application of ‘silicides’ to Carbon-carbon, Ceramic and Metal “matrix” “composites” substrates, but are not controlled for the application of ‘silicides’ to ‘Cemented tungsten carbide (16), Silicon carbide (18)’ substrates. In the second case, the ‘Resultant Coating’ is not listed in the paragraph under column 3 directly across from the paragraph under column 2 listing ‘Cemented tungsten carbide (16), Silicon carbide (18)’.
1. The term ‘coating process’ includes coating repair and refurbishing as well as original coating.
2. The term ‘alloyed aluminide coating’ includes single or multiple-step coatings in which an element or elements are deposited prior to or during application of the aluminide coating, even if these elements are deposited by another coating process. It does not, however, include the multiple use of single-step pack cementation processes to achieve alloyed aluminides.
3. The term ‘noble metal modified aluminide’ coating includes multiple-step coatings in which the noble metal or noble metals are laid down by some other coating process prior to application of the aluminide coating.
4. The term ‘mixtures thereof’ includes infiltrated material, graded compositions, co-deposits and multilayer deposits and are obtained by one or more of the coating processes specified in the Table.
5. MCrAlX refers to a coating alloy where M equals cobalt, iron, nickel or combinations thereof and X equals hafnium, yttrium, silicon, tantalum in any amount or other intentional additions over 0.01 weight percent in various proportions and combinations, except:
a. CoCrAlY coatings which contain less than 22 weight percent of chromium, less than 7 weight percent of aluminum and less than 2 weight percent of yttrium;
b. CoCrAlY coatings which contain 22 to 24 weight percent of chromium, 10 to 12 weight
c. NiCrAlY coatings which contain 21 to 23 weight percent of chromium, 10 to 12 weight percent of aluminum and 0.9 to 1.1 weight percent of yttrium.
6. The term ‘aluminum alloys’ refers to alloys having an ultimate tensile strength of 190 MPa or more measured at 293 K (20° C).
7. The term ‘corrosion resistant steel’ refers to AISI (American Iron and Steel Institute) 300 series or equivalent national standard steels.
8. ‘Refractory metals and alloys’ include the following metals and their alloys: niobium (columbium), molybdenum, tungsten and tantalum.
9. ‘Sensor window materials’, as follows: alumina, silicon, germanium, zinc sulphide, zinc selenide, gallium arsenide, diamond, gallium phosphide, sapphire and the following metal halides: sensor window materials of more than 40 mm diameter for zirconium fluoride and hafnium fluoride.
10. “Technology” for single-step pack cementation of solid airfoils is not controlled by this Category.
11. ‘Polymers’, as follows: polyimide, polyester, polysulfide, polycarbonates and polyurethanes.
12. ‘Modified zirconia’ refers to additions of other metal oxides, (e.g., calcia, magnesia, yttria, hafnia, rare earth oxides) to zirconia in order to stabilize certain crystallographic phases and phase compositions. Thermal barrier coatings made of zirconia, modified with calcia or magnesia by mixing or fusion, are not controlled.
13. ‘Titanium alloys’ refers only to aerospace alloys having an ultimate tensile strength of 900 MPa or more measured at 293 K (20° C).
14. ‘Low-expansion glasses’ refers to glasses which have a coefficient of thermal expansion of 1 × 10
15. ‘Dielectric layers’ coatings constructed of multi-layers of insulator materials in which the interference properties of a design composed of materials of various refractive indices are used to reflect, transmit or absorb various wavelength bands. Dielectric layers refers to more than four dielectric layers or dielectric/metal “composite” layers.
16. ‘Cemented tungsten carbide’ does not include cutting and forming tool materials consisting of tungsten carbide/(cobalt, nickel), titanium carbide/(cobalt, nickel), chromium carbide/nickel-chromium and chromium carbide/nickel.
17. “Technology” specially designed to deposit diamond-like carbon on any of the following is not controlled: magnetic disk drives and heads, equipment for the manufacture of disposables valves for faucets, acoustic diaphragms for speakers, engine parts for automobiles, cutting tools, punching-pressing dies, office automation equipment, microphones or medical devices or molds, for casting or molding of plastics, manufactured from alloys containing less than 5% beryllium.
18. ‘Silicon carbide’ does not include cutting and forming tool materials.
19. Ceramic substrates, as used in this entry, does not include ceramic materials containing 5% by weight, or greater, clay or cement content, either as separate constituents or in combination.
Processes specified in Column 1 of the Table are defined as follows:
a. Chemical Vapor Deposition (CVD) is an overlay coating or surface modification coating process wherein a metal, alloy, “composite”, dielectric or ceramic is deposited upon a heated substrate. Gaseous reactants are decomposed or combined in the vicinity of a substrate resulting in the deposition of the desired elemental, alloy or compound material on the substrate. Energy for this decomposition or chemical reaction process may be provided by the heat of the substrate, a glow discharge plasma, or “laser” irradiation.
CVD includes the following processes: directed gas flow out-of-pack deposition, pulsating CVD, controlled nucleation thermal decomposition (CNTD), plasma enhanced or plasma assisted CVD processes.
Pack denotes a substrate immersed in a powder mixture.
The gaseous reactants used in the out-of-pack process are produced using the same basic reactions and parameters as the pack cementation process, except that the substrate to be coated is not in contact with the powder mixture.
b. Thermal Evaporation-Physical Vapor Deposition (TE-PVD) is an overlay coating process conducted in a vacuum with a pressure less than 0.1 Pa wherein a source of thermal energy is used to vaporize the coating material. This process results in the condensation, or deposition, of the evaporated species onto appropriately positioned substrates. The addition of gases to the vacuum chamber during the coating process to synthesize compound coatings is an ordinary modification of the process. The use of ion or electron beams, or plasma, to activate or assist the coating's deposition is also a common modification in this technique. The use of monitors to provide in-process measurement of optical characteristics and thickness of coatings can be a feature of these processes. Specific TE-PVD processes are as follows:
1. Electron Beam PVD uses an electron beam to heat and evaporate the material which forms the coating;
2. Ion Assisted Resistive Heating PVD employs electrically resistive heating sources in combination with impinging ion beam(s) to produce a controlled and uniform flux of evaporated coating species;
3. “Laser” Vaporization uses either pulsed or continuous wave “laser” beams to vaporize the material which forms the coating;
4. Cathodic Arc Deposition employs a consumable cathode of the material which forms the coating and has an arc discharge established on the surface by a momentary contact of a ground trigger. Controlled motion of arcing erodes the cathode surface creating a highly ionized plasma. The anode can be either a cone attached to the periphery of the cathode, through an insulator, or the chamber. Substrate biasing is used for non line-of-sight deposition.
This definition does not include random cathodic arc deposition with non-biased substrates.
5. Ion Plating is a special modification of a general TE-PVD process in which a plasma or an ion source is used to ionize the species to be deposited, and a negative bias is applied to the substrate in order to facilitate the extraction of the species from the plasma. The introduction of reactive species, evaporation of solids within the process chamber, and the use of monitors to provide in-process measurement of optical characteristics and thicknesses of coatings are ordinary modifications of the process.
c. Pack Cementation is a surface modification coating or overlay coating process wherein a substrate is immersed in a powder mixture (a pack), that consists of:
1. The metallic powders that are to be deposited (usually aluminum, chromium, silicon or combinations thereof);
2. An activator (normally a halide salt);
3. An inert powder, most frequently alumina.
The substrate and powder mixture is contained within a retort which is heated to between 1,030 K (757 °C) to 1,375 K (1,102 °C) for sufficient time to deposit the coating.
d. Plasma Spraying is an overlay coating process wherein a gun (spray torch) which produces and controls a plasma accepts powder or wire coating materials, melts them and propels them towards a substrate, whereon an integrally bonded coating is formed. Plasma spraying constitutes either low pressure plasma spraying or high velocity plasma spraying.
Low pressure means less than ambient atmospheric pressure.
High velocity refers to nozzle-exit gas velocity exceeding 750 m/s calculated at 293 K (20 °C) at 0.1 MPa.
e. Slurry Deposition is a surface modification coating or overlay coating process wherein a metallic or ceramic powder with an organic binder is suspended in a liquid and is applied to a substrate by either spraying, dipping or painting, subsequent air or oven drying, and heat treatment to obtain the desired coating.
f. Sputter Deposition is an overlay coating process based on a momentum transfer phenomenon, wherein positive ions are accelerated by an electric field towards the surface of a target (coating material). The kinetic energy of the impacting ions is sufficient to cause target surface atoms to be released and deposited on an appropriately positioned substrate.
The Table refers only to triode, magnetron or reactive sputter deposition which is used to increase adhesion of the coating and rate of deposition and to radio frequency (RF) augmented sputter deposition used to permit vaporization of non-metallic coating materials.
Low-energy ion beams (less than 5 keV) can be used to activate the deposition.
g. Ion Implantation is a surface modification coating process in which the element to be alloyed is ionized, accelerated through a potential gradient and implanted into the surface region of the substrate. This includes processes in which ion implantation is performed simultaneously with electron beam physical vapor deposition or sputter deposition.
1. “Technology” for pretreatments of the substrates listed in the Table, as follows:
a. Chemical stripping and cleaning bath cycle parameters, as follows:
1. Bath composition;
a. For the removal of old or defective coatings corrosion product or foreign deposits;
b. For preparation of virgin substrates;
2. Time in bath;
3. Temperature of bath;
4. Number and sequences of wash cycles;
b. Visual and macroscopic criteria for acceptance of the cleaned part;
c. Heat treatment cycle parameters, as follows:
1. Atmosphere parameters, as follows:
a. Composition of the atmosphere;
b. Pressure of the atmosphere;
2. Temperature for heat treatment;
3. Time of heat treatment;
d. Substrate surface preparation parameters, as follows:
1. Grit blasting parameters, as follows:
a. Grit composition;
b. Grit size and shape;
c. Grit velocity;
2. Time and sequence of cleaning cycle after grit blast;
3. Surface finish parameters;
4. Application of binders to promote adhesion;
e. Masking technique parameters, as follows:
1. Material of mask;
2. Location of mask;
2. “Technology” for in situ quality assurance techniques for evaluation of the coating processes listed in the Table, as follows:
a. Atmosphere parameters, as follows:
1. Composition of the atmosphere;
2. Pressure of the atmosphere;
b. Time parameters;
c. Temperature parameters;
d. Thickness parameters;
e. Index of refraction parameters;
f. Control of composition;
3. “Technology” for post deposition treatments of the coated substrates listed in the Table, as follows:
a. Shot peening parameters, as follows:
1. Shot composition;
2. Shot size;
3. Shot velocity;
b. Post shot peening cleaning parameters;
c. Heat treatment cycle parameters, as follows:
1. Atmosphere parameters, as follows:
a. Composition of the atmosphere;
b. Pressure of the atmosphere;
2. Time-temperature cycles;
d. Post heat treatment visual and macroscopic criteria for acceptance of the coated substrates;
4. “Technology” for quality assurance techniques for the evaluation of the coated substrates listed in the Table, as follows:
a. Statistical sampling criteria;
b. Microscopic criteria for:
1. Magnification;
2. Coating thickness, uniformity;
3. Coating integrity;
4. Coating composition;
5. Coating and substrates bonding;
6. Microstructural uniformity.
c. Criteria for optical properties assessment (measured as a function of wavelength):
1. Reflectance;
2. Transmission;
3. Absorption;
4. Scatter;
5. “Technology” and parameters related to specific coating and surface modification processes listed in the Table, as follows:
a. For Chemical Vapor Deposition (CVD):
1. Coating source composition and formulation;
2. Carrier gas composition;
3. Substrate temperature;
4. Time-temperature-pressure cycles;
5. Gas control and part manipulation;
b. For Thermal Evaporation-Physical Vapor Deposition (PVD):
1. Ingot or coating material source composition;
2. Substrate temperature;
3. Reactive gas composition;
4. Ingot feed rate or material vaporization rate;
5. Time-temperature-pressure cycles;
6. Beam and part manipulation;
7. “Laser” parameters, as follows:
a. Wave length;
b. Power density;
c. Pulse length;
d. Repetition ratio;
e. Source;
c. For Pack Cementation:
1. Pack composition and formulation;
2. Carrier gas composition;
3. Time-temperature-pressure cycles;
d. For Plasma Spraying:
1. Powder composition, preparation and size distributions;
2. Feed gas composition and parameters;
3. Substrate temperature;
4. Gun power parameters;
5. Spray distance;
6. Spray angle;
7. Cover gas composition, pressure and flow rates;
8. Gun control and part manipulation;
e. For Sputter Deposition:
1. Target composition and fabrication;
2. Geometrical positioning of part and target;
3. Reactive gas composition;
4. Electrical bias;
5. Time-temperature-pressure cycles;
6. Triode power;
7. Part manipulation;
f. For Ion Implantation:
1. Beam control and part manipulation;
2. Ion source design details;
3. Control techniques for ion beam and deposition rate parameters;
4. Time-temperature-pressure cycles.
g. For Ion Plating:
1. Beam control and part manipulation;
2. Ion source design details;
3. Control techniques for ion beam and deposition rate parameters;
4. Time-temperature-pressure cycles;
5. Coating material feed rate and vaporization rate;
6. Substrate temperature;
7. Substrate bias parameters.
AT applies to entire entry. A license is required for items controlled by this entry to Cuba, Iran and North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine licensing requirements for this entry. See part 746 of the EAR for additional information on Cuba and Iran. See § 742.19 of the EAR for additional information on North Korea.
The control status of equipment and components described in 3A001 or 3A002, other than those described in 3A001.a.3 to 3A001.a.10 or 3A001.a.12, which are specially designed for or which have the same functional characteristics as other equipment is determined by the control status of the other equipment.
The control status of integrated circuits described in 3A001.a.3 to 3A001.a.9 or 3A001.a.12 that are unalterably programmed or designed for a specific function for other equipment is determined by the control status of the other equipment.
N.B.: When the manufacturer or applicant cannot determine the control status of the other equipment, the control status of the integrated circuits is determined in 3A001.a.3 to 3A001.a.9 and 3A001.a.12. If the integrated circuit is a silicon-based “microcomputer microcircuit” or microcontroller microcircuit described in 3A001.a.3 having an operand (data) word length of 8 bit or less, the control status of the integrated circuit is determined in 3A001.a.3.
$1500: 3A001.c
$3000: 3A001.b.1, b.2, b.3, .d, .e and .f
$5000: 3A001.a (except.a.1.a and a.5.a when controlled for MT), and .b.4 to b.7
The control status of wafers (finished or unfinished), in which the function has been determined, is to be evaluated against the parameters of 3A001.a.
Integrated circuits include the following types:
“Monolithic integrated circuits”;
“Hybrid integrated circuits”;
“Multichip integrated circuits”;
“Film type integrated circuits”, including silicon-on-sapphire integrated circuits;
“Optical integrated circuits”.
a.1. Integrated circuits, designed or rated as radiation hardened to withstand any of the following:
a.1.a. A total dose of 5 × 10
a.1.b. A dose rate upset of 5 × 10
a.1.c. A fluence (integrated flux) of neutrons (1 MeV equivalent) of 5 × 10
3A001.a.1.c does not apply to Metal Insulator Semiconductors (MIS).
a.2. “Microprocessor microcircuits”, “microcomputer microcircuits”, microcontroller microcircuits, storage integrated circuits manufactured from a compound semiconductor, analog-to-digital converters, digital-to-analog converters, electro-optical or “optical integrated circuits” designed for “signal processing”, field programmable logic devices, neural network integrated circuits, custom integrated circuits for which either the function is unknown or the control status of the equipment in which the integrated circuit will be used in unknown, Fast Fourier Transform (FFT) processors, electrical erasable programmable read-only memories (EEPROMs), flash memories or static random-access memories (SRAMs), having any of the following:
a.2.a. Rated for operation at an ambient temperature above 398 K (125 °C);
a.2.b. Rated for operation at an ambient temperature below 218 K (−55 °C);
a.2.c. Rated for operation over the entire ambient temperature range from 218 K (−55 °C) to 398 K (125 °C);
3A001.a.2 does not apply to integrated circuits for civil automobile or railway train applications.
a.3. “Microprocessor microcircuits”, “micro-computer microcircuits” and microcontroller microcircuits, manufactured from a compound semiconductor and operating at a clock frequency exceeding 40 MHz;
3A001.a.3 includes digital signal processors, digital array processors and digital coprocessors.
a.4. Storage integrated circuits manufactured from a compound semiconductor;
a.5. Analog-to-digital and digital-to-analog converter integrated circuits, as follows:
a.5.a. Analog-to-digital converters having any of the following:
a.5.a.1. A resolution of 8 bit or more, but less than 10 bit, an output rate greater than 500 million words per second;
a.5.a.2 A resolution of 10 bit or more, but less than 12 bit, with an output rate greater than 200 million words per second;
a.5.a.3. A resolution of 12 bit with an output rate greater than 50 million words per second;
a.5.a.4. A resolution of more than 12 bit but equal to or less than 14 bit with an output rate greater than 5 million words per second;
a.5.a.5. A resolution of more than 14 bit with an output rate greater than 1 million words per second.
a.5.b. Digital-to-analog converters with a resolution of 12 bit or more, and a “settling time” of less than 10 ns;
1. A resolution of n bit corresponds to a quantization of 2n levels.
2. The number of bits in the output word is equal to the resolution of the analogue-to-digital converter.
3. The output rate is the maximum output rate of the converter, regardless of architecture or oversampling. Vendors may also refer to the output rate as sampling rate, conversion rate or throughput rate. It is often specified in megahertz (MHz) or mega samples per second (MSPS).
4. For the purpose of measuring output rate, one output word per second is equivalent to one Hertz or one sample per second.
a.6. Electro-optical and “optical integrated circuits” designed for “signal processing” having all of the following:
a.6.a. One or more than one internal “laser” diode;
a.6.b. One or more than one internal light detecting element;
a.6.c. Optical waveguides;
a.7. Field programmable logic devices having any of the following:
a.7.a. An equivalent usable gate count of more than 30,000 (2 input gates);
a.7.b. A typical “basic gate propagation delay time” of less than 0.1 ns;
a.7.c. A toggle frequency exceeding 133 MHz;
3A001.a.7 includes: Simple Programmable Logic Devices (SPLDs), Complex Programmable Logic Devices (CPLDs), Field Programmable Gate Arrays (FPGAs), Field Programmable Logic Arrays (FPLAs), and Field Programmable Interconnects (FPICs).
a.8. [Reserved]
a.9. Neural network integrated circuits;
a.10. Custom integrated circuits for which the function is unknown, or the control status of the equipment in which the integrated circuits will be used is unknown to the manufacturer, having any of the following:
a.10.a. More than 1,000 terminals;
a.10.b. A typical “basic gate propagation delay time” of less than 0.1 ns;
a.10.c. An operating frequency exceeding 3 GHz;
a.11. Digital integrated circuits, other than those described in 3A001.a.3 to 3A001.a.10 and 3A001.a.12, based upon any compound semiconductor and having any of the following:
a.11.a. An equivalent gate count of more than 3,000 (2 input gates);
a.11.b. A toggle frequency exceeding 1.2 GHz;
a.12. Fast Fourier Transform (FFT) processors having a rated execution time for an N-point complex FFT of less than (N log2 N)/20,480 ms, where N is the number of points;
When N is equal to 1,024 points, the formula in 3A001.a.12 gives an execution time of 500 μs.
b. Microwave or millimeter wave components, as follows:
b.1. Electronic vacuum tubes and cathodes, as follows:
3A001.b.1 does not control tubes designed or rated for operation in any frequency band which meets all of the following characteristics:
(a) Does not exceed 31.8 GHz; and
(b) Is “allocated by the ITU” for radio-communications services, but not for radio-determination.
3A001.b.1 does not control non-“space-qualified” tubes which meet all the following characteristics:
(a) An average output power equal to or less than 50 W; and
(b) Designed or rated for operation in any frequency band which meets all of the following characteristics:
(1) Exceeds 31.8 GHz but does not exceed 43.5 GHz; and
(2) Is “allocated by the ITU” for radio-communications services, but not for radio-determination.
b.1.a. Traveling wave tubes, pulsed or continuous wave, as follows:
b.1.a.1. Operating at frequencies exceeding 31.8 GHz;
b.1.a.2. Having a cathode heater element with a turn on time to rated RF power of less than 3 seconds;
b.1.a.3. Coupled cavity tubes, or derivatives thereof, with a “fractional bandwidth” of more than 7% or a peak power exceeding 2.5 kW;
b.1.a.4. Helix tubes, or derivatives thereof, with any of the following characteristics:
b.1.a.4.a. An “instantaneous bandwidth” of more than one octave, and average power (expressed in kW) times frequency (expressed in GHz) of more than 0.5;
b.1.a.4.b. An “instantaneous bandwidth” of one octave or less, and average power (expressed in kW) times frequency (expressed in GHz) of more than 1;
b.1.a.4.c. Being “space qualified”;
b.1.b. Crossed-field amplifier tubes with a gain of more than 17 dB;
b.1.c. Impregnated cathodes designed for electronic tubes producing a continuous emission current density at rated operating conditions exceeding 5 A/cm
b.2. Microwave monolithic integrated circuits (MMIC) power amplifiers having any of the following:
b.2.a. Rated for operation at frequencies exceeding 3.2 GHz up to and including 6 GHz and with an average output power greater than 4W (36 dBm) with a “fractional bandwidth” greater than 15%;
b.2.b. Rated for operation at frequencies exceeding 6 GHz up to and including 16 GHz and with an average output power greater than 1W (30 dBm) with a “fractional bandwidth” greater than 10%;
b.2.c. Rated for operation at frequencies exceeding 16 GHz up to and including 31.8 GHz and with an average output power greater than 0.8W (29 dBm) with a “fractional bandwidth” greater than 10%;
b.2.d. Rated for operation at frequencies exceeding 31.8 GHz up to and including 37.5 GHz;
b.2.e. Rated for operation at frequencies exceeding 37.5 GHz up to and including 43.5 GHz and with an average output power greater than 0.25W (24 dBm) with a “fractional bandwidth” greater than 10%;
b.2.f. Rated for operation at frequencies exceeding 43.5 GHz.
3A001.b.2 does not control broadcast satellite equipment designed or rated to operate in the frequency range of 40.5 to 42.5 GHz.
The control status of the MMIC whose rated operating frequency includes frequencies listed in more than one frequency range, as defined by 3A001.b.2.a through 3A001.b.2.f, is determined by the lowest average output power control threshold.
Notes 1 and 2 following the Category 3 heading for A. Systems, Equipment, and Components mean that 3A001.b.2. does not control MMICs if they are specially designed for other applications, e.g., telecommunications, radar, automobiles.
b.3. Discrete microwave transistors having any of the following:
b.3.a. Rated for operation at frequencies exceeding 3.2 GHz up to and including 6 GHz and having an average output power greater than 60W (47.8 dBm);
b.3.b. Rated for operation at frequencies exceeding 6 GHz up to and including 31.8 GHz and having an average output power greater than 20W (43 dBm);
b.3.c. Rated for operation at frequencies exceeding 31.8 GHz up to and including 37.5 GHz and having an average output power greater than 0.5W (27 dBm);
b.3.d. Rated for operation at frequencies exceeding 37.5 GHz up to and including 43.5 GHz and having an average output power greater than 1W (30 dBm);
b.3.e. Rated for operation at frequencies exceeding 43.5 GHz.
The control status of a transistor whose rated operating frequency includes frequencies listed in more than one frequency range, as defined by 3A001.b.3.a through 3A001.b.3.e, is determined by the lowest average output power control threshold.
b.4. Microwave solid state amplifiers and microwave assemblies/modules containing microwave amplifiers having any of the following:
b.4.a. Rated for operation at frequencies exceeding 3.2 GHz up to and including 6 GHz and with an average output power greater than 60W (47.8 dBm) with a “fractional bandwidth” greater than 15%;
b.4.b. Rated for operation at frequencies exceeding 6 GHz up to and including 31.8 GHz and with an average output power greater than 15W (42 dBm) with a “fractional bandwidth” greater than 10%;
b.4.c. Rated for operation at frequencies exceeding 31.8 GHz up to and including 37.5 GHz;
b.4.d. Rated for operation at frequencies exceeding 37.5 GHz up to and including 43.5 GHz and with an average output power greater than 1W (30 dBm) with a “fractional bandwidth” greater than 10%;
b.4.e. Rated for operation at frequencies exceeding 43.5 GHz;
b.4.f. Rated for operation at frequencies above 3.2 GHz and all of the following:
b.4.f.1. An average output power (in watts), P, greater than 150 divided by the maximum operating frequency (in GHz) squared [P > 150 W*GHz
b.4.f.2. A fractional bandwidth of 5% or greater;
b.4.f.3. Any two sides perpendicular to one another with length d (in cm) equal to or less than 15 divided by the lowest operating frequency in GHz [d ≤15 cm*GHz / f
3.2 GHz should be used as the lowest operating frequency (f
N.B.: MMIC power amplifiers should be evaluated against the criteria in 3A001.b.2.
3A001.b.4. does not control broadcast satellite equipment designed or rated to operate in the frequency range of 40.5 to 42.5 GHz.
The control status of an item whose rated operating frequency includes frequencies listed in more than one frequency range, as defined by 3A001.b.4.a through 3A001.b.4.e, is determined by the lowest average output power control threshold.
b.5. Electronically or magnetically tunable band-pass or band-stop filters having more than 5 tunable resonators capable of tuning across a 1.5:1 frequency band (f
b.5.a. A band-pass bandwidth of more than 0.5% of center frequency;
b.5.b. A band-stop bandwidth of less than 0.5% of center frequency;
b.6. [Reserved]
b.7. Mixers and converters designed to extend the frequency range of equipment described in 3A002.c, 3A002.e or 3A002.f beyond the limits stated therein;
b.8. Microwave power amplifiers containing tubes controlled by 3A001.b and having all of the following:
b.8.a. Operating frequencies above 3 GHz;
b.8.b. An average output power density exceeding 80 W/kg;
b.8.c. A volume of less than 400 cm
3A001.b.8 does not control equipment designed or rated for operation in any frequency band which is “allocated by the ITU” for radio-communications services, but not for radio-determination.
c. Acoustic wave devices, as follows, and specially designed components therefor:
c.1. Surface acoustic wave and surface skimming (shallow bulk) acoustic wave devices (
c.1.a. A carrier frequency exceeding 2.5 GHz;
c.1.b. A carrier frequency exceeding 1 GHz, but not exceeding 2.5 GHz, and having any of the following:
c.1.b.1. A frequency side-lobe rejection exceeding 55 dB;
c.1.b.2. A product of the maximum delay time and the bandwidth (time in μs and bandwidth in MHz) of more than 100;
c.1.b.3. A bandwidth greater than 250 MHz;
c.1.b.4. A dispersive delay of more than 10 μs;
c.1.c. A carrier frequency of 1 GHz or less, having any of the following:
c.1.c.1. A product of the maximum delay time and the bandwidth (time in μs and bandwidth in MHz) of more than 100;
c.1.c.2. A dispersive delay of more than 10 μs;
c.1.c.3. A frequency side-lobe rejection exceeding 55 dB and a bandwidth greater than 50 MHz;
c.2. Bulk (volume) acoustic wave devices (
c.3. Acoustic-optic “signal processing” devices employing interaction between acoustic waves (bulk wave or surface wave) and light waves that permit the direct processing of signals or images, including spectral analysis, correlation or convolution;
d. Electronic devices and circuits containing components, manufactured from “superconductive” materials specially designed for operation at temperatures below the “critical temperature” of at least one of the “superconductive” constituents, with any of the following:
d.1. Current switching for digital circuits using “superconductive” gates with a product of delay time per gate (in seconds) and power dissipation per gate (in watts) of less than 10
d.2. Frequency selection at all frequencies using resonant circuits with Q-values exceeding 10,000;
e. High energy devices, as follows:
e.1. Batteries and photovoltaic arrays, as follows:
3A001.e.1 does not control batteries with volumes equal to or less than 27 cm
e.1.a. Primary cells and batteries having an energy density exceeding 480 Wh/kg and rated for operation in the temperature range from below 243 K (−30 °C) to above 343 K (70 °C);
e.1.b. Rechargeable cells and batteries having an energy density exceeding 150 Wh/kg after 75 charge/discharge cycles at a discharge current equal to C/5 hours (C being the nominal capacity in ampere hours) when operating in the temperature range from below 253 K (−20 °C) to above 333 K (60 °C);
Energy density is obtained by multiplying the average power in watts (average voltage in volts times average current in amperes) by the duration of the discharge in hours to 75% of the open circuit voltage divided by the total mass of the cell (or battery) in kg.
e.1.c. “Space qualified” and radiation hardened photovoltaic arrays with a specific power exceeding 160 W/m
e.2. High energy storage capacitors, as follows:
e.2.a. Capacitors with a repetition rate of less than 10 Hz (single shot capacitors) having all of the following:
e.2.a.1. A voltage rating equal to or more than 5 kV;
e.2.a.2. An energy density equal to or more than 250 J/kg;
e.2.a.3. A total energy equal to or more than 25 kJ;
e.2.b. Capacitors with a repetition rate of 10 Hz or more (repetition rated capacitors) having all of the following:
e.2.b.1. A voltage rating equal to or more than 5 kV;
e.2.b.2. An energy density equal to or more than 50 J/kg;
e.2.b.3. A total energy equal to or more than 100 J;
e.2.b.4. A charge/discharge cycle life equal to or more than 10,000;
e.3. “Superconductive” electromagnets and solenoids specially designed to be fully charged or discharged in less than one second, having all of the following:
3A001.e.3 does not control “superconductive” electromagnets or solenoids specially designed for Magnetic Resonance Imaging (MRI) medical equipment.
e.3.a. Energy delivered during the discharge exceeding 10 kJ in the first second;
e.3.b. Inner diameter of the current carrying windings of more than 250 mm;
e.3.c. Rated for a magnetic induction of more than 8 T or “overall current density” in the winding of more than 300 A/mm
f. Rotary input type shaft absolute position encoders having any of the following:
f.1. A resolution of better than 1 part in 265,000 (18 bit resolution) of full scale;
f.2. An accuracy better than ±2.5 seconds of arc.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a. Recording equipment, as follows, and specially designed test tape therefor:
a.1. Analog instrumentation magnetic tape recorders, including those permitting the recording of digital signals (
a.1.a. A bandwidth exceeding 4 MHz per electronic channel or track;
a.1.b. A bandwidth exceeding 2 MHz per electronic channel or track and having more than 42 tracks; or
a.1.c. A time displacement (base) error, measured in accordance with applicable IRIG or EIA documents, of less than “ 0.1 :s;
Analog magnetic tape recorders specially designed for civilian video purposes are not considered to be instrumentation tape recorders.
a.2. Digital video magnetic tape recorders having a maximum digital interface transfer rate exceeding 360 Mbit/s;
3A002.a.2 does not control digital video magnetic tape recorders specially designed for television recording using a signal format, which may include a compressed signal format, standardized or recommended by the ITU, the IEC, the SMPTE, the EBU, the ETSI, or the IEEE for civil television applications.
a.3. Digital instrumentation magnetic tape data recorders employing helical scan techniques or fixed head techniques, having any of the following:
a.3.a. A maximum digital interface transfer rate exceeding 175 Mbit/s; or
a.3.b. Being “space qualified”;
3A002.a.3 does not control analog magnetic tape recorders equipped with HDDR conversion electronics and configured to record only digital data.
a.4. Equipment, having a maximum digital interface transfer rate exceeding 175 Mbit/s, designed to convert digital video magnetic tape recorders for use as digital instrumentation data recorders;
a.5. Waveform digitizers and transient recorders having all of the following: N.B.: See also 3A292.
a.5.a. Digitizing rates equal to or more than 200 million samples per second and a resolution of 10 bits or more; and
a.5.b. A continuous throughput of 2 Gbit/s or more;
For those instruments with a parallel bus architecture, the continuous throughput rate is the highest word rate multiplied by the number of bits in a word. Continuous throughput is the fastest data rate the instrument can output to mass storage without the loss of any information while sustaining the sampling rate and analog-to-digital conversion.
a.6. Digital instrumentation data recorders, using magnetic disk storage technique, having all of the following:
a.6.a. Digitizing rate equal to or more than 100 million samples per second and a resolution of 8 bits or more; and
a.6.b. A continuous throughput of 1 Gbit/s or more;
b. “Frequency synthesizer” “electronic assemblies” having a “frequency switching time” from one selected frequency to another of less than 1 ms;
c. Radio frequency “signal analyzers”, as follows:
c.1. “Signal analyzers” capable of analyzing any frequencies exceeding 31.8 GHz but not exceeding 37.5 Ghz and having a 3 dB resolution bandwidth (RBW) exceeding 10 MHz;
c.2. “Signal analyzers” capable of analyzing frequencies exceeding 43.5 Ghz;
c.3. “Dynamic signal analyzers” having a “real-time bandwidth” exceeding 500 kHz;
3A002.c.3 does not control those “dynamic signal analyzers” using only constant percentage bandwidth filters (also known as octave or fractional octave filters).
d. Frequency synthesized signal generators producing output frequencies, the accuracy and short term and long term stability of which are controlled, derived from or disciplined by the internal master frequency, and having any of the following:
d.1. A maximum synthesized frequency exceeding 31.8 GHz, but not exceeding 43.5 GHz and rated to generate a pulse duration of less than 100 ns;
d.2. A maximum synthesized frequency exceeding 43.5 GHz;
d.3. A “frequency switching time” from one selected frequency to another of less than 1 ms; or
d.4. A single sideband (SSB) phase noise better than -(126 + 20 log10F−20 log10f) in dBc/Hz, where F is the off-set from the operating frequency in Hz and f is the operating frequency in MHz;
For the purposes of 3A002.d.1., ‘pulse duration’ is defined as the time interval between the leading edge of the pulse achieving 90% of the peak and the trailing edge of the pulse achieving 10% of the peak.
3A002.d does not control equipment in which the output frequency is either produced by the addition or subtraction of two or more crystal oscillator frequencies, or by an addition or subtraction followed by a multiplication of the result.
e. Network analyzers with a maximum operating frequency exceeding 43.5 GHz;
f. Microwave test receivers having all of the following:
f.1. A maximum operating frequency exceeding 43.5 GHz; and
f.2. Being capable of measuring amplitude and phase simultaneously;
g. Atomic frequency standards having any of the following:
g.1. Long-term stability (aging) less (better) than 1 × 10-11/month; or
g.2. Being “space qualified”.
3A002.g.1 does not control non-“space qualified” rubidium standards.
b. Accelerators capable of delivering electromagnetic radiation produced by bremsstrahlung from accelerated electrons of 2 MeV or greater, and systems containing those accelerators, usable for the “missiles” or the subsystems of “missiles”.
3A101.b above does not include equipment specially designed for medical purposes.
a.1. Voltage rating greater than 1.4 kV, energy storage greater than 10 J, capacitance greater than 0.5 µF,
a.2. Voltage rating greater than 750 V, capacitance greater than 0.25 µF,
b. Superconducting solenoidal electromagnets having all of the following characteristics:
b.1. Capable of creating magnetic fields greater than 2 T;
b.2. A ratio of length to inner diameter greater than 2;
b.3. Inner diameter greater than 300 mm;
b.4. Magnetic field uniform to better than 1% over the central 50% of the inner volume;
3A201.b does not control magnets specially designed for and exported “as parts of” medical nuclear magnetic resonance (NMR) imaging systems. The phrase “as part of” does not necessarily mean physical part in the same shipment; separate shipments from different sources are allowed, provided the related export documents clearly specify that the shipments are dispatched “as part of” the imaging systems.
c. Flash X-ray generators or pulsed electron accelerators having either of the following sets of characteristics:
c.1. An accelerator peak electron energy of 500 keV or greater, but less than 25 MeV,
c.2. An accelerator peak electron energy of 25 MeV or greater,
3A201.c does not control accelerators that are component parts of devices designed for purposes other than electron beam or X-ray radiation (electron microscopy, for example) nor those designed for medical purposes.
(1) The “figure of merit” K is defined as: K = 1.7 × 10
(2) “Peak power” = (peak potential in volts) × (peak beam current in amperes).
(3) In machines based on microwave accelerating cavities, the time duration of the beam pulse is the lesser of 1 µs or the duration of the bunched beam packet resulting from one microwave modulator pulse.
(4) In machines based on microwave accelerating cavities, the peak beam current is the average current in the time duration of a bunched beam packet.
b. Capable of operating in the frequency range between 600 and 2000 Hz;
c. Total harmonic distortion below 10%;
d. Frequency control better than 0.1%.
b. Current or voltage stability better than 0.1% over a time period of 8 hours.
b. Current or voltage stability better than 0.1% over a time period of 8 hours.
(2) Also
a.1. Containing three or more electrodes;
a.2. Anode peak voltage rating of 2.5 kV or more;
a.3. Anode peak current rating of 100 A or more;
a.4. Anode delay time of 10 µs or less.
3A228.a includes gas krytron tubes and vacuum sprytron tubes.
b. Triggered spark-gaps having both of the following characteristics:
b.1. An anode delay time of 15 µs or less;
b.2. Rated for a peak current of 500 A or more.
c. Modules or assemblies with a fast switching function having all of the following characteristics:
c.1. Anode peak voltage rating greater than 2 kV;
c.2. Anode peak current rating of 500 A or more;
c.3. Turn-on time of 1 µs or less.
b. Modular electrical pulse generators (pulsers) having all of the following characteristics:
b.1. Designed for portable, mobile, or ruggedized use;
b.2. Enclosed in a dust-tight enclosure;
b.3. Capable of delivering their energy in less than 15 µs;
b.4. Having an output greater than 100 A;
b.5. Having a “rise time” of less than 10 µs into loads of less than 40 ohms;
b.6. No dimension greater than 254 mm;
b.7. Weight less than 25 kg;
b.8. Specified for use over an extended temperature range 223 K (−50 °C) to 373 K (100 °C) or specified as suitable for aerospace applications.
b. “Pulse transition time” less than 500 ps.
b. Utilizing electrostatic acceleration to induce a tritium-deuterium nuclear reaction.
a.1. Exploding bridge (EB);
a.2. Exploding bridge wire (EBW);
a.3. Slapper;
a.4. Exploding foil initiators (EFI);
b. Arrangements using single or multiple detonators designed to nearly simultaneously initiate an explosive surface over an area greater than 5,000 mm
The detonators controlled by this entry all utilize a small electrical conductor (bridge, bridge wire or foil) that explosively vaporizes when a fast, high-current electrical pulse is passed through it. In nonslapper types, the exploding conductor starts a chemical detonation in a contacting high-explosive material, such as PETN
b. Glow discharge mass spectrometers (GDMS);
c. Thermal ionization mass spectrometers (TIMS);
d. Electron bombardment mass spectrometers that have a source chamber constructed from, lined with or plated with materials resistant to UF
e. Molecular beam mass spectrometers having either of the following characteristics:
e.1. A source chamber constructed from, lined with or plated with stainless steel or molybdenum and equipped with a cold trap capable of cooling to 193 K (−80 °C) or less;
e.2. A source chamber constructed from, lined with or plated with materials resistant to UF
f. Mass spectrometers equipped with a microfluorination ion source designed for actinides or actinide fluorides.
b. Modular analog oscilloscope systems having either of the following characteristics:
b.1. A mainframe with a bandwidth of 1 GHz or greater;
b.2. Plug-in modules with an individual bandwidth of 4 GHz or greater;
c. Analog sampling oscilloscopes for the analysis of recurring phenomena with an effective bandwidth greater than 4 GHz;
d. Digital oscilloscopes and transient recorders, using analog-to-digital conversion techniques, capable of storing transients by sequentially sampling single-shot inputs at successive intervals of less than 1 ns (greater than 1 giga-sample per second), digitizing to 8 bits or greater resolution and storing 256 or more samples.
Specially designed components controlled by this item are the following, for analog oscilloscopes:
1. Plug-in units;
2. External amplifiers;
3. Pre-amplifiers;
4. Sampling devices;
5. Cathode ray tubes.
1. Microprocessors with a “Composite Theoretical Performance” (“CTP”) below 550 MTOPS listed in subparagraphs (a)(2) or (a)(3) of this entry may be shipped NLR (No License Required) when destined to North Korea, provided restrictions set forth in other sections of the EAR (
2. See 744.17 of the EAR for additional license requirements for commodities classified as 3A991.a.1.
a.1. A “composite theoretical performance” (“CTP”) of 6,500 million theoretical operations per second (MTOPS) or more and an arithmetic logic unit with an access width of 32 bit or more;
a.2. A clock frequency rate exceeding 25 MHz;
a.3. More than one data or instruction bus or serial communication port that provides a direct external interconnection between parallel “microprocessor microcircuits” with a transfer rate of 2.5 Mbyte/s.
b. Storage integrated circuits, as follows:
b.1. Electrical erasable programmable read-only memories (EEPROMs) with a storage capacity;
b.1.a. Exceeding 16 Mbits per package for flash memory types;
b.1.b. Exceeding either of the following limits for all other EEPROM types:
b.1.b.1. Exceeding 1 Mbit per package;
b.1.b.2. Exceeding 256 kbit per package and a maximum access time of less than 80 ns;
b.2. Static random access memories (SRAMs) with a storage capacity:
b.2.a. Exceeding 1 Mbit per package;
b.2.b. Exceeding 256 kbit per package and a maximum access time of less than 25 ns;
c. Analog-to-digital converters having any of the following:
c.1. A resolution of 8 bit or more, but less than 12 bit, with an output rate greater than 100 million words per second;
c.2. A resolution of 12 bit with an output rate greater than 5 million words per second;
c.3. A resolution of more than 12 bit but equal to or less than 14 bit with an output rate greater than 500 thousand words per second;
c.4. A resolution of more than 14 bit with an output rate greater than 500 thousand words per second.
d. Field programmable logic devices having either of the following:
d.1. An equivalent gate count of more than 5000 (2 input gates);
d.2. A toggle frequency exceeding 100 MHz;
e. Fast Fourier Transform (FFT) processors having a rated execution time for a 1,024 point complex FFT of less than 1 ms.
f. Custom integrated circuits for which either the function is unknown, or the control status of the equipment in which the integrated circuits will be used is unknown to the manufacturer, having any of the following:
f.1. More than 144 terminals;
f.2. A typical “basic propagation delay time” of less than 0.4 ns.
g. Traveling wave tubes, pulsed or continuous wave, as follows:
g.1. Coupled cavity tubes, or derivatives thereof;
g.2. Helix tubes, or derivatives thereof, with any of the following:
g.2.a. An “instantaneous bandwidth” of half an octave or more;
g.2.b. The product of the rated average output power (expressed in kW) and the maximum operating frequency (expressed in GHz) of more than 0.2;
g.2.c. An “instantaneous bandwidth” of less than half an octave;
g.2.d. The product of the rated average output power (expressed in kW) and the maximum operating frequency (expressed in GHz) of more than 0.4;
h. Flexible waveguides designed for use at frequencies exceeding 40 GHz;
i. Surface acoustic wave and surface skimming (shallow bulk) acoustic wave devices (
i.1. A carrier frequency exceeding 1 GHz;
i.2. A carrier frequency of 1 GHz or less;
i.2.a. A frequency side-lobe rejection exceeding 55 Db;
i.2.b. A product of the maximum delay time and bandwidth (time in microseconds and bandwidth in MHz) of more than 100;
i.2.c. A dispersive delay of more than 10 microseconds.
j. Primary cells and batteries having an energy density exceeding 350 Wh/kg and rated for operation in the temperature range from below 243 K (−30 °C) to above 343 K (70 °C);
3A991 .j does not control batteries with volumes equal to or less than 27 cm
Energy density is obtained by multiplying the average power in watts (average voltage in volts times average current in amperes) by the duration of the discharge in hours to 75 percent of the open circuit voltage divided by the total mass of the cell (or battery) in kg.
k. “Superconductive” electromagnets or solenoids specially designed to be fully charged or discharged in less than one minute, having all of the following:
3A991.k does not control “superconductive” electromagnets or solenoids designed for Magnetic Resonance Imaging (MRI) medical equipment.
k.1. Maximum energy delivered during the discharge divided by the duration of the discharge of more than 500 kJ per minute;
k.2. Inner diameter of the current carrying windings of more than 250 mm;
k.3. Rated for a magnetic induction of more than 8T or “overall current density” in the winding of more than 300 A/mm
l. Circuits or systems for electromagnetic energy storage, containing components manufactured from “superconductive” materials specially designed for operation at temperatures below the “critical temperature” of at least one of their “superconductive” constituents, having all of the following:
l.1. Resonant operating frequencies exceeding 1 MHz;
l.2. A stored energy density of 1 MJ/M
l.3. A discharge time of less than 1 ms;
m. Hydrogen/hydrogen-isotope thyratrons of ceramic-metal construction and rate for a peak current of 500 A or more;
n. Digital integrated circuits based on any compound semiconductor having an equivalent gate count of more than 300 (2 input gates).
b. Digital instrumentation magnetic tape data recorders having any of the following characteristics;
b.1. A maximum digital interface transfer rate exceeding 60 Mbit/s and employing helical scan techniques;
b.2. A maximum digital interface transfer rate exceeding 120 Mbit/s and employing fixed head techniques; or
b.3. “Space qualified”;
c. Equipment, with a maximum digital interface transfer rate exceeding 60 Mbit/s, designed to convert digital video magnetic tape recorders for use as digital instrumentation data recorders;
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT licensing requirements for this entry. See § 742.19 of the EAR for additional information.
b. Mass spectrometers n.e.s;
c. All flash x-ray machines, and components of pulsed power systems designed thereof, including Marx generators, high power pulse shaping networks, high voltage capacitors, and triggers;
d. Pulse amplifiers, n.e.s.;
e. Electronic equipment for time delay generation or time interval measurement, as follows:
e.1. Digital time delay generators with a resolution of 50 nanoseconds or less over time intervals of 1 microsecond or greater;
e.2. Multi-channel (three or more) or modular time interval meter and chronometry equipment with resolution of 50 nanoseconds or less over time intervals of 1 microsecond or greater;
f. Chromatography and spectrometry analytical instruments.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. Equipment capable of producing a layer of any material other than silicon with a thickness uniform to less than ±2.5% across a distance of 75 mm or more;
a.2. Metal organic chemical vapor deposition (MOCVD) reactors specially designed for compound semiconductor crystal growth by the chemical reaction between materials controlled by 3C003 or 3C004;
a.3. Molecular beam epitaxial growth equipment using gas or solid sources;
b. Equipment designed for ion implantation, having any of the following:
b.1. A beam energy (accelerating voltage) exceeding 1 MeV;
b.2. Being specially designed and optimized to operate at a beam energy (accelerating voltage of less than 2 keV);
b.3. Direct write capability;
b.4. A beam energy of 65 keV or more and a beam current of 45 mA or more for high energy oxygen implant into a heated semiconductor material “substrate”;
c. Anisotropic plasma dry etching equipment, as follows:
c.1. Equipment with cassette-to-cassette operation and load-locks, and having any of the following:
c.1.a. Designed or optimized to produce critical dimensions of 180 nm or less with ±5% 3 sigma precision;
c.1.b. Designed for generating less than 0.04 particles/cm
c.2. Equipment specially designed for equipment controlled by 3B001.e. and having any of the following:
c.2.a. Designed or optimized to produce critical dimensions of 180 nm or less with ±5% 3 sigma precision;
c.2.b. Designed for generating less than 0.04 particles/cm
d. Plasma enhanced CVD equipment, as follows:
d.1. Equipment with cassette-to-cassette operation and load-locks, and designed according to the manufacturer's specifications or optimized for use in the production of semiconductor devices with critical dimensions of 180 nm or less;
d.2. Equipment specially designed for equipment controlled by 3B001.e. and designed according to the manufacturer's specifications or optimized for use in the production of semiconductor devices with critical dimensions of 180 nm or less;
e. Automatic loading multi-chamber central wafer handling systems, having all of the following:
e.1. Interfaces for wafer input and output, to which more than two pieces of semiconductor processing equipment are to be connected;
e.2. Designed to form an integrated system in a vacuum environment for sequential multiple wafer processing;
3B001.e. does not control automatic robotic wafer handling systems not designed to operate in a vacuum environment.
f. Lithography equipment, as follows:
f.1. Align and expose step and repeat (direct step on wafer) or step and scan (scanner) equipment for wafer processing using photo-optical or X-ray methods, having any of the following:
f.1.a. A light source wavelength shorter than 245 nm;
f.1.b. Capable of producing a pattern with a minimum resolvable feature size of 180 nm or less;
The minimum resolvable feature size is calculated by the following formula:
f.2. Equipment specially designed for mask making or semiconductor device processing using deflected focused electron beam, ion beam or “laser” beam, having any of the following:
f.2.a. A spot size smaller than 0.2 μm;
f.2.b. Being capable of producing a pattern with a feature size of less than 1 μm;
f.2.c. An overlay accuracy of better than ±0.20 μm (3 sigma);
g. Masks and reticles designed for integrated circuits controlled by 3A001;
h. Multi-layer masks with a phase shift layer.
3B001.h. does not control multi-layer masks with a phase shift layer designed for the fabrication of memory devices not controlled by 3A001.
b. [Reserved]
c. For testing microwave integrated circuits controlled by 3A001.b.2.
b. Equipment specially designed for the manufacture of semiconductor devices, integrated circuits and “electronic assemblies”, as follows, and systems incorporating or having the characteristics of such equipment:
3B991.b also controls equipment used or modified for use in the manufacture of other devices, such as imaging devices,
b.1. Equipment for the processing of materials for the manufacture of devices and components as specified in the heading of 3B991.b, as follows:
3B991 does not control quartz furnace tubes, furnace liners, paddles, boats (except specially designed caged boats), bubblers, cassettes or crucibles specially designed for the processing equipment controlled by 3B991.b.1.
b.1.a. Equipment for producing polycrystalline silicon and materials controlled by 3C001;
b.1.b. Equipment specially designed for purifying or processing III/V and II/VI semiconductor materials controlled by 3C001, 3C002, 3C003, or 3C004, except crystal pullers, for which see 3B991.b.1.c below;
b.1.c. Crystal pullers and furnaces, as follows:
3B991.b.1.c does not control diffusion and oxidation furnaces.
b.1.c.1. Annealing or recrystallizing equipment other than constant temperature furnaces employing high rates of energy transfer capable of processing wafers at a rate exceeding 0.005 m
b.1.c.2. “Stored program controlled” crystal pullers having any of the following characteristics:
b.1.c.2.a. Rechargeable without replacing the crucible container;
b.1.c.2.b. Capable of operation at pressures above 2.5 × 10
b.1.c.2.c. Capable of pulling crystals of a diameter exceeding 100 mm;
b.1.d. “Stored program controlled” equipment for epitaxial growth having any of the following characteristics:
b.1.d.1. Capable of producing a silicon layer with a thickness uniform to less than ±2.5% across a distance of 200 mm or more;
b.1.d.2. Capable of producing a layer of any material other than silicon with a thickness uniformity across the wafer of equal to or better than ±3.5%;
b.1.d.3. Rotation of individual wafers during processing;
b.1.e. Molecular beam epitaxial growth equipment;
b.1.f. Magnetically enhanced ‘sputtering' equipment with specially designed integral load locks capable of transferring wafers in an isolated vacuum environment;
b.1.g. Equipment specially designed for ion implantation, ion-enhanced or photo-enhanced diffusion, having any of the following characteristics:
b.1.g.1. Patterning capability;
b.1.g.2. Beam energy (accelerating voltage) exceeding 200 keV;
b.1.g.3 Optimized to operate at a beam energy (accelerating voltage) of less than 10 keV;
b.1.g.4. Capable of high energy oxygen implant into a heated “substrate”;
b.1.h. “Stored program controlled” equipment for the selective removal (etching) by means of anisotropic dry methods (
b.1.h.1. Batch types having either of the following:
b.1.h.1.a. End-point detection, other than optical emission spectroscopy types;
b.1.h.1.b. Reactor operational (etching) pressure of 26.66 Pa or less;
b.1.h.2. Single wafer types having any of the following:
b.1.h.2.a. End-point detection, other than optical emission spectroscopy types;
b.1.h.2.b. Reactor operational (etching) pressure of 26.66 Pa or less;
b.1.h.2.c. Cassette-to-cassette and load locks wafer handling;
1. “Batch types” refers to machines not specially designed for production processing of single wafers. Such machines can process two or more wafers simultaneously with common process parameters,
2. “Single wafer types” refers to machines specially designed for production processing of single wafers. These machines may use automatic wafer handling techniques to load a single wafer into the equipment for processing. The definition includes equipment that can load and process several wafers but where the etching parameters,
b.1.i. “Chemical vapor deposition” (CVD) equipment,
b.1.i.1. “Chemical vapor deposition” equipment operating below 10
b.1.i.2. PECVD equipment operating either below 60 Pa (450 millitorr) or having automatic cassette-to-cassette and load lock wafer handling;
3B991.b.1.i does not control low pressure “chemical vapor deposition” (LPCVD) systems or reactive “sputtering” equipment.
b.1.j. Electron beam systems specially designed or modified for mask making or semiconductor device processing having any of the following characteristics:
b.1.j.1. Electrostatic beam deflection;
b.1.j.2. Shaped, non-Gaussian beam profile;
b.1.j.3. Digital-to-analog conversion rate exceeding 3 MHz;
b.1.j.4. Digital-to-analog conversion accuracy exceeding 12 bit;
b.1.j.5. Target-to-beam position feedback control precision of 1 micrometer or finer;
3B991.b.1.j does not control electron beam deposition systems or general purpose scanning electron microscopes.
b.1.k. Surface finishing equipment for the processing of semiconductor wafers as follows:
b.1.k.1. Specially designed equipment for backside processing of wafers thinner than 100 micrometer and the subsequent separation thereof;
b.1.k.2. Specially designed equipment for achieving a surface roughness of the active surface of a processed wafer with a two-sigma value of 2 micrometer or less, total indicator reading (TIR);
3B991.b.1.k does not control single-side lapping and polishing equipment for wafer surface finishing.
b.1.l. Interconnection equipment which includes common single or multiple vacuum chambers specially designed to permit the integration of any equipment controlled by 3B991 into a complete system;
b.1.m. “Stored program controlled” equipment using “lasers” for the repair or trimming of “monolithic integrated circuits” with either of the following characteristics:
b.1.m.1. Positioning accuracy less than ±1 micrometer;
b.1.m.2. Spot size (kerf width) less than 3 micrometer.
b.2. Masks, mask “substrates”, mask-making equipment and image transfer equipment for the manufacture of devices and components as specified in the heading of 3B991, as follows:
The term “masks” refers to those used in electron beam lithography, X-ray lithography, and ultraviolet lithography, as well as the usual ultraviolet and visible photo-lithography.
b.2.a. Finished masks, reticles and designs therefor, except:
b.2.a.1. Finished masks or reticles for the production of unembargoed integrated circuits;
b.2.a.2. Masks or reticles, having both of the following characteristics:
b.2.a.2.a. Their design is based on geometries of 2.5 micrometer or more;
b.2.a.2.b. The design does not include special features to alter the intended use by means of production equipment or “software”
b.2.b. Mask “substrates” as follows:
b.2.b.1. Hard surface (
b.2.b.2. “Substrates” specially designed for X-ray masks;
b.2.c. Equipment, other than general purpose computers, specially designed for computer aided design (CAD) of semiconductor devices or integrated circuits;
b.2.d. Equipment or machines, as follows, for mask or reticle fabrication:
b.2.d.1. Photo-optical step and repeat cameras capable of producing arrays larger than 100 mm × 100 mm, or capable of producing a single exposure larger than 6 mm × 6 mm in the image (
b.2.d.2. Mask or reticle fabrication equipment using ion or “laser” beam lithography capable of producing line widths of less than 2.5 micrometer;
b.2.d.3. Equipment or holders for altering masks or reticles or adding pellicles to remove defects;
3B991.b.2.d.1 and b.2.d.2 do not control mask fabrication equipment using photo-optical methods which was either commercially available before the 1st January, 1980, or has a performance no better than such equipment.
b.2.e. “Stored program controlled” equipment for the inspection of masks, reticles or pellicles with:
b.2.e.1. A resolution of 0.25 micrometer or finer;
b.2.e.2. A precision of 0.75 micrometer or finer over a distance in one or two coordinates of 63.5 mm or more;
3B991.b.2.e does not control general purpose scanning electron microscopes except when specially designed and instrumented for automatic pattern inspection.
b.2.f. Align and expose equipment for wafer production using photo-optical or X-ray methods,
3B991.b.2.f does not control photo-optical contact and proximity mask align and expose equipment or contact image transfer equipment.
b.2.f.1. Production of a pattern size of less than 2.5 micrometer;
b.2.f.2. Alignment with a precision finer than ±0.25 micrometer (3 sigma);
b.2.f.3. Machine-to-machine overlay no better than ±0.3 micrometer; or
b.2.f.4. A light source wavelength shorter than 400 nm;
b.2.g. Electron beam, ion beam or X-ray equipment for projection image transfer capable of producing patterns less than 2.5 micrometer;
For focused, deflected-beam systems (direct write systems), see 3B991.b.1.j or b.10.
b.2.h. Equipment using “lasers” for direct write on wafers capable of producing patterns less than 2.5 micrometer.
b.3. Equipment for the assembly of integrated circuits, as follows:
b.3.a. “Stored program controlled” die bonders having all of the following characteristics:
b.3.a.1. Specially designed for “hybrid integrated circuits';
b.3.a.2. X-Y stage positioning travel exceeding 37.5 × 37.5 mm; and
b.3.a.3. Placement accuracy in the X-Y plane of finer than ±10 micrometer;
b.3.b. “Stored program controlled” equipment for producing multiple bonds in a single operation (
b.3.c. Semi-automatic or automatic hot cap sealers, in which the cap is heated locally to a higher temperature than the body of the package, specially designed for ceramic microcircuit packages controlled by 3A001 and that have a throughput equal to or more than one package per minute.
3B991.b.3 does not control general purpose resistance type spot welders.
b.4. Filters for clean rooms capable of providing an air environment of 10 or less particles of 0.3 micrometer or smaller per 0.02832 m
b. Equipment specially designed for the inspection or testing of semiconductor devices, integrated circuits and “electronic assemblies”, as follows, and systems incorporating or having the characteristics of such equipment:
3B992.b also controls equipment used or modified for use in the inspection or testing of other devices, such as imaging devices, electro-optical devices, acoustic-wave devices.
b.1. “Stored program controlled” inspection equipment for the automatic detection of defects, errors or contaminants of 0.6 micrometer or less in or on processed wafers, “substrates”, other than printed circuit boards or chips, using optical image acquisition techniques for pattern comparison;
3B992.b.1 does not control general purpose scanning electron microscopes, except when specially designed and instrumented for automatic pattern inspection.
b.2. Specially designed “stored program controlled” measuring and analysis equipment, as follows:
b.2.a. Specially designed for the measurement of oxygen or carbon content in semiconductor materials;
b.2.b. Equipment for line width measurement with a resolution of 1 micrometer or finer;
b.2.c. Specially designed flatness measurement instruments capable of measuring deviations from flatness of 10 micrometer or less with a resolution of 1 micrometer or finer.
b.3. “Stored program controlled” wafer probing equipment having any of the following characteristics:
b.3.a. Positioning accuracy finer than 3.5 micrometer;
b.3.b. Capable of testing devices having more than 68 terminals;
b.3.c. Capable of testing at a frequency exceeding 1 GHz;
b.4. Test equipment as follows:
b.4.a. “Stored program controlled” equipment specially designed for testing discrete semiconductor devices and unencapsulated dice, capable of testing at frequencies exceeding 18 GHz;
Discrete semiconductor devices include photocells and solar cells.
b.4.b. “Stored program controlled” equipment specially designed for testing integrated circuits and “electronic assemblies” thereof, capable of functional testing:
b.4.b.1. At a ‘pattern rate’ exceeding 20 MHz;
b.4.b.2. At a ‘pattern rate’ exceeding 10 MHz but not exceeding 20 MHz and capable of testing packages of more than 68 terminals.
3B992.b.4.b does not control test equipment specially designed for testing:
1. memories;
2. “Assemblies” or a class of “electronic assemblies” for home and entertainment applications; and
3. Electronic components, “assemblies” and integrated circuits not controlled by 3A001 or 3A991 provided such test equipment does not incorporate computing facilities with “user accessible programmability”.
For purposes of 3B992.b.4.b, ‘pattern rate’ is defined as the maximum frequency of digital operation of a tester. It is therefore equivalent to the highest data rate that a tester can provide in non-multiplexed mode. It is also referred to
b.4.c. Equipment specially designed for determining the performance of focal-plane arrays at wavelengths of more than 1,200 nm, using “stored program controlled” measurements or computer aided evaluation and having any of the following characteristics:
b.4.c.1. Using scanning light spot diameters of less than 0.12 mm;
b.4.c.2. Designed for measuring photosensitive performance parameters and for evaluating frequency response, modulation transfer function, uniformity of responsivity or noise;
b.4.c.3. Designed for evaluating arrays capable of creating images with more than 32 × 32 line elements;
b.5. Electron beam test systems designed for operation at 3 keV or below, or “laser” beam systems, for non-contactive probing of powered-up semiconductor devices having any of the following:
b.5.a. Stroboscopic capability with either beam blanking or detector strobing;
b.5.b. An electron spectrometer for voltage measurements with a resolution of less than 0.5 V;
b.5.c. Electrical tests fixtures for performance analysis of integrated circuits;
3B992.b.5 does not control scanning electron microscopes, except when specially designed and instrumented for non-contactive probing of a powered-up semiconductor device.
b.6. “Stored program controlled” multifunctional focused ion beam systems specially designed for manufacturing, repairing, physical layout analysis and testing of masks or semiconductor devices and having either of the following characteristics:
b.6.a. Target-to-beam position feedback control precision of 1 micrometer or finer;
b.6.b. Digital-to-analog conversion accuracy exceeding 12 bit;
b.7. Particle measuring systems employing “lasers” designed for measuring particle size and concentration in air having both of the following characteristics:
b.7.a. Capable of measuring particle sizes of 0.2 micrometer or less at a flow rate of 0.02832 m
b.7.b. Capable of characterizing Class 10 clean air or better.
b. Germanium;
c. Silicon Carbide;
d. III/V compounds of gallium or indium.
b. All resists designed for use with electron beams or ion beams, with a sensitivity of 0.01 µcoulomb/mm
c. All resists designed for use with X-rays, with a sensitivity of 2.5 mJ/mm
d. All resists optimized for surface imaging technologies, including silylated resists.
b. Organo-arsenic, organo-antimony and organo-phosphorus compounds having a purity (inorganic element basis) better than 99.999%.
This entry does not control hydrides containing 20% molar or more of inert gases or hydrogen.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. Equipment controlled by 3B002.
3E001 does not control “technology” for the “development” or “production” of integrated circuits controlled by 3A001.a.3 to a.12, having all of the following:
(a) Using “technology” of 0.5 µm or more;
(b) Not incorporating multi-layer structures.
The term multi-layer structures in Note b does not include devices incorporating a maximum of three metal layers and three polysilicon layers.
3E001 does not control “technology” for the “production” of equipment or components controlled by 3A003.
3E002 does not control “technology” for the “development” or “production” of integrated circuits controlled by 3A001.a.3 to a.12, having all of the following:
(a) Using “technology” of 0.5 µm or more;
(b) Not incorporating multi-layer structures.
The term multi-layer structures in Note b does not include devices incorporating a maximum of three metal layers and three polysilicon layers.
b. Hetero-structure semiconductor devices such as high electron mobility transistors (HEMT), hetero-bipolar transistors (HBT), quantum well and super lattice devices;
3E003.b does not control technology for high electron mobility transistors (HEMT) operating at frequencies lower than 31.8 GHz and hetero-junction bipolar transistors (HBT) operating at frequencies lower than 31.8 GHz.
c. “Superconductive” electronic devices;
d. Substrates of films of diamond for electronic components;
e. Substrates of silicon-on-insulator (SOI) for integrated circuits in which the insulator is silicon dioxide;
f. Substrates of silicon carbide for electronic components;
g. Electronic vacuum tubes operating at frequencies of 31.8 GHz or higher.
Execution time t is expressed in microseconds, TP and “CTP” are expressed in millions of theoretical operations per second (MTOPS) and WL is expressed in bits.
“CTP” is a measure of computational performance given in MTOPS. In calculating the “CTP” of an aggregation of “CEs” the following three steps are required:
1. Calculate the effective calculating rate R for each “CE';
2. Apply the word length adjustment (L) to the effective calculating rate (R), resulting
3. If there is more than one “CE”, combine the TPs, resulting in a “CTP” for the aggregation.
Details for these steps are given in the following sections.
For aggregations of multiple “CEs” that have both shared and unshared memory subsystems, the calculation of “CTP” is completed hierarchically, in two steps: First, aggregate the groups of “CEs” sharing memory; second, calculate the “CTP” of the groups using the calculation method for multiple “CEs” not sharing memory.
“CEs” that are limited to input/output and peripheral functions (
The following table shows the method of calculating the Effective Calculating Rate R for each “CE':
Step 1:
For a pipelined “CE” capable of executing up to one arithmetic or logic operation every clock cycle after the pipeline is full, a pipelined rate can be established. The effective calculating rate (R) for such a “CE” is the faster of the pipelined rate or non-pipelined execution rate.
For a “CE” that performs multiple operations of a specific type in a single cycle (
For the “CE” that does not implement FP add or FP multiply, but that performs FP divide:
If the “CE” implements FP reciprocal but not FP add, FP multiply or FP divide, then
If none of the specified instructions is implemented, the effective FP rate is 0.
In simple logic operations, a single instruction performs a single logic manipulation of no more than two operands of given lengths. In complex logic operations, a single
Rates should be calculated for all supported operand lengths considering both pipelined operations (if supported), and non-pipelined operations using the fastest executing instruction for each operand length based on:
1. Pipelined or register-to-register operations. Exclude extraordinarily short execution times generated for operations on a predetermined operand or operands (for example, multiplication by 0 or 1). If no register-to-register operations are implemented, continue with (2).
2. The faster of register-to-memory or memory-to-register operations; if these also do not exist, then continue with (3).
3. Memory-to-memory.
In each case above, use the shortest execution time certified by the manufacturer.
Step 2:
Adjust the effective rate R (or R′) by the word length adjustment L as follows:
The word length WL used in these calculations is the operand length in bits. (If an operation uses operands of different lengths, select the largest word length.) The combination of a mantissa ALU and an exponent ALU of a floating point processor or unit is considered to be one “CE” with a Word Length (WL) equal to the number of bits in the data representation (typically 32 or 64) for purposes of the “CTP” calculation.
This adjustment is not applied to specialized logic processors that do not use XOR instructions. In this case TP = R.
Select the maximum resulting value of TP for:
Each XP-only “CE” (R
Each FP-only “CE” (R
Each combined FP and XP “CE” (R);
Each simple logic processor not implementing any of the specified arithmetic operations;
Each special logic processor not using any of the specified arithmetic or logic operations.
Step 3:
For a CPU with a single “CE”, “CTP” = TP (for “CEs” performing both fixed and floating point operations TP = max (TP
“CTP” for aggregations of multiple “CEs” operating simultaneously is calculated as follows:
For aggregations that do not allow all of the “CEs” to run simultaneously, the possible combination of “CEs” that provides the largest “CTP” should be used. The TP of each contributing “CE” is to be calculated at its maximum value theoretically possible before the “CTP” of the combination is derived.
A single integrated circuit chip or board assembly may contain multiple “CEs”.
[RESERVED]
[RESERVED]
“CTP” values must be aggregated for multiple “CEs” specially designed to enhance performance by aggregation, operating simultaneously and sharing memory—or multiple memory/”CE”—combinations operating simultaneously utilizing specially designed hardware.
For multiple “CEs” operating simultaneously and sharing memory:
When the “CTP” calculated by the above method does not exceed 194 MTOPS, the following formula may be used to calculate C
Provided:
1. The TP
2. The “CEs” or groups of “CEs” share access to main memory (excluding cache memory) over a single channel;
3. Only one “CE” or group of “CEs” can have use of the channel at any given time.
“CEs” share memory if they access a common segment of solid state memory. This memory may include cache memory, main memory or other internal memory. Peripheral memory devices such as disk drives, tape drives or RAM disks are not included.
For Multiple “CEs” or groups of “CEs” not sharing memory, interconnected by one or more data channels:
The value of C
When calculating a C
Aggregation (of “CEs” or groups of “CEs”) should be from the fastest-to-slowest;
The k
Computers, related equipment and “software” performing telecommunications or “local area network” functions must also be evaluated against the performance characteristics of Category 5, Part 1 (Telecommunications).
Control units that directly interconnect the buses or channels of central processing units, “main storage” or disk controllers are not regarded as telecommunications equipment described in Category 5, Part 1 (Telecommunications).
Computers, related equipment and “software” performing cryptographic, cryptoanalytic, certifiable multi-level security or certifiable user isolation functions, or that limit electromagnetic compatibility (EMC), must also be evaluated against the performance characteristics in Category 5, Part 2 (“Information Security”).
a.1. Rated for operation at an ambient temperature below 228 K (−45 °C) or above 358 K (85 °C);
4A001.a.1. does not apply to computers specially designed for civil automobile or railway train applications.
a.2. Radiation hardened to exceed any of the following specifications:
a.2.a. A total dose of 5 × 10
a.2.b. A dose rate upset of 5 × 10
a.2.c. Single Event Upset of 1 × 10-7 Error/bit/day;
b. Having characteristics or performing functions exceeding the limits in Category 5, Part 2 (“Information Security”).
For all destinations, except those countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR, no license is required (NLR) for computers with an “Adjusted Peak Performance” (“APP”) not exceeding 0.75 Weighted TeraFLOPS (WT) and for “electronic assemblies” described in 4A003.c that are not capable of exceeding an “Adjusted Peak Performance” (“APP”) exceeding 0.75 Weighted TeraFLOPS (WT) in aggregation, except certain transfers as set forth in § 746.3 (Iraq). Computers controlled in this entry for MT reasons are not eligible for NLR.
Special Post Shipment Verification reporting and recordkeeping requirements for exports of computers to destinations in Computer Tier 3 may be found in § 743.2 of the EAR.
4A003 includes the following:
The control status of the “digital computers” and related equipment described in 4A003 is determined by the control status of other equipment or systems provided:
a. The “digital computers” or related equipment are essential for the operation of the other equipment or systems;
b. The “digital computers” or related equipment are not a “principal element” of the other equipment or systems; and
N.B. 1: The control status of “signal processing” or “image enhancement” equipment specially designed for other equipment with functions limited to those required for the other equipment is determined by the control status of the other equipment even if it exceeds the “principal element” criterion.
N.B. 2: For the control status of “digital computers” or related equipment for telecommunications equipment, see Category 5, Part 1 (Telecommunications).
c. The “technology” for the “digital computers” and related equipment is determined by 4E.
a. Designed or modified for “fault tolerance”;
For the purposes of 4A003.a., “digital computers” and related equipment are not considered to be designed or modified for “fault tolerance” if they utilize any of the following:
1. Error detection or correction algorithms in “main storage';
2. The interconnection of two “digital computers” so that, if the active central processing unit fails, an idling but mirroring central processing unit can continue the system's functioning;
3. The interconnection of two central processing units by data channels or by use of shared storage to permit one central processing unit to perform other work until the second central processing unit fails, at which time the first central processing unit takes over in order to continue the system's functioning; or
4. The synchronization of two central processing units by “software” so that one central processing unit recognizes when the other central processing unit fails and recovers tasks from the failing unit.
b. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 0.75 weighted TeraFLOPS (WT);
c. “Electronic assemblies” specially designed or modified to be capable of enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4A003.b.;
4A003.c applies only to “electronic assemblies” and programmable interconnections not exceeding the limit in 4A003.b. when shipped as unintegrated “electronic assemblies”. It does not apply to “electronic assemblies” inherently limited by nature of their design for use as related equipment controlled by 4A003.e.
4A003.c does not control “electronic assemblies” specially designed for a product or family of products whose maximum configuration does not exceed the limit of 4A003.b.
d. [Reserved]
e. Equipment performing analog-to-digital conversions exceeding the limits in 3A001.a.5;
f. [Reserved]
g. Equipment specially designed to provide external interconnection of “digital computers” or associated equipment that allows communications at data rates exceeding 1.25 Gbyte/s.
4A003.g does not control internal interconnection equipment (
b. “Neural computers”;
c. “Optical computers”.
b. Designed as ruggedized or “radiation hardened”.
The control status of the “digital computers” and related equipment described in 4A994 is determined by the control status of other equipment or systems provided:
a. The “digital computers” or related equipment are essential for the operation of the other equipment or systems;
b. The “digital computers” or related equipment are not a “principal element” of the other equipment or systems; and
N.B. 1: The control status of “signal processing” or “image enhancement” equipment specially designed for other equipment with functions limited to those required for the other equipment is determined by the control status of the other equipment even if it exceeds the “principal element” criterion.
N.B. 2: For the control status of “digital computers” or related equipment for telecommunications equipment, see Category 5, Part 1 (Telecommunications).
c. The “technology” for the “digital computers” and related equipment is determined by 4E.
a. Electronic computers and related equipment, and “electronic assemblies” and specially designed components therefor, rated for operation at an ambient temperature above 343 K (70 °C);
b. “Digital computers” having an “Adjusted Peak Performance” (“APP”) equal to or greater than 0.00001 Weighted TeraFLOPS (WT);
c. “Electronic assemblies” that are specially designed or modified to enhance performance by aggregation of processors, as follows:
c.1. Designed to be capable of aggregation in configurations of 16 or more processors; or
c.2. Having a sum of maximum data rates on all channels available for connection to associated processors exceeding 40 million Byte/s;
4A994.c applies only to “electronic assemblies” and programmable interconnections with a “APP” not exceeding the limits in 4A994.b, when shipped as unintegrated “electronic assemblies”. It does not apply to “electronic assemblies” inherently limited by nature of their design for use as related equipment controlled by 4A994.g and 4A994.k.
4A994.c does not control any “electronic assembly” specially designed for a product or family of products whose maximum configuration does not exceed the limits of 4A994.b.
d. Disk drives and solid state storage equipment:
d.1. Magnetic, erasable optical or magneto-optical disk drives with a “maximum bit transfer rate” exceeding 25 million bit/s;
d.2. Solid state storage equipment, other than “main storage” (also known as solid state disks or RAM disks), with a “maximum bit transfer rate” exceeding 36 million bit/s;
e. Input/output control units designed for use with equipment controlled by 4A994.d;
f. Equipment for “signal processing” or “image enhancement” having an “Adjusted Peak Performance” (“APP”) equal to or greater than 0.00001 Weighted TeraFLOPS (WT);
g. Graphics accelerators or graphics coprocessors that exceed a “three dimensional vector rate” of 400,000 or, if supported by 2-D vectors only, a “two dimensional vector rate” of 600,000;
The provisions of 4A994.g do not apply to work stations designed for and limited to:
a. Graphic arts (
b. The display of two-dimensional vectors.
h. Color displays or monitors having more than 120 resolvable elements per cm in the direction of the maximum pixel density;
4A994.h does not control displays or monitors not specially designed for electronic computers.
Displays specially designed for air traffic control (ATC) systems are treated as specially designed components for ATC systems under Category 6.
i. Equipment containing “terminal interface equipment” exceeding the limits in 5A991.
For the purposes of 4A994.i, “terminal interface equipment” includes “local area network” interfaces, modems and other communications interfaces. “Local area network” interfaces are evaluated as “network access controllers”.
j. Equipment specially designed to provide external interconnection of “digital computers” or associated equipment that allows communications at data rates exceeding 80 Mbyte/s.
4A994.j does not control internal interconnection equipment (
k. “Hybrid computers” and “electronic assemblies” and specially designed components therefor, as follows:
k.1. Containing “digital computers” controlled by 4A003;
k.2. Containing analog-to-digital converters having all of the following characteristics:
k.2.a. 32 channels or more; and
k.2.b. A resolution of 14 bit (plus sign bit) or more with a conversion rate of 200,000 conversions/s or more.
b. “Stored program controlled” equipment specially designed for monitoring, grading, exercising or testing controlled rigid magnetic media;
c. Equipment specially designed for the “production” or alignment of heads or head/disk assemblies for controlled rigid magnetic and magneto-optical storage, and electro-mechanical or optical components therefor.
The control status of “software” for the “development”, “production”, or “use” of equipment described in other Categories is dealt with in the appropriate Category. The control status of “software” for equipment described in this Category is dealt with herein.
NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies.
b. “Software”, other than that controlled by 4D001.a, specially designed or modified for the “development” or “production” of:
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 0.04 Weighted TeraFLOPS (WT); or
b.2. “Electronic assemblies” specially designed or modified for enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4D001.b.1.
b. [Reserved]
c. “Software” having characteristics or performing functions exceeding the limits in Category 5, Part 2 (“Information Security”).
b. “Software” allowing the automatic generation of “source codes” from data acquired on line from external sensors described in the Commerce Control List;
c. Operating system “software” specially designed for “real time processing” equipment that guarantees a “global interrupt latency time” of less than 20 microseconds.
NP applies, unless a License Exception is available. See § 742.3(b) of the EAR for information on applicable licensing review policies.
b. “Technology”, other than that controlled by 4E001.a, specially designed or modified for the “development” or “production” of:
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 0.04 Weighted TeraFLOPS (WT); or
b.2. “Electronic assemblies” specially designed or modified for enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4E001.b.1.
b. “Technology”, for the “development” or “production” of equipment designed for “multi-data-stream processing”;
c. “Technology”, “required” for the “development” or “production” of magnetic hard disk drives with a “maximum bit transfer rate” (“MBTR”) exceeding 11 Mbit/s.
APP is an adjusted peak rate at which “digital computers” perform 64-bit or larger floating point additions and multiplications.
APP is expressed in Weighted TeraFLOPS (WT), in units of 1012 adjusted floating point operations per second,
1. For each processor i, determine the peak number of 64-bit or larger floating-point operations, FPOi, performed per cycle for each processor in the “digital computer”.
In determining FPO, include only 64-bit or larger floating point additions and/or multiplications. All floating point operations must be expressed in operations per processor cycle; operations requiring multiple cycles may be expressed in fractional results per cycle. For processors not capable of performing calculations on floating-point operands of 64-bits or more the effective calculating rate R is zero.
2. Calculate the floating point rate R for each processor
3. Calculate APP as
4. For “vector processors”, Wi = 0.9. For non-“vector processors”, Wi = 0.3.
For processors that perform compound operations in a cycle, such as an addition and multiplication, each operation is counted.
For a pipelined processor the effective calculating rate R is the faster of the pipelined rate, once the pipeline is full, or the non-pipelined rate.
The calculating rate R of each contributing processor is to be calculated at its maximum value theoretically possible before the “APP” of the combination is derived. Simultaneous operations are assumed to exist when the computer manufacturer claims concurrent, parallel, or simultaneous operation or execution in a manual or brochure for the computer.
Do not include processors that are limited to input/output and peripheral functions (
APP values are not to be calculated for processor combinations (inter)connected by “Local Area Networks”, Wide Area Networks, I/O shared connections/devices, I/O controllers and any communication interconnection implemented by “software”.
APP values must be calculated for (1) processor combinations containing processors specially designed to enhance performance by aggregation, operating simultaneously and sharing memory; or (2) multiple memory/processor combinations operating simultaneously utilizing specially designed hardware.
A “vector processor” is defined as a processor with built-in instructions that perform multiple calculations on floating-point vectors (one-dimensional arrays of 64-bit or larger numbers) simultaneously, having at least 2 vector functional units and at least 8 vector registers of at least 64 elements each.
The control status of components, “lasers”, test and “production” equipmentand “software” therefor which are specially designed for telecommunications equipment or systems is determined in Category 5, Part I.
2. “Digital computers”, related equipment or “software”, when essential for the operation and support of telecommunications equipment described in this Category, are regarded as specially designed components, provided they are the standard models customarily supplied by the manufacturer. This includes operation, administration, maintenance, engineering or billing computer systems.
The control status of “information security” equipment, “software”, systems, application specific “electronic assemblies”, modules, integrated circuits, components, or functions is determined in Category 5, Part 2 even if they are components or “electronic assemblies” of other equipment.
Commodities and software specially designed for medical end-use that incorporate an item in Category 5, part 2 are not classified in any ECCN in Category 5, part 2.
Category 5, part 2, encryption products, when accompanying their user for the user's personal use or as tools of trade, are eligible for License Exceptions TMP or BAG, subject to the terms and conditions of these License Exceptions.
Cryptography Note: ECCNs 5A002 and 5D002 do not control items that meet all of the following:
a. Generally available to the public by being sold, without restriction, from stock at retail selling points by means of any of the following:
1. Over-the-counter transactions;
2. Mail order transactions;
3. Electronic transactions; or
4. Telephone call transactions;
b. The cryptographic functionality cannot be easily changed by the user;
c. Designed for installation by the user without further substantial support by the supplier; and
d. When necessary, details of the items are accessible and will be provided, upon request, to the appropriate authority in the exporter's country in order to ascertain compliance with conditions described in paragraphs (a) through (c) of this note.
Mass market encryption commodities and software eligible for the Cryptography Note are subject to the notification or review requirements described in § 742.15(b)(1) and (b)(2) of the EAR, unless specifically excluded from these requirements by § 742.15(b)(3) of the EAR. Mass market commodities and software employing a key length greater than 64 bits for the symmetric algorithm must be reviewed in accordance with the requirements of § 742.15(b)(2) of the EAR in order to be released from the “EI” and “NS” controls of ECCN 5A002 or 5D002. All other mass market commodities and software eligible for the Cryptography Note are controlled under ECCN 5A992 or 5D992 (without review) and may be exported or reexported to most destinations without a license, following notification, in accordance with the requirements of § 742.15(b)(1) of the EAR.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. Specially designed to withstand transitory electronic effects or electromagnetic pulse effects, both arising from a nuclear explosion;
a.2. Specially hardened to withstand gamma, neutron or ion radiation;
a.3. Specially designed to operate outside the temperature range from 218 K (−55 °C) to 397 K (124 °C).
5A001.a.3 applies only to electronic equipment.
5A001.a.2 and 5A001.a.3 do not apply to equipment designed or modified for use on board satellites.
b. Telecommunication transmission equipment and systems, and specially designed components and accessories therefor, having any of the following characteristics, functions or features:
b.1 Being underwater communications systems having any of the following characteristics:
b.1.a. An acoustic carrier frequency outside the range from 20 kHz to 60 kHz;
b.1.b. Using an electromagnetic carrier frequency below 30 kHz;
b.1.c. Using electronic beam steering techniques;
b.2. Being radio equipment operating in the 1.5 MHz to 87.5 MHz band and having any of the following characteristics:
b.2.a. Incorporating adaptive techniques providing more than 15 dB suppression of an interfering signal;
b.2.b. Having all of the following:
b.2.b.1. Automatically predicting and selecting frequencies and “total digital transfer rates” per channel to optimize the transmission;
b.2.b.2. Incorporating a linear power amplifier configuration having a capability to support multiple signals simultaneously at an output power of 1 kW or more in the frequency range of 1.5 MHz or more but less than 30 MHz, or 250 W or more in the frequency range of 30 MHz or more but not exceeding 87.5 MHz, over an “instantaneous bandwidth” of one octave or more and with an output harmonic and distortion content of better than −80 dB;
b.3. Being radio equipment employing “spread spectrum” techniques, including “frequency hopping” techniques, not controlled in 5A001.b.4., having any of the following characteristics:
b.3.a. User programmable spreading codes;
b.3.b. A total transmitted bandwidth which is 100 or more times the bandwidth of any one information channel and in excess of 50 kHz;
5A001.b.3.b does not control radio equipment specially designed for use with civil cellular radio-communications systems.
5A001.b.3 does not control equipment operating at an output power of 1.0 Watt or less.
b.4. Being radio equipment employing ultra-wideband modulation techniques, having user programmable channelizing codes, scrambling codes, or network identification codes, having any of the following characteristics:
b.4.a.A bandwidth exceeding 500 MHz;
b.4.b.A “fractional bandwidth” of 20% or more;
b.5. Being digitally controlled radio receivers having all of the following:
b.5.a. More than 1,000 channels;
b.5.b. A “frequency switching time” of less than 1 ms;
b.5.c. Automatic searching or scanning of a part of the electromagnetic spectrum;
b.5.d. Identification of the received signals or the type of transmitter;
5A001.b.5 does not control radio equipment specially designed for use with civil cellular radio-communications systems.
b.6. Employing functions of digital “signal processing” to provide voice coding output at rates of less than 2,400 bit/s.
1. For variable rate voice coding, 5A001.b.6 applies to the voice coding output of continuous speech.
2. For the purpose of 5A001.b.6, “voice coding” is defined as the technique to take samples of human voice and then convert these samples of human voice and then convert these samples into a digital signal taking into account specific characteristics of human speech.
c. Optical fiber communication cables, optical fibers and accessories, as follows:
c.1. Optical fibers of more than 500 m in length specified by the manufacturer as being capable of withstanding a proof test tensile stress of 2 × 10
Proof Test: on-line or off-line production screen testing that dynamically applies a prescribed tensile stress over a 0.5 to 3 m length of fiber at a running rate of 2 to 5 m/s while passing between capstans approximately 150 mm in diameter. The ambient temperature is a nominal 293 K (20 °C) and relative humidity 40%. Equivalent national standards may be used for executing the proof test.
c.2. Optical fiber cables and accessories designed for underwater use.
5A001.c.2 does not control standard civil telecommunication cables and accessories.
N.B. 1: For underwater umbilical cables, and connectors thereof, see 8A002.a.3.
N.B. 2: For fiber-optic hull penetrators or connectors, see 8A002.c.
d. “Electronically steerable phased array antennae” operating above 31.8 GHz.
5A001.d does not control “electronically steerable phased array antennae” for landing systems with instruments meeting ICAO standards covering microwave landing systems (MLS).
e. Radio direction finding equipment operating at frequencies above 30 MHz and having all of the following characteristics, and specially designed components therefor:
e.1. “Instantaneous bandwidth” of 10 MHz or more; and
e.2. Capable of finding a line of bearing (LOB) to non-cooperating radio transmitters with a signal duration of less than 1 ms.
f. Jamming equipment specially designed or modified to intentionally and selectively interfere with, deny, inhibit, degrade or seduce cellular mobile telecommunication services, having any of the following characteristics, and specially designed components therefore:
f.1. Simulating the functions of Radio Access Network (RAN) equipment; or
f.2. Detecting and exploiting specific characteristics of the mobile telecommunications protocol employed (
N.B.: For GNSS jamming equipment see the Munitions List.
EI applies to encryption items transferred from the U.S. Munitions List to the Commerce Control List consistent with E.O. 13026 of November 15, 1996 (61 FR 58767) and pursuant to the Presidential Memorandum of that date. Refer to § 742.15 of this subchapter.
See § 743.1 of the EAR for reporting requirements for exports of commodities controlled under 5A002 and exported under License Exceptions LVS or GOV.
5A002 does not control the following. However, these items are instead controlled under 5A992:
(a) “Personalized smart cards”:
(1) Where the cryptographic capability is restricted for use in equipment or systems excluded from control paragraphs (b) through (f) of this Note;
(2) For general public-use applications where the cryptographic capability is not user-accessible and it is specially designed and limited to allow protection of personal data stored within.
N.B.: If a “personalized smart card” has multiple functions, the control status of each function is assessed individually.
(b) Receiving equipment for radio broadcast, pay television or similar restricted audience broadcast of the consumer type, without digital encryption except that exclusively used for sending the billing or program-related information back to the broadcast providers.
(c) Equipment where the cryptographic capability is not user-accessible and which is specially designed and limited to allow any of the following:
(1) Execution of copy-protected “software”;
(2) Access to any of the following:
(a) Copy-protected contents stored on read-only media;
(b) Information stored in encrypted form on media (e.g., in connection with the protection of intellectual property rights) where the media is offered for sale in identical sets to the public;
(3) Copying control of copyright protected audio/video data; or
(4) Encryption and/or decryption for protection of libraries, design attributes, or associated data for the design of semiconductor devices or integrated circuits;
(d) Cryptographic equipment specially designed and limited for banking use or money transactions;
N.B.: The term “money transactions” includes the collection and settlement of fares or credit functions.
(e) Portable or mobile radiotelephones for civil use (
(f) Cordless telephone equipment not capable of end-to-end encryption where the maximum effective range of unboosted cordless operation (
Parity bits are not included in the key length.
a. Systems, equipment, application specific “electronic assemblies”, modules and integrated circuits for “information security”, as follows, and other specially designed components therefor:
N.B.: For the control of global navigation satellite systems receiving equipment containing or employing decryption (
a.1. Designed or modified to use “cryptography” employing digital techniques performing any cryptographic function other than authentication or digital signature having any of the following:
1. Authentication and digital signature functions include their associated key management function.
2. Authentication includes all aspects of access control where there is no encryption of files or text except as directly related to the protection of passwords, Personal Identification Numbers (PINs) or similar data to prevent unauthorized access.
3. “Cryptography” does not include “fixed” data compression or coding techniques.
5A002.a.1 includes equipment designed or modified to use “cryptography” employing analog principles when implemented with digital techniques.
a.1.a. A “symmetric algorithm” employing a key length in excess of 56-bits;
a.1.b. An “asymmetric algorithm” where the security of the algorithm is based on any of the following:
a.1.b.1. Factorization of integers in excess of 512 bits (
a.1.b.2. Computation of discrete logarithms in a multiplicative group of a finite field of size greater than 512 bits (
a.1.b.3. Discrete logarithms in a group other than mentioned in 5A002.a.1.b.2 in excess of 112 bits (
a.2. Designed or modified to perform cryptanalytic functions;
a.3. [Reserved]
a.4. Specially designed or modified to reduce the compromising emanations of information-bearing signals beyond what is necessary for health, safety or electromagnetic interference standards;
a.5. Designed or modified to use cryptographic techniques to generate the spreading code for “spread spectrum” systems, not controlled in 5A002.a.6., including the hopping code for “frequency hopping” systems;
a.6. Designed or modified to use cryptographic techniques to generate channelizing codes, scrambling codes or network identification codes, for systems using ultra-
a.6.a. A bandwidth exceeding 500 MHz;
a.6.b. A “fractional bandwidth” of 20% or more;
a.7. [Reserved]
a.8. Communications cable systems designed or modified using mechanical, electrical or electronic means to detect surreptitious intrusion;
a.9. Designed or modified to use “quantum cryptography.”
1. ‘Quantum cryptography' A family of techniques for the establishment of a shared key for “cryptography” by measuring the quantum-mechanical properties of a physical system (including those physical properties explicitly governed by quantum optics, quantum field theory, or quantum electrodynamics).
2. “Quantum cryptography” is also known as quantum key distribution (QKD).
5A101 does not control: 1. Telecontrol equipment specially designed to be used for remote control of recreational model planes, boats or vehicles and having an electric field strength of not more than 200 microvolts per meter at a distance of 500 meters;
2. Equipment designed or modified for manned aircraft or satellites;
3. Ground based equipment designed or modified for terrestrial or marine applications;
4. Equipment designed for commercial, civil, or safety of life (
Item 5A101 does not include items not designed or modified for unmanned aerial vehicles or rocket systems (including ballistic missile systems, space launch vehicles, sounding rockets, cruise missile systems, target drones, and reconnaissance drones) capable of a maximum “range” equal to or greater than 300km (
This licensing requirement does not supersede, nor does it implement, construe or limit the scope of any criminal statute, including, but not limited to the Omnibus Safe Streets Act of 1968, as amended.
These items are subject to the United Nations Security Council arms embargo against Rwanda described in § 746.8 of the EAR.
b. Telecommunication transmission equipment and systems, and specially designed components and accessories therefor, having any of the following characteristics, functions or features:
Telecommunication transmission equipment:
a. Categorized as follows, or combinations thereof:
1. Radio equipment (
2. Line terminating equipment;
3. Intermediate amplifier equipment;
4. Repeater equipment;
5. Regenerator equipment;
6. Translation encoders (transcoders);
7. Multiplex equipment (statistical mutiplex included);
8. Modulators/demodulators (modems);
9. Transmultiplex equipment (see CCITT Rec. G701);
10. “Stored program controlled” digital crossconnection equipment;
11. “Gateways” and bridges;
12. “Media access units”;
b. Designed for use in single or multi-channel communication via any of the following:
1. Wire (line);
2. Coaxial cable;
3. Optical fiber cable;
4. Electromagnetic radiation; or
5. Underwater acoustic wave propagation.
b.1. Employing digital techniques, including digital processing of analog signals, and designed to operate at a “digital transfer rate” at the highest multiplex level exceeding 45 Mbit/s or a “total digital transfer rate” exceeding 90 Mbit/s;
5A991.b.1 does not control equipment specially designed to be integrated and operated in any satellite system for civil use.
b.2. Modems using the “bandwidth of one voice channel” with a “data signaling rate” exceeding 9,600 bits per second;
b.3. Being “stored program controlled” digital cross connect equipment with “digital transfer rate” exceeding 8.5 Mbit/s per port.
b.4. Being equipment containing any of the following:
b.4.a. “Network access controllers” and their related common medium having a “digital transfer rate” exceeding 33 Mbit/s;
b.4.b. “Communication channel controllers” with a digital output having a “data signaling rate” exceeding 64,000 bit/s per channel;
If any uncontrolled equipment contains a “network access controller”, it cannot have any type of telecommunications interface, except those described in, but not controlled by 5A991.b.4.
b.5. Employing a “laser” and having any of the following characteristics:
b.5.a. A transmission wavelength exceeding 1,000 nm;
b.5.b. Employing analog techniques and having a bandwidth exceeding 45 MHz;
5A991.b.5.b does not control commercial TV systems.
b.5.c. Employing coherent optical transmission or coherent optical detection techniques (also called optical heterodyne or homodyne techniques);
b.5.d. Employing wavelength division multiplexing techniques;
b.5.e. Performing “optical amplification”;
b.6. Radio equipment operating at input or output frequencies exceeding:
b.6.a. 31 GHz for satellite-earth station applications;
b.6.b. 26.5 GHz for other applications;
5A991.b.6. does not control equipment for civil use when conforming with an
b.7. Being radio equipment employing any of the following:
b.7.a. Quadrature-amplitude-modulation (QAM) techniques above level 4 if the “total digital transfer rate” exceeds 8.5 Mbit/s;
b.7.b. QAM techniques above level 16 if the “total digital transfer rate” is equal to or less than 8.5 Mbit/s;
b.7.c. Other digital modulation techniques and having a “spectral efficiency” exceeding 3 bit/s/Hz;
1. 5A991.b.7 does not control equipment specially designed to be integrated and operated in any satellite system for civil use.
2. 5A991.b.7 does not control radio relay equipment for operation in an ITU allocated band:
a. Having any of the following:
a.1. Not exceeding 960 MHz;
a.2. With a “total digital transfer rate” not exceeding 8.5 Mbit/s;
b. Having a “spectral efficiency” not exceeding 4 bit/s/Hz.
b.8. Providing functions of digital “signal processing” as follows:
b.8.a. Voice coding at rates less than 2,400 bit/s;
b.8.b. Employing circuitry that incorporates “user-accessible programmability” of digital “signal processing” circuits exceeding the limits of 4A003.b.
c. “Stored program controlled” switching equipment and related signaling systems, having any of the following characteristics, functions or features, and specially designed components and accessories therefor:
Statistical multiplexers with digital input and digital output which provide switching are treated as “stored program controlled” switches.
c.1. “Data (message) switching” equipment or systems designed for “packet-mode operation” and assemblies and components therefor, n.e.s.
c.2. Containing “Integrated Services Digital Network” (ISDN) functions and having any of the following:
c.2.a. Switch-terminal (
c.2.b. The capability that a signaling message received by a switch on a given channel that is related to a communication on another channel may be passed through to another switch.
5A991.c does not preclude the evaluation and appropriate actions taken by the receiving switch or unrelated user message traffic on a D channel of ISDN.
c.3. Routing or switching of “datagram” packets;
c.4. Routing or switching of “fast select” packets;
The restrictions in 5A991.c.3 and c.4 do not apply to networks restricted to using only “network access controllers” or to “network access controllers” themselves.
c.5. Multi-level priority and pre-emption for circuit switching;
5A991.c.5 does not control single-level call preemption.
c.6. Designed for automatic hand-off of cellular radio calls to other cellular switches or automatic connection to a centralized subscriber data base common to more than one switch;
c.7. Containing “stored program controlled” digital cross connect equipment with “digital transfer rate” exceeding 8.5 Mbit/s per port.
c.8. “Common channel signaling” operating in either non-associated or quasi-associated mode of operation;
c.9. “Dynamic adaptive routing”;
5A991.c.10 does not control packet switches or routers with ports or lines not exceeding the limits in 5A991.c.10.
c.10. Being packet switches, circuit switches and routers with ports or lines exceeding any of the following:
c.10.a. A “data signaling rate” of 64,000 bit/s per channel for a “communications channel controller”;
5A991.c.10.a does not control multiplex composite links composed only of communication channels not individually controlled by 5A991.b.1.
c.10.b. A “digital transfer rate” of 33 Mbit/s for a “network access controller” and related common media;
c.11. “Optical switching”;
c.12. Employing “Asynchronous Transfer Mode” (“ATM”) techniques.
d. Optical fibers and optical fiber cables of more than 50 m in length designed for single mode operation;
e. Centralized network control having all of the following characteristics:
e.1. Receives data from the nodes;
e.2. Process these data in order to provide control of traffic not requiring operator decisions, and thereby performing “dynamic adaptive routing”;
5A991.e does not preclude control of traffic as a function of predictable statistical traffic conditions.
f. Phased array antennae, operating above 10.5 GHz, containing active elements and distributed components, and designed to permit electronic control of beam shaping and
g. Mobile communications equipment, n.e.s., and assemblies and components therefor; or
h. Radio relay communications equipment designed for use at frequencies equal to or exceeding 19.7 GHz and assemblies and components therefor, n.e.s.
b. “Information security” equipment, n.e.s., (
5B001.a. does not control optical fiber characterization equipment.
b. Equipment and specially designed components or accessories therefor, specially designed for the “development” of any of the following telecommunication transmission or switching equipment:
b.1. Equipment employing digital techniques designed to operate at a “total digital transfer rate” exceeding 15 Gbit/s;
For switching equipment the “total digital transfer rate” is measured at the highest speed port or line.
b.2. Equipment employing a “laser” and having any of the following:
b.2.a. A transmission wavelength exceeding 1750 nm;
b.2.b. Performing “optical amplification”;
b.2.c. Employing coherent optical transmission or coherent optical detection techniques (also called optical heterodyne or homodyne techniques);
b.2.d. Employing analog techniques and having a bandwidth exceeding 2.5 GHz;
5B001.b.2.d. does not include equipment specially designed for the “development” of commercial TV systems.
b.3. Equipment employing “optical switching”;
b.4. Radio equipment employing quadrature-amplitude-modulation (QAM) techniques above level 256;
b.5. Equipment employing “common channel signaling” operating in non-associated mode of operation.
a.1. The “development” of equipment or functions controlled by 5A002, 5B002, 5D002 or 5E002, including measuring or test equipment;
a.2. The “production” of equipment or functions controlled by 5A002, 5B002, 5D002, or 5E002, including measuring, test, repair or production equipment;
b. Measuring equipment specially designed to evaluate and validate the “information security” functions controlled by 5A002 or 5D002.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. “Software” specially designed or modified to support “technology” controlled by 5E001.
c. Specific “software” specially designed or modified to provide characteristics, functions or features of equipment controlled by 5A001 or 5B001.
d. “Software” specially designed or modified for the “development” of any of the following telecommunication transmission or switching equipment:
d.1. Equipment employing digital techniques, including designed to operate at a “total digital transfer rate” exceeding 15 Gbit/s;
For switching equipment the “total digital transfer rate” is measured at the highest speed port or line.
d.2. Equipment employing a “laser” and having any of the following:
d.2.a. A transmission wavelength exceeding 1750 nm;
d.2.b. Employing analog techniques and having a bandwidth exceeding 2.5 GHz;
5D001.d.2.b. does not control “software” specially designed or modified for the “development” of commercial TV systems.
d.3. Equipment employing “optical switching”;
d.4. Radio equipment employing quadrature-amplitude-modulation (QAM) techniques above level 256.
“EI” applies to encryption items transferred from the U.S. Munitions List to the Commerce Control List consistent with Executive Order 13026 of November 15, 1996 (3 CFR, 1996 Comp., p.228) and pursuant to the Presidential Memorandum of that date. Refer to § 742.15 of the EAR.
Encryption software is controlled because of its functional capacity, and not because of any informational value of such software; such software is not accorded the same treatment under the EAR as other “software'; and for export licensing purposes, encryption software is treated under the EAR in the same manner as a commodity included in ECCN 5A002.
Encryption software controlled for “EI” reasons under this entry remains subject to the EAR even when made publicly available in accordance with part 734 of the EAR. See § 740.13(e) of the EAR for information on releasing certain source code (and corresponding object code) which would be considered publicly available from “EI” controls.
After notification to BIS, 56-bit encryption items (including key management products not exceeding 512 bits) and up to (and including) 64-bit mass market encryption commodities and software are released from “EI” and “NS” controls. After a review by BIS, all other mass market encryption commodities and software eligible for the Cryptography Note also may be
b. “Software” specially designed or modified to support “technology” controlled by 5E002.
c. Specific “software” as follows:
c.1. “Software” having the characteristics, or performing or simulating the functions of the equipment controlled by 5A002 or 5B002;
c.2. “Software” to certify “software” controlled by 5D002.c.1.
This licensing requirement does not supersede, nor does it implement, construe or limit the scope of any criminal statute, including, but not limited to the Omnibus Safe Streets Act of 1968, as amended.
These items are subject to the United Nations Security Council arms embargo against Rwanda described in § 746.8 of the EAR.
b. “Software” primarily useful for the “development”, “production”, or “use” of equipment controlled by 5A980.
b. [Reserved]
a.1 “Software” specially designed or modified for the “development”, “production”, or
a.2. “Software” specially designed or modified for the “development”, “production:, or “use” of information security or cryptologic equipment (
b. “Software”, as follows:
b.1. “Software” having the characteristics, or performing or simulating the functions of the equipment controlled by 5A992.a.
b.2. “Software” having the characteristics, or performing or simulating the functions of the equipment controlled by 5A992.b.
c. “Software” designed or modified to protect against malicious computer damage,
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. Specific “technologies”, as follows:
b.1. “Required” “technology” for the “development” or “production” of telecommunications equipment specially designed to be used on board satellites;
b.2. “Technology” for the “development” or “use” of “laser” communication techniques with the capability of automatically acquiring and tracking signals and maintaining communications through exoatmosphere or sub-surface (water) media;
b.3. “Technology” for the “development” of digital cellular radio base station receiving equipment whose reception capabilities that allow multi-band, multi-channel, multi-mode, multi-coding algorithm or multi-protocol operation can be modified by changes in “software”;
b.4. “Technology” for the “development” of “spread spectrum” techniques, including “frequency hopping” techniques.
c. “Technology” according the General Technology Note for the “development” or “production” of any of the following telecommunication transmission or switching equipment, functions or features:
c.1. Equipment employing digital techniques designed to operate at a “total digital transfer rate” exceeding 15 Gbit/s;
For switching equipment the “total digital transfer rate” is measured at the highest speed port or line.
c.2. Equipment employing a “laser” and having any of the following:
c.2.a. A transmission wavelength exceeding 1750 nm;
c.2.b. Performing “optical amplification” using praseodymium-doped fluoride fiber amplifiers (PDFFA);
c.2.c. Employing coherent optical transmission or coherent optical detection techniques (also called optical heterodyne or homodyne techniques);
c.2.d. Employing wavelength division multiplexing techniques exceeding 8 optical carriers in a single optical window;
c.2.e. Employing analog techniques and having a bandwidth exceeding 2.5 GHz;
5E001.c.2.e. does not control “technology” for the “development” or “production” of commercial TV systems.
c.3. Equipment employing “optical switching”;
c.4. Radio equipment having any of the following:
c.4.a. Quadrature-amplitude-modulation (QAM) techniques above level 256;
c.4.b. Operating at input or output frequencies exceeding 31.8 GHz;
5E001.c.4.b. does not control “technology” for the “development” or “production” of equipment designed or modified for operation in any frequency band which is “allocated by the ITU” for radio-communications services, but not for radio-determination.
c.5. Equipment employing “common channel signaling” operating in non-associated mode of operation.
EI applies to encryption items transferred from the U.S. Munitions List to the Commerce Control List consistent with E.O. 13026 of November 15, 1996 (61 FR 58767) and pursuant to the Presidential Memorandum of that date.
These items are subject to the United Nations Security Council arms embargo against Rwanda described in § 746.8 of the EAR.
The list of items controlled is contained in the ECCN heading.
a.1. “Technology” for the processing and application of coatings to optical fiber specially designed to make it suitable for underwater use;
a.2. “Technology” for the “development” of equipment employing ‘Synchronous Digital Hierarchy’ (‘SDH’) or ‘Synchronous Optical Network’ (‘SONET’) techniques.
b. “Technology”, n.e.s., for the “development”, “production” or “use” of “information security” or cryptologic equipment (
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. Active (transmitting or transmitting-and-receiving) systems, equipment and specially designed components therefor, as follows:
6A001.a.1 does not control:
a. Depth sounders operating vertically below the apparatus, not including a scanning function exceeding ±20°, and limited to measuring the depth of water, the distance of submerged or buried objects or fish finding;
b. Acoustic beacons, as follows:
1. Acoustic emergency beacons;
2. Pingers specially designed for relocating or returning to an underwater position.
a.1.a. Wide-swath bathymetric survey systems designed for sea bed topographic mapping, having all of the following:
a.1.a.1. Being designed to take measurements at an angle exceeding 20° from the vertical;
a.1.a.2. Being designed to measure depths exceeding 600 m below the water surface;
a.1.a.3. Being designed to provide any of the following:
a.1.a.3.a. Incorporation of multiple beams any of which is less than 1.9°;
a.1.a.3.b. Data accuracies of better than 0.3% of water depth across the swath averaged over the individual measurements within the swath;
a.1.b. Object detection or location systems having any of the following:
a.1.b.1. A transmitting frequency below 10 kHz;
a.1.b.2. Sound pressure level exceeding 224dB (reference 1 µPa at 1 m) for equipment with an operating frequency in the band from 10 kHz to 24 kHz inclusive;
a.1.b.3. Sound pressure level exceeding 235 dB (reference 1 µPa at 1 m) for equipment with an operating frequency in the band between 24 kHz and 30 kHz;
a.1.b.4. Forming beams of less than 1° on any axis and having an operating frequency of less than 100 kHz;
a.1.b.5. Designed to operate with an unambiguous display range exceeding 5,120 m;
a.1.b.6. Designed to withstand pressure during normal operation at depths exceeding 1,000 m and having transducers with any of the following:
a.1.b.6.a. Dynamic compensation for pressure;
a.1.b.6.b. Incorporating other than lead zirconate titanate as the transduction element;
a.1.c. Acoustic projectors, including transducers, incorporating piezoelectric,
1. The control status of acoustic projectors, including transducers, specially designed for other equipment is determined by the control status of the other equipment.
2. 6A001.a.1.c does not control electronic sources that direct the sound vertically only, or mechanical (
a.1.c.1. An instantaneous radiated acoustic power density exceeding 0.01 mW/mm
a.1.c.2. A continuously radiated acoustic power density exceeding 0.001 Mw/mm
Acoustic power density is obtained by dividing the output acoustic power by the product of the area of the radiating surface and the frequency of operation.
a.1.c.3. Side-lobe suppression exceeding 22 dB;
a.1.d. Acoustic systems, equipment and specially designed components for determining the position of surface vessels or underwater vehicles designed to operate at a range exceeding 1,000 m with a positioning accuracy of less than 10 m rms (root mean square) when measured at a range of 1,000 m;
6A001.a.1.d includes:
a. Equipment using coherent “signal processing” between two or more beacons and the hydrophone unit carried by the surface vessel or underwater vehicle;
b. Equipment capable of automatically correcting speed-of-sound propagation errors for calculation of a point.
a.2. Passive (receiving, whether or not related in normal application to separate active equipment) systems, equipment and specially designed components therefor, as follows:
a.2.a. Hydrophones having any of the following characteristics:
The control status of hydrophones specially designed for other equipment is determined by the control status of the other equipment.
a.2.a.1. Incorporating continuous flexible sensing elements;
a.2.a.2. Incorporating flexible assemblies of discrete sensing elements with either a diameter or length less than 20 mm and with a separation between elements of less than 20 mm;
a.2.a.3. Having any of the following sensing elements:
a.2.a.3.a. Optical fibers;
a.2.a.3.b. Piezoelectric polymer films other than polyvinylidene-fluoride (PVDF) and its co-polymers {P(VDF-TrFE) and P(VDF-TFE)};
a.2.a.3.c. Flexible piezoelectric composites;
a.2.a.4. A hydrophone sensitivity better than −180dB at any depth with no acceleration compensation;
a.2.a.5. When designed to operate at depths exceeding 35 m with acceleration compensation;
a.2.a.6. Designed for operation at depths exceeding 1,000 m;
1. “Piezoelectric polymer film” sensing elements consist of polarized polymer film that is stretched over and attached to a supporting frame or spool (mandrel).
2. ‘Flexible piezoelectric composite’ sensing elements consist of piezoelectric ceramic particles or fibers combined with an electrically insulating, acoustically transparent rubber, polymer or epoxy compound, where the compound is an integral part of the sensing elements.
3. Hydrophone sensitivity is defined as twenty times the logarithm to the base 10 of the ratio of rms output voltage to a 1 V rms reference, when the hydrophone sensor, without a pre-amplifier, is placed in a plane wave acoustic field with an rms pressure of 1 µPa. For example, a hydrophone of −160 dB (reference 1 V per µPa) would yield an output voltage of 10
a.2.b. Towed acoustic hydrophone arrays having any of the following:
a.2.b.1. Hydrophone group spacing of less than 12.5 m or “able to be modified” to have hydrophone group spacing of less than 12.5 m;
a.2.b.2. Designed or ‘able to be modified’ to operate at depths exceeding 35m;
“Able to be modified” in 6A001.a.2.b means having provisions to allow a change of the wiring or interconnections to alter hydrophone group spacing or operating depth limits. These provisions are: spare wiring exceeding 10% of the number of wires, hydrophone group spacing adjustment blocks or internal depth limiting devices that are adjustable or that control more than one hydrophone group.
a.2.b.3. Heading sensors controlled by 6A001.a.2.d;
a.2.b.4. Longitudinally reinforced array hoses;
a.2.b.5. An assembled array of less than 40 mm in diameter;
a.2.b.6. Multiplexed hydrophone group signals designed to operate at depths exceeding 35 m or having an adjustable or removable depth sensing device in order to operate at depths exceeding 35 m;
a.2.b.7. Hydrophone characteristics controlled by 6A001.a.2.a;
a.2.c. Processing equipment, specially designed for towed acoustic hydrophone arrays, having “user accessible programmability” and time or frequency domain processing and correlation, including spectral analysis, digital filtering and beamforming using Fast Fourier or other transforms or processes;
a.2.d. Heading sensors having all of the following:
a.2.d.1. An accuracy of better than ±0.5°;
a.2.d.2. Designed to operate at depths exceeding 35 m or having an adjustable or removable depth sensing device in order to operate at depths exceeding 35 m;
a.2.e. Bottom or bay cable systems having any of the following:
a.2.e.1. Incorporating hydrophones controlled by 6A001.a.2.a;
a.2.e.2. Incorporating multiplexed hydrophone group signal modules having all of the following characteristics:
a.2.e.2.a. Designed to operate at depths exceeding 35 m or having an adjustable or removal depth sensing device in order to operate at depths exceeding 35 m;
a.2.e.2.b. Capable of being operationally interchanged with towed acoustic hydrophone array modules;
a.2.f. Processing equipment, specially designed for bottom or bay cable systems, having “user accessible programmability” and time or frequency domain processing and correlation, including spectral analysis, digital filtering and beamforming using Fast Fourier or other transforms or processes;
b. Correlation-velocity sonar log equipment designed to measure the horizontal speed of the equipment carrier relative to the sea bed at distances between the carrier and the sea bed exceeding 500 m.
Exporters may apply for a commodity jurisdiction request with the Department of State, Directorate of Defense Trade Controls for “space qualified” solid-state detectors defined in 6A002.a.1 and imaging sensors (
a. Optical detectors, as follows:
6A002.a does not control germanium or silicon photodevices.
N.B. Silicon and other material based “microbolometer” non “space-qualified” “focal plane arrays” are only specified under 6A002.a.3.f.
a.1. “Space-qualified” solid-state detectors, as follows:
a.1.a. “Space-qualified” solid-state detectors, having all of the following:
a.1.a.1. A peak response in the wavelength range exceeding 10 nm but not exceeding 300 nm;
a.1.a.2. A response of less than 0.1% relative to the peak response at a wavelength exceeding 400 nm;
a.1.b. “Space-qualified” solid-state detectors, having all of the following:
a.1.b.1. A peak response in the wavelength range exceeding 900 nm but not exceeding 1,200 nm;
a.1.b.2. A response “time constant” of 95 ns or less;
a.1.c. “Space-qualified” solid-state detectors having a peak response in the wavelength range exceeding 1,200 nm but not exceeding 30,000 nm;
a.2. Image intensifier tubes and specially designed components therefor, as follows:
a.2.a. Image intensifier tubes having all of the following:
a.2.a.1. A peak response in the wavelength range exceeding 400 nm but not exceeding 1,050 nm;
a.2.a.2. A microchannel plate for electron image amplification with a hole pitch (center-to-center spacing) of 12 µm or less;
a.2.a.3. Any of the following photocathodes:
a.2.a.3.a. S-20, S-25 or multialkali photocathodes with a luminous sensitivity exceeding 350 µA/lm;
a.2.a.3.b. GaAs or GaInAs photocathodes;
a.2.a.3.c. Other III-V compound semiconductor photocathodes;
6A002.a.2.a.3.c does not apply to compound semiconductor photocathodes with a maximum radiant sensitivity of 10 mA/W or less.
a.2.b. Specially designed components, as follows:
a.2.b.1. Microchannel plates having a hole pitch (center-to-center spacing) of 12 µm or less;
a.2.b.2. GaAs or GaInAs photocathodes;
a.2.b.3. Other III-V compound semiconductor photocathodes;
6A002.a.2.b.3 does not control compound semiconductor photocathodes with a maximum radiant sensitivity of 10 mA/W or less.
a.3. Non-“space-qualified” “focal plane arrays”, as follows:
N.B. Silicon and other material based ‘microbolometer’ non “space-qualified” “focal plane arrays” are only specified in 6A002.a.3.f.
1. Linear or two-dimensional multi-element detector arrays are referred to as “focal plane arrays”.
2. For the purposes of 6A002.a.3. ‘cross scan direction’ is defined as the axis parallel to the linear array of detector elements and the ‘scan direction’ is defined as the axis perpendicular to the linear array of detector elements.
6A002.a.3 includes photoconductive arrays and photovoltaic arrays.
6A002.a.3 does not control:
a. Multi-element (not to exceed 16 elements) encapsulated photoconductive cells using either lead sulphide or lead selenide;
b. Pyroelectric detectors using any of the following:
b.1. Triglycine sulphate and variants;
b.2. Lead-lanthanum-zirconium titanate and variants;
b.3. Lithium tantalate;
b.4. Polyvinylidene fluoride and variants;
b.5. Strontium barium niobate and variants.
a.3.a. Non-“space-qualified” “focal plane arrays”, having all of the following:
a.3.a.1. Individual elements with a peak response within the wavelength range exceeding 900 nm but not exceeding 1,050 nm;
a.3.a.2. A response “time constant” of less than 0.5 ns;
a.3.b. Non-“space-qualified” “focal plane arrays”, having all of the following:
a.3.b.1. Individual elements with a peak response in the wavelength range exceeding 1,050 nm but not exceeding 1,200 nm;
a.3.b.2. A response “time constant” of 95 ns or less;
a.3.c. Non-“space-qualified” non-linear (2-dimensional) “focal plane arrays”, having individual elements with a peak response in the wavelength range exceeding 1,200 nm but not exceeding 30,000 nm;
N.B. Silicon and other material based ‘microbolometer’ non-“space-qualified” “focal plane arrays” are only specified in 6A002.a.3.f.
a.3.d. Non-“space-qualified” linear (1-dimensional) “focal plane arrays”, having all of the following :
a.3.d.1. Individual elements with a peak response in the wavelength range exceeding 1,200 nm but not exceeding 2,500 nm;
a.3.d.2. Any of the following:
a.3.d.2.a. A ratio of scan direction dimension of the detector element to the cross-scan direction dimension of the detector element of less than 3.8;
a.3.d.2.b. Signal processing in the element (SPRITE);
a.3.e. Non-“space-qualified” linear (1-dimensional) “focal plane arrays”, having individual elements with a peak response in the wavelength range exceeding 2,500 nm but not exceeding 30,000 nm.
a.3.f. Non-“space-qualified” non-linear (2-dimensional) infrared “focal plane arrays” based on ‘microbolometer’ material having individual elements with an unfiltered response in the wavelength range equal to or exceeding 8,000 nm but not exceeding 14,000 nm.
1. For the purposes of 6A002.a.3.f. ‘microbolometer’ is defined as a thermal imaging detector that, as a result of a temperature change in the detector caused by the absorption of infrared radiation, is used to generate any usable signal.
2. Non-imaging thermal detectors are not controlled by 6A002.a.3. Imaging thermal detectors are a multi-element array of thermal detectors with the capacity to form a visual, electronic or other representation of an object with sufficient fidelity to enable understanding of its shape or other spatial characteristics, such as height, width, or area. A
3. 6A002.a.3.f captures all non-“space-qualified” non-linear (2-dimensional) infrared “focal plane arrays” based on microbolometer material having individual elements with any unfiltered response between 8,000 nm and 14,000 nm.
b. “Monospectral imaging sensors” and “multispectral imaging sensors” designed for remote sensing applications, having any of the following:
b.1. An Instantaneous-Field-Of-View (IFOV) of less than 200 µrad (microradians);
b.2. Being specified for operation in the wavelength range exceeding 400 nm but not exceeding 30,000 nm and having all the following;
b.2.a. Providing output imaging data in digital format;
b.2.b. Being any of the following:
b.2.b.1. “Space-qualified';
b.2.b.2. Designed for airborne operation, using other than silicon detectors, and having an IFOV of less than 2.5 mrad (milliradians).
c. Direct view imaging equipment operating in the visible or infrared spectrum, incorporating any of the following:
c.1. Image intensifier tubes having the characteristics listed in 6A002.a.2.a;
c.2. “Focal plane arrays” having the characteristics listed in 6A002.a.3.
“Direct view” refers to imaging equipment, operating in the visible or infrared spectrum, that presents a visual image to a human observer without converting the image into an electronic signal for television display, and that cannot record or store the image photographically, electronically or by any other means.
6A002.c does not control the following equipment incorporating other than GaAs or GaInAs photocathodes:
a. Industrial or civilian intrusion alarm, traffic or industrial movement control or counting systems;
b. Medical equipment;
c. Industrial equipment used for inspection, sorting or analysis of the properties of materials;
d. Flame detectors for industrial furnaces;
e. Equipment specially designed for laboratory use.
d. Special support components for optical sensors, as follows:
d.1. “Space-qualified” cryocoolers;
d.2. Non-“space-qualified” cryocoolers, having a cooling source temperature below 218 K (−55 °C), as follows:
d.2.a. Closed cycle type with a specified Mean-Time-To-Failure (MTTF), or Mean-Time-Between-Failures (MTBF), exceeding 2,500 hours;
d.2.b. Joule-Thomson (JT) self-regulating minicoolers having bore (outside) diameters of less than 8 mm;
d.3. Optical sensing fibers specially fabricated either compositionally or structurally, or modified by coating, to be acoustically, thermally, inertially, electromagnetically or nuclear radiation sensitive.
e. “Space qualified” “focal plane arrays” having more than 2,048 elements per array and having a peak response in the wavelength range exceeding 300 nm but not exceeding 900 nm.
Instrumentation cameras, controlled by 6A003.a.3 to 6A003.a.5, with modular structures should be evaluated by their maximum capability, using plug-ins available according to the camera manufacturer's specifications.
a.1. High-speed cinema recording cameras using any film format from 8 mm to 16 mm inclusive, in which the film is continuously advanced throughout the recording period, and that are capable of recording at framing rates exceeding 13,150 frames/s;
6A003.a.1 does not control cinema recording cameras designed for civil purposes.
a.2. Mechanical high speed cameras, in which the film does not move, capable of recording at rates exceeding 1,000,000 frames/s for the full framing height of 35 mm film, or at proportionately higher rates for lesser frame heights, or at proportionately lower rates for greater frame heights;
a.3. Mechanical or electronic streak cameras having writing speeds exceeding 10 mm/µs;
a.4. Electronic framing cameras having a speed exceeding 1,000,000 frames/s;
a.5. Electronic cameras, having all of the following:
a.5.a. An electronic shutter speed (gating capability) of less than 1 µs per full frame;
a.5.b. A read out time allowing a framing rate of more than 125 full frames per second.
a.6. Plug-ins, having all of the following characteristics:
a.6.a. Specially designed for instrumentation cameras which have modular structures and that are controlled by 6A003.a;
a.6.b. Enabling these cameras to meet the characteristics specified in 6A003.a.3, 6A003.a.4 or 6A003.a.5, according to the manufacturer's specifications.
b. Imaging cameras, as follows:
6A003.b does not control television or video cameras specially designed for television broadcasting.
b.1. Video cameras incorporating solid state sensors, having a peak response in the wavelength range exceeding 10nm, but not exceeding 30,000 nm and having all of the following:
b.1.a. Having any of the following:
b.1.a.1. More than 4 × 10
b.1.a.2. More than 4 × 10
b.1.a.3. More than 12 × 10
b.1.b. Having any of the following:
b.1.b.1. Optical mirrors controlled by 6A004.a.;
b.1.b.2. Optical control equipment controlled by 6A004.d.;
b.1.b.3. The capability for annotating internally generated camera tracking data.
1. For the purposes of this entry, digital video cameras should be evaluated by the maximum number of “active pixels” used for capturing moving images.
2. For the purpose of this entry, camera tracking data is the information necessary to define camera line of sight orientation with respect to the earth. This includes: (1) the horizontal angle the camera line of sight makes with respect to the earth's magnetic field direction and; (2) the vertical angle between the camera line of sight and the earth's horizon.
b.2. Scanning cameras and scanning camera systems, having all of the following:
b.2.a. A peak response in the wavelength range exceeding 10 nm, but not exceeding 30,000 nm;
b.2.b. Linear detector arrays with more than 8,192 elements per array;
b.2.c. Mechanical scanning in one direction;
b.3. Imaging cameras incorporating image intensifier tubes having the characteristics listed in 6A002.a.2.a;
b.4. Imaging cameras incorporating “focal plane arrays” having any of the following:
b.4.a. Incorporating “focal plane arrays” controlled by 6A002.a.3.a. to 6A002.a.3.e.; or
b.4.b. Incorporating “focal plane arrays” controlled by 6A002.a.3.f.
“Imaging cameras” described in 6A003.b.4 include “focal plane arrays” combined with sufficient signal processing electronics, beyond the read out integrated circuit, to enable as a minimum the output of an analog or digital signal once power is supplied.
6A003.b.4.a does not control imaging cameras incorporating linear “focal plane arrays” with twelve elements or fewer, not employing time-delay-and-integration within the element, designed for any of the following:
a. Industrial or civilian intrusion alarm, traffic or industrial movement control or counting systems;
b. Industrial equipment used for inspection or monitoring of heat flows in buildings, equipment or industrial processes;
c. Industrial equipment used for inspection, sorting or analysis of the properties of materials;
d. Equipment specially designed for laboratory use; or
e. Medical equipment.
6A003.b.4.b. does not control imaging cameras having any of the following characteristics:
a. A maximum frame rate equal to or less than 9 Hz;
b. Having all of the following:
1. Having a minimum horizontal or vertical Instantaneous-Field-of-View (IFOV) of at least 10 mrad/pixel (milliradians/pixel);
2. Incorporating a fixed focal-length lens that is not designed to be removed;
3. Not incorporating a direct view display,
“Direct view” refers to an imaging camera operating in the infrared spectrum that presents a visual image to a human observer using a near-to-eye micro display incorporating any light-security mechanism.
4. Having any of the following:
a. No facility to obtain a viewable image of the detected field-of-view,
b. The camera is designed for a single kind of application and designed not to be user modified,
Instantaneous Field of View (IFOV) specified in Note 3.b is the lesser figure of the Horizontal FOV or the Vertical FOV.
c. Where the camera is specially designed for installation into a civilian passenger land vehicle of less than three tons (gross vehicle weight) and having all of the following:
1. Is operable only when installed in any of the following:
a. The civilian passenger land vehicle for which it was intended;
b. A specially designed, authorized maintenance test facility;
2. Incorporates an active mechanism that forces the camera not to function when it is removed from the vehicle for which it was intended.
When necessary, details of the items will be provided, upon request, to the Bureau of Industry and Security in order to ascertain compliance with the conditions described in Note 3.b.4. and Note 3.c. in this Note to 6A003.b.4.b.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. “Deformable mirrors” having either continuous or multi-element surfaces, and specially designed components therefor, capable of dynamically repositioning portions of the surface of the mirror at rates exceeding 100 Hz;
a.2. Lightweight monolithic mirrors having an average “equivalent density” of less than 30 kg/m
a.3. Lightweight “composite” or foam mirror structures having an average “equivalent density” of less than 30 kg/m
a.4. Beam steering mirrors more than 100 mm in diameter or length of major axis, that maintain a flatness of lambda/2 or better (lambda is equal to 633 nm) having a control bandwidth exceeding 100 Hz.
b. Optical components made from zinc selenide (ZnSe) or zinc sulphide (ZnS) with transmission in the wavelength range exceeding 3,000 nm but not exceeding 25,000 nm and having any of the following:
b.1. Exceeding 100 cm3 in volume;
b.2. Exceeding 80 mm in diameter or length of major axis and 20 mm in thickness (depth).
c. “Space-qualified” components for optical systems, as follows:
c.1. Lightweighted to less than 20% “equivalent density” compared with a solid blank of the same aperture and thickness;
c.2. Substrates, substrates having surface coatings (single-layer or multi-layer, metallic or dielectric, conducting, semiconducting or insulating) or having protective films;
c.3. Segments or assemblies of mirrors designed to be assembled in space into an optical system with a collecting aperture equivalent to or larger than a single optic 1 m in diameter;
c.4. Manufactured from “composite” materials having a coefficient of linear thermal expansion equal to or less than 5 × 10
d. Optical control equipment, as follows:
d.1. Specially designed to maintain the surface figure or orientation of the “space-qualified” components controlled by 6A004.c.1 or 6A004.c.3;
d.2. Having steering, tracking, stabilization or resonator alignment bandwidths equal to or more than 100 Hz and an accuracy of 10 µrad (microradians) or less;
d.3. Gimbals having all of the following:
d.3.a. A maximum slew exceeding 5°;
d.3.b. A bandwidth of 100 Hz or more;
d.3.c. Angular pointing errors of 200 µrad (microradians) or less;
d.3.d. Having any of the following:
d.3.d.1. Exceeding 0.15 m but not exceeding 1 m in diameter or major axis length and capable of angular accelerations exceeding 2 rad (radians)/s
d.3.d.2. Exceeding 1 m in diameter or major axis length and capable of angular accelerations exceeding 0.5 rad (radians)/s
d.4. Specially designed to maintain the alignment of phased array or phased segment mirror systems consisting of mirrors with a segment diameter or major axis length of 1 m or more.
e. Aspheric optical elements having all of the following characteristics:
e.1. The largest dimension of the optical-aperture is greater than 400 mm;
e.2. The surface roughness is less than 1 nm (rms) for sampling lengths equal to or greater than 1 mm;
e.3. The coefficient of linear thermal expansion's absolute magnitude is less than 3 × 10
1. An “aspheric optical element” is any element used in an optical system whose imaging surface or surfaces are designed to depart from the shape of an ideal sphere.
2. Manufacturers are not required to measure the surface roughness listed in 6A004.e.2 unless the optical element was designed or manufactured with the intent to meet, or exceed, the control parameter.
6A004.e does not control aspheric optical elements having any of the following:
a. A largest optical-aperture dimension less than 1 m and a focal length to aperture ratio equal to or greater than 4.5:1;
b. A largest optical-aperture dimension equal to or greater than 1 m and a focal length to aperture ratio equal to or greater than 7:1;
c. Being designed as Fresnel, flyeye, stripe, prism or diffractive optical elements;
d. Being fabricated from borosilicate glass having a coefficient of linear thermal expansion greater than 2.5 × 10
e. Being an x-ray optical element having inner mirror capabilities (
N.B.: For aspheric optical elements specially designed for lithographic equipment, see 3B001.
(a) Pulsed excimer “lasers” controlled by 6A005.a.1.c having all of the following characteristics:
(1) Operating at wavelengths between 240 and 360 nm;
(2) A repetition rate > 250 Hz;
(3) An average output power > 500 W;
(b) Copper vapor “lasers” controlled by 6A005.a.2.a having all of the following characteristics:
(1) Operating at wavelengths between 500 and 600 nm;
(2) An average output power ≥ 40 W;
(c) Pulsed carbon dioxide “lasers” controlled by 6A005.a.4.c (except industrial CO
(1) Operating at wavelengths between 9,000 and 11,000 nm;
(2) A repetition rate > 250 Hz;
(3) An average output power > 500 W;
(4) A pulse width < 200 ns;
(d) Argon ion “lasers” controlled by 6A005.a.6 having all of the following characteristics:
(1) Operating at wavelengths between 400 and 515 nm;
(2) An average output power > 40 W;
(e) Alexandrite “lasers” controlled by 6A005.c.1.b having all of the following characteristics:
(1) Operating at wavelengths between 720 and 800 nm;
(2) A bandwidth ≤ 0.005 nm;
(3) A repetition rate > 125 Hz;
(4) Average output power > 30 W;
(f) Single-transverse mode output neodymium-doped (other than glass) “lasers” controlled by 6A005.c.2.b.2.a with an average output power > 40 W;
(g) Multiple-transverse mode output neodymium-doped (other than glass) “lasers” controlled by 6A005.c.2.b.2.b with an average output power > 50 W;
(h) Neodymium-doped (other than glass) “lasers” controlled by 6A005.c.2.c.2 having all of the following characteristics:
(1) Incorporating frequency doubling for output wavelength between 500 and 550 nm;
(2) Average output power > 40 W;
(i) Tunable pulsed single-mode dye “lasers” controlled by 6A005.d.2.c operating at wavelengths between 300 and 800 nm.
a.1. Excimer “lasers”, having any of the following:
a.1.a. An output wavelength not exceeding 150 nm and having any of the following: a.1.a.1. An output energy exceeding 50 mJ per pulse;
a.1.a.2. An average output power exceeding 1 W;
a.1.b. An output wavelength exceeding 150 nm but not exceeding 190 nm and having any of the following:
a.1.b.1. An output energy exceeding 1.5 J per pulse;
a.1.b.2. An average output power exceeding 120 W;
a.1.c. An output wavelength exceeding 190 nm but not exceeding 360 nm and having any of the following:
a.1.c.1. An output energy exceeding 10 J per pulse;
a.1.c.2. An average output power exceeding 500 W;
a.1.d. An output wavelength exceeding 360 nm and having any of the following:
a.1.d.1. An output energy exceeding 1.5 J per pulse;
a.1.d.2. An average output power exceeding 30 W;
For excimer “lasers” specially designed for lithography equipment,
a.2. Metal vapor “lasers”, as follows:
a.2.a. Copper (Cu) “lasers” having an average output power exceeding 20 W;
a.2.b. Gold (Au) “lasers” having an average output power exceeding 5 W;
a.2.c. Sodium (Na) “lasers” having an output power exceeding 5 W;
a.2.d. Barium (Ba) “lasers” having an average output power exceeding 2 W;
a.3. Carbon monoxide (CO) “lasers” having any of the following:
a.3.a. An output energy exceeding 2 J per pulse and a pulsed “peak power” exceeding 5 kW;
a.3.b. An average or CW output power exceeding 5 kW;
a.4. Carbon dioxide (CO
a.4.a. A CW output power exceeding 15 kW;
a.4.b. A pulsed output having a “pulse duration” exceeding 10 µs and having any of the following:
a.4.b.1. An average output power exceeding 10 kW;
a.4.b.2. A pulsed “peak power” exceeding 100 kW;
a.4.c. A pulsed output having a “pulse duration” equal to or less than 10 µs; and having any of the following:
a.4.c.1. A pulse energy exceeding 5 J per pulse;
a.4.c.2. An average output power exceeding 2.5 kW;
a.5. “Chemical lasers”, as follows:
a.5.a. Hydrogen Fluoride (HF) “lasers”;
a.5.b. Deuterium Fluoride (DF) “lasers”;
a.5.c. “Transfer lasers”, as follows:
a.5.c.1. Oxygen Iodine (O
a.5.c.2. Deuterium Fluoride-Carbon dioxide (DF-CO
a.6. Krypton ion or argon ion “lasers” having any of the following:
a.6.a. An output energy exceeding 1.5 J per pulse and a pulsed “peak power” exceeding 50 W;
a.6.b. An average or CW output power exceeding 50 W;
a.7. Other gas “lasers”, having any of the following:
6A005.a.7 does not control nitrogen “lasers”.
a.7.a. An output wavelength not exceeding 150 nm and having any of the following:
a.7.a.1. An output energy exceeding 50 mJ per pulse and a pulsed “peak power” exceeding 1 W;
a.7.a.2. An average or CW output power exceeding 1 W;
a.7.b. An output wavelength exceeding 150 nm but not exceeding 800 nm and having any of the following:
a.7.b.1. An output energy exceeding 1.5 J per pulse and a pulsed “peak power” exceeding 30 W;
a.7.b.2. An average or CW output power exceeding 30 W;
a.7.c. An output wavelength exceeding 800 nm but not exceeding 1,400 nm and having any of the following:
a.7.c.1. An output energy exceeding 0.25 J per pulse and a pulsed “peak power” exceeding 10 W;
a.7.c.2. An average or CW output power exceeding 10 W;
a.7.d. An output wavelength exceeding 1,400 nm and an average or CW output power exceeding 1 W.
b. Semiconductor “lasers”, as follows:
6A005.b. includes semiconductor “lasers” having optical output connectors (
The control status of semiconductor “lasers” specially designed for other equipment is determined by the control status of the other equipment.
b.1. Individual single-transverse mode semiconductor “lasers” having any of the following:
b.1.a. A wavelength equal to or less than 1510 nm, and having an average or CW output power exceeding 1.5 W;
b.1.b. A wavelength greater than 1510 nm, and having an average or CW output power exceeding 500 mW;
b.2. Individual, multiple-transverse mode semiconductor “lasers” , having any of the following:
b.2.a. A wavelength of less than 1400 nm, and having an average or CW output power exceeding 10W;
b.2.b. A wavelength equal to or greater than 1400 nm and less than 1900 nm, and having an average or CW output power exceeding 2.5 W;
b.2.c. A wavelength equal to or greater than 1900 nm and having an average or CW output power exceeding 1 W.
b.3. Individual semiconductor “laser” arrays, having any of the following:
b.3.a. A wavelength of less than 1400 nm and having an average or CW output power exceeding 80 W;
b.3.b. A wavelength equal to or greater than 1400 nm and less than 1900 nm, and having an average or CW output power exceeding 25 W;
b.3.c. A wavelength equal to or greater than 1900 nm, and having an average or CW output power exceeding 10 W.
b.4. Array stacks of semiconductor “lasers” containing at least one array that is controlled under 6A005.b.3.
1. Semiconductor “lasers” are commonly called “laser” diodes.
2. An “array” consists of multiple semiconductor “laser” emitters fabricated as a single chip so that the centers of the emitted light beams are on parallel paths.
3. An “array stack” is fabricated by stacking, or otherwise assembling, “arrays” so that the centers of the emitted light beams are on parallel paths.
c. Solid state “lasers”, as follows:
c.1. “Tunable” “lasers” having any of the following:
6A005.c.1 includes titanium-sapphire (Ti: Al
c.1.a. An output wavelength less than 600 nm and having any of the following:
c.1.a.1. An output energy exceeding 50 mJ per pulse and a pulsed “peak power” exceeding 1 W;
c.1.a.2. An average or CW output power exceeding 1 W;
c.1.b. An output wavelength of 600 nm or more but not exceeding 1,400 nm and having any of the following:
c.1.b.1. An output energy exceeding 1 J per pulse and a pulsed “peak power” exceeding 20 W;
c.1.b.2. An average or CW output power exceeding 20 W;
c.1.c. An output wavelength exceeding 1,400 nm and having any of the following:
c.1.c.1. An output energy exceeding 50 mJ per pulse and a pulsed “peak power” exceeding 1 W;
c.1.c.2. An average or CW output power exceeding 1 W;
c.2. Non-“tunable” “lasers”, as follows:
6A005.c.2 includes atomic transition solid state “lasers”.
c.2.a. Neodymium glass “lasers”, as follows:
c.2.a.1. “Q-switched lasers” having any of the following:
c.2.a.1.a. An output energy exceeding 20 J but not exceeding 50 J per pulse and an average output power exceeding 10 W;
c.2.a.1.b. An output energy exceeding 50 J per pulse;
c.2.a.2. Non-“Q-switched lasers” having any of the following:
c.2.a.2.a. An output energy exceeding 50 J but not exceeding 100 J per pulse and an average output power exceeding 20 W;
c.2.a.2.b. An output energy exceeding 100 J per pulse;
c.2.b. Neodymium-doped (other than glass) “lasers”, having an output wavelength exceeding 1,000 nm but not exceeding 1,100 nm, as follows:
N.B.: For neodymium-doped (other than glass) “lasers” having an output wavelength not exceeding 1,000 nm or exceeding 1,100 nm,
c.2.b.1. Pulse-excited, mode-locked, “Q-switched lasers” having a “pulse duration” of less than 1 ns and having any of the following:
c.2.b.1.a. A “peak power” exceeding 5 GW;
c.2.b.1.b. An average output power exceeding 10 W;
c.2.b.1.c. A pulsed energy exceeding 0.1 J;
c.2.b.2. Pulse-excited, “Q-switched lasers” having a pulse duration equal to or more than 1 ns, and having any of the following:
c.2.b.2.a. A single-transverse mode output having:
c.2.b.2.a.1. A “peak power” exceeding 100 MW;
c.2.b.2.a.2. An average output power exceeding 20 W;
c.2.b.2.a.3. A pulsed energy exceeding 2 J;
c.2.b.2.b. A multiple-transverse mode output having:
c.2.b.2.b.1. A “peak power” exceeding 400 MW;
c.2.b.2.b.2. An average output power exceeding 2 kW;
c.2.b.2.b.3. A pulsed energy exceeding 2 J;
c.2.b.3. Pulse-excited, non-“Q-switched lasers”, having:
c.2.b.3.a. A single-transverse mode output having:
c.2.b.3.a.1. A “peak power” exceeding 500 kW;
c.2.b.3.a.2. An average output power exceeding 150 W;
c.2.b.3.b. A multiple-transverse mode output having:
c.2.b.3.b.1. A “peak power” exceeding 1 MW;
c.2.b.3.b.2. An average power exceeding 2 kW;
c.2.b.4. Continuously excited “lasers” having:
c.2.b.4.a. A single-transverse mode output having:
c.2.b.4.a.1. A “peak power” exceeding 500 kW;
c.2.b.4.a.2. An average or CW output power exceeding 150 W;
c.2.b.4.b. A multiple-transverse mode output having:
c.2.b.4.b.1. A “peak power” exceeding 1 MW;
c.2.b.4.b.2. An average or CW output power exceeding 2 kW;
c.2.c. Other non-“tunable” “lasers”, having any of the following:
c.2.c.1. A wavelength less than 150 nm and having any of the following:
c.2.c.1.a. An output energy exceeding 50 mJ per pulse and a pulsed “peak power” exceeding 1 W;
c.2.c.1.b. An average or CW output power exceeding 1 W;
c.2.c.2. A wavelength of 150 nm or more but not exceeding 800 nm and having any of the following:
c.2.c.2.a. An output energy exceeding 1.5 J per pulse and a pulsed “peak power” exceeding 30 W;
c.2.c.2.b. An average or CW output power exceeding 30 W;
c.2.c.3. A wavelength exceeding 800 nm but not exceeding 1,400 nm, as follows:
c.2.c.3.a. “Q-switched lasers” having:
c.2.c.3.a.1. An output energy exceeding 0.5 J per pulse and a pulsed “peak power” exceeding 50 W;
c.2.c.3.a.2. An average output power exceeding:
c.2.c.3.a.2.a. 10 W for single-mode “lasers”;
c.2.c.3.a.2.b. 30 W for multimode “lasers”;
c.2.c.3.b. Non-“Q-switched lasers” having:
c.2.c.3.b.1. An output energy exceeding 2 J per pulse and a pulsed “peak power” exceeding 50 W;
c.2.c.3.b.2. An average or CW output power exceeding 50 W;
c.2.c.4. A wavelength exceeding 1,400 nm and having any of the following:
c.2.c.4.a. An output energy exceeding 100 mJ per pulse and a pulsed “peak power” exceeding 1 W;
c.2.c.4.b. An average or CW output power exceeding 1 W;
d. Dye and other liquid “lasers”, having any of the following:
d.1. A wavelength less than 150 nm and;
d.1.a. An output energy exceeding 50 mJ per pulse and a pulsed “peak power” exceeding 1 W;
d.1.b. An average or CW output power exceeding 1 W;
d.2. A wavelength of 150 nm or more but not exceeding 800 nm and having any of the following:
d.2.a. An output energy exceeding 1.5 J per pulse and a pulsed “peak power” exceeding 20 W;
d.2.b. An average or CW output power exceeding 20 W;
d.2.c. A pulsed single longitudinal mode oscillator having an average output power exceeding 1 W and a repetition rate exceeding 1 kHz if the “pulse duration” is less than 100 ns;
d.3. A wavelength exceeding 800 nm but not exceeding 1,400 nm and having any of the following:
d.3.a. An output energy exceeding 0.5 J per pulse and a pulsed “peak power” exceeding 10 W;
d.3.b. An average or CW output power exceeding 10 W;
d.4. A wavelength exceeding 1,400 nm and having any of the following:
d.4.a. An output energy exceeding 100 mJ per pulse and a pulsed “peak power” exceeding 1 W;
d.4.b. An average or CW output power exceeding 1 W;
e. Components, as follows:
e.1. Mirrors cooled either by active cooling or by heat pipe cooling;
Active cooling is a cooling technique for optical components using flowing fluids within the subsurface (nominally less than 1 mm below the optical surface) of the optical component to remove heat from the optic.
e.2. Optical mirrors or transmissive or partially transmissive optical or electro-optical components specially designed for use with controlled “lasers”;
f. Optical equipment, as follows:
For shared aperture optical elements, capable of operating in “Super-High Power Laser” (“SHPL”) applications, see the U.S. Munitions List (22 CFR part 121).
f.1. Dynamic wavefront (phase) measuring equipment capable of mapping at least 50 positions on a beam wavefront having any of the following:
f.1.a. Frame rates equal to or more than 100 Hz and phase discrimination of at least 5% of the beam's wavelength;
f.1.b. Frame rates equal to or more than 1,000 Hz and phase discrimination of at least 20% of the beam's wavelength;
f.2. “Laser” diagnostic equipment capable of measuring “SHPL” system angular beam steering errors of equal to or less than 10 µrad;
f.3. Optical equipment and components specially designed for a phased-array “SHPL” system for coherent beam combination to an accuracy of lambda/10 at the designed wavelength, or 0.1 µm, whichever is the smaller;
f.4. Projection telescopes specially designed for use with “SHPL” systems.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. Using “superconductive” (SQUID) “technology” and having any of the following characteristics:
a.1.a. SQUID systems designed for stationary operation, without specially designed subsystems designed to reduce in-motion noise, and having a “noise level” (sensitivity) equal to or lower (better) than 50 fT (rms) per square root Hz at a frequency of 1 Hz;
a.1.b. SQUID systems having an in-motion-magnetometer “noise level” (sensitivity) lower (better) than 20 pT (rms) per square root Hz at a frequency of 1 Hz and specially designed to reduce in-motion noise;
a.2. Using optically pumped or nuclear precession (proton/Overhauser) “technology” having a “noise level” (sensitivity) lower (better) than 20 pT (rms) per square root Hz;
a.3. Using fluxgate “technology” having a “noise level” (sensitivity) equal to or lower (better) than 10 pT (rms) per square root Hz at a frequency of 1 Hz;
a.4. Induction coil “magnetometers” having a “noise level” (sensitivity) lower (better) than any of the following:
a.4.a. 0.05 nT rms/square root Hz at frequencies of less than 1 Hz;
a.4.b. 1 × 10
a.4.c. 1 × 10
a.5. Fiber optic “magnetometers” having a “noise level” (sensitivity) lower (better) than 1 nT rms per square root Hz;
b. Underwater electric field sensors having a “noise level” (sensitivity) lower (better) than 8 nanovolt per meter per square root Hz when measured at 1 Hz.
c. “Magnetic gradiometers” as follows:
c.1. “Magnetic gradiometers” using multiple “magnetometers” controlled by 6A006.a;
c.2. Fiber optic “intrinsic magnetic gradiometers” having a magnetic gradient field “noise level” (sensitivity) lower (better) than 0.3 nT/m rms per square root Hz;
c.3. “Intrinsic magnetic gradiometers”, using “technology” other than fiber-optic “technology”, having a magnetic gradient field “noise level” (sensitivity) lower (better) than 0.015 nT/m rms per square root Hz;
d. Compensation systems for magnetic and Underwater Electric Field Sensors resulting in a performance equal to or better than the control parameters of 6A006.a, 6A006.b, and 6A006.c.
6A007.a does not control ground gravity meters of the quartz element (Worden) type.
b. Gravity meters designed for mobile platforms for ground, marine, submersible, space or airborne use, having all of the following:
b.1. A static accuracy of less (better) than 0.7 mgal;
b.2. An in-service (operational) accuracy of less (better) than 0.7 mgal having a time-to-steady-state registration of less than 2 minutes under any combination of attendant corrective compensations and motional influences;
c. Gravity gradiometers.
b. Having a tunable bandwidth exceeding ±6.25% of the center operating frequency;
The center operating frequency equals one half of the sum of the highest plus the lowest specified operating frequencies.
c. Capable of operating simultaneously on more than two carrier frequencies;
d. Capable of operating in synthetic aperture (SAR), inverse synthetic aperture (ISAR) radar mode, or sidelooking airborne (SLAR) radar mode;
e. Incorporating “electronically steerable phased array antennae”;
f. Capable of heightfinding non-cooperative targets;
6A008.f does not control precision approach radar (PAR) equipment conforming to ICAO standards.
g. Specially designed for airborne (balloon or airframe mounted) operation and having Doppler “signal processing” for the detection of moving targets;
h. Employing processing of radar signals using any of the following:
h.1. “Radar spread spectrum” techniques;
h.2. “Radar frequency agility” techniques;
i. Providing ground-based operation with a maximum “instrumented range” exceeding 185 km;
6A008.i does not control:
a. Fishing ground surveillance radar;
b. Ground radar equipment specially designed for en route air traffic control, provided that all the following conditions are met:
1. It has a maximum “instrumented range” of 500 km or less;
2. It is configured so that radar target data can be transmitted only one way from the radar site to one or more civil ATC centers;
3. It contains no provisions for remote control of the radar scan rate from the en route ATC center; and
4. It is to be permanently installed;
c. Weather balloon tracking radars.
j. Being “laser” radar or Light Detection and Ranging (LIDAR) equipment, having any of the following:
j.1. “Space-qualified”;
j.2. Employing coherent heterodyne or homodyne detection techniques and having an angular resolution of less (better) than 20 µrad (microradians);
6A008.j does not control LIDAR equipment specially designed for surveying or for meteorological observation.
k. Having “signal processing” sub-systems using “pulse compression”, with any of the following:
k.1. A “pulse compression” ratio exceeding 150;
k.2. A pulse width of less than 200 ns;
l. Having data processing sub-systems with any of the following:
l.1. “Automatic target tracking” providing, at any antenna rotation, the predicted target position beyond the time of the next antenna beam passage;
6A008.l.1 does not control conflict alert capability in ATC systems, or marine or harbor radar.
l.2. Calculation of target velocity from primary radar having non-periodic (variable) scanning rates;
l.3. Processing for automatic pattern recognition (feature extraction) and comparison with target characteristic data bases (waveforms or imagery) to identify or classify targets;
l.4. Superposition and correlation, or fusion, of target data from two or more “geographically dispersed” and “interconnected radar sensors” to enhance and discriminate targets.
6A008.l.4 does not control systems, equipment and assemblies designed for marine traffic control.
b. Specially designed components for gravity meters controlled in 6A007. b or 6A107.a and gravity gradiometers controlled in 6A007.c.
6A108.a includes the following:
a. Terrain contour mapping equipment;
b. Imaging sensor equipment;
c. Scene mapping and correlation (both digital and analog) equipment;
d. Doppler navigation radar equipment.
b. Precision tracking systems, usable for “missiles”, as follows:
b.1. Tracking systems which use a code translator installed on the rocket or unmanned air vehicle in conjunction with either surface or airborne references or navigation satellite systems to provide real-time measurements of in-flight position and velocity;
b.2. Range instrumentation radars including associated optical/infrared trackers with all of the following capabilities:
b.2.a. Angular resolution better than 3 milliradians (0.5 mils);
b.2.b. Range of 30 km or greater with a range resolution better than 10 m rms;
b.2.c. Velocity resolution better than 3 m/s.
b. Anode pulse rise time of less than 1 ns.
a.1. Framing cameras with recording rates greater than 225,000 frames per second;
a.2. Streak cameras with writing speeds greater than 0.5 mm per microsecond;
Components of cameras controlled by 6A203.a include their synchronizing electronics units and rotor assemblies consisting of turbines, mirrors and bearings.
b. Electronic streak cameras, electronic framing cameras, tubes and devices, as follows:
b.1. Electronic streak cameras capable of 50 ns or less time resolution;
b.2. Streak tubes for cameras controlled by 6A203.b.1;
b.3. Electronic (or electronically shuttered) framing cameras capable of 50 ns or less frame exposure time;
b.4. Framing tubes and solid-state imaging devices for use with cameras controlled by 6A203.b.3, as follows:
b.4.a. Proximity focused image intensifier tubes having the photocathode deposited on a transparent conductive coating to decrease photocathode sheet resistance;
b.4.b. Gated silicon intensifier target (SIT) videcon tubes, where a fast system allows gating the photoelectrons from the photocathode before they impinge on the SIT plate;
b.4.c. Kerr or Pockels cell electro-optical shuttering;
b.4.d. Other framing tubes and solid-state imaging devices having a fast-image gating time of less than 50 ns specially designed for cameras controlled by 6A203.b.3.
c. Radiation-hardened TV cameras, or lenses therefor, specially designed or rated as radiation hardened to withstand a total radiation dose greater than 50 × 10
The term Gy (silicon) refers to the energy in Joules per kilogram absorbed by an unshielded silicon sample when exposed to ionizing radiation.
a.1. Operating at wavelengths between 400 nm and 515 nm;
a.2. An average output power greater than 40 W;
b. Tunable pulsed single-mode dye laser oscillators having all of the following characteristics:
b.1. Operating at wavelengths between 300 nm and 800 nm;
b.2. An average output power greater than 1 W;
b.3. A repetition rate greater than 1 kHz;
b.4. Pulse width less than 100 ns;
c. Tunable pulsed dye laser amplifiers and oscillators having all of the following characteristics:
c.1. Operating at wavelengths between 300 nm and 800 nm;
c.2. An average output power greater than 30 W;
c.3. A repetition rate greater than 1 kHz;
c.4. Pulse width less than 100 ns;
6A205.c does not control single mode oscillators.
d. Pulsed carbon dioxide “lasers” having all of the following characteristics:
d.1. Operating at wavelengths between 9,000 nm and 11,000 nm;
d.2. A repetition rate greater than 250 Hz;
d.3. An average output power greater than 500 W;
d.4. Pulse width of less than 200 ns;
e. Para-hydrogen Raman shifters designed to operate at 16 micrometer output wavelength and at a repetition rate greater than 250 Hz;
f. Pulse-excited, Q-switched neodymium-doped (other than glass) “lasers” having all of the following characteristics:
f.1. An output wavelength exceeding 1,000 nm, but not exceeding 1,100 nm;
f.2. A pulse duration equal to or more than 1 ns;
f.3. A multiple-transverse mode output having an average power exceeding 50 W.
b. Quartz pressure transducers for pressures greater than 100 kilobars.
RS applies to entire entry. A license is required for items controlled by this entry for export or reexport to Iraq or transfer within Iraq for regional stability reasons. The Commerce Country Chart is not designed to determine RS license requirements for this entry. See §§ 742.6 and 746.3 of the EAR for additional information.
a.1. Image intensifier tubes having all the following:
a.1.a. A peak response in wavelength range exceeding 400 nm, but not exceeding 1,050 nm;
a.1.b. A microchannel plate for electron image amplification with a hole pitch (center-to-center spacing) of less than 25 micrometers;
a.1.c. Having any of the following:
a.1.c.1. An S-20, S-25 or multialkali photocathode;
a.1.c.2. A GaAs or GaInAs photocathode;
a.2. Specially designed microchannel plates having both of the following characteristics:
a.2.a. 15,000 or more hollow tubes per plate;
a.2.b. Hole pitch (center-to-center spacing) of less than 25 micrometers.
b. Direct view imaging equipment operating in the visible or infrared spectrum, incorporating image intensifier tubes having the characteristics listed in 6A992.a.1.
b. [Reserved]
a.1. For wavelengths longer than 250 nm, comprised of multi-layer optical coatings and having either of the following:
a.1.a. Bandwidths equal to or less than 1 nm Full Width Half Intensity (FWHI) and peak transmission of 90% or more; or
a.1.b. Bandwidths equal to or less than 0.1 nm FWHI and peak transmission of 50% or more;
6A994 does not control optical filters with fixed air gaps or Lyot-type filters.
a.2. For wavelengths longer than 250 nm, and having all of the following:
a.2.a. Tunable over a spectral range of 500 nm or more;
a.2.b. Instantaneous optical bandpass of 1.25 nm or less;
a.2.c. Wavelength resettable within 0.1 ms to an accuracy of 1 nm or better within the tunable spectral range; and
a.2.d. A single peak transmission of 91% or more;
a.3. Optical opacity switches (filters) with a field of view of 30° or wider and a response time equal to or less than 1 ns;
b. “Fluoride fiber” cable, or optical fibers therefor, having an attenuation of less than 4 dB/km in the wavelength range exceeding 1,000 nm but not exceeding 3,000 nm.
a.1. A CW output power exceeding 10 kW;
a.2. A pulsed output with a “pulse duration” exceeding 10 microseconds; and
a.2.a. An average output power exceeding 10 kW; or
a.2.b. A pulsed “peak power” exceeding 100 kW; or
a.3. A pulsed output with a “pulse duration” equal to or less than 10 microseconds; and
a.3.a. A pulse energy exceeding 5 J per pulse and “peak power” exceeding 2.5 kW; or
a.3.b. An average output power exceeding 2.5 kW;
b. Semiconductor lasers, as follows:
b.1. Individual, single-transverse mode semiconductor “lasers” having:
b.1.a. An average output power exceeding 100 mW; or
b.1.b. A wavelength exceeding 1,050 nm;
b.2. Individual, multiple-transverse mode semiconductor “lasers”, or arrays of individual semiconductor “lasers”, having a wavelength exceeding 1,050 nm;
c. Solid state, non-“tunable” “lasers”, as follows:
c.1. Ruby “lasers” having an output energy exceeding 20 J per pulse;
c.2. Neodymium-doped (other than glass) “lasers”, as follows, with an output wavelength exceeding 1,000 nm but not exceeding 1,100 nm:
c.2.a. Pulse-excited, “Q-switched lasers”, with a pulse duration equal to or more than 1 ns, and a multiple-transverse mode output with any of the following:
c.2.a.1. A “peak power” exceeding 200 MW; or
c.2.a.2. An average output power exceeding 50 W;
c.2.b. Pulse-excited, non-“Q-switched lasers”, having a multiple-transverse mode output with an average power exceeding 500 W; or
c.2.c. Continuously excited “lasers” having a multiple-transverse mode output with an average or CW output power exceeding 500 W;
d. Free electron “lasers”.
b. “Superconductive” electromagnetic sensors, components manufactured from “superconductive” materials:
b.1. Designed for operation at temperatures below the “critical temperature” of at least one of their “superconductive” constituents (including Josephson effect devices or “superconductive” quantum interference devices (SQUIDS));
b.2. Designed for sensing electromagnetic field variations at frequencies of 1 KHz or less;
b.3. Having any of the following characteristics:
b.3.a. Incorporating thin-film SQUIDS with a minimum feature size of less than 2 µm and with associated input and output coupling circuits;
b.3.b. Designed to operate with a magnetic field slew rate exceeding 1 × 10
b.3.c. Designed to function without magnetic shielding in the earth's ambient magnetic field;
b.3.d. Having a temperature coefficient less (smaller) than 0.1 magnetic flux quantum/K.
b. Being of the quartz element (Worden) type.
b. “Space-qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment specially designed for surveying or for meteorological observation.
AT applies to entire entry. A license is required for items controlled by this entry to North Korea for anti-terrorism reasons. The Commerce Country Chart is not designed to determine AT licensing requirements for this entry. See § 742.19 of the EAR for additional information.
b. Radiation hardened TV cameras, n.e.s.
b. Equipment other than optical surface scattering measurement equipment, having an unobscured aperture of more than 10 cm, specially designed for the non-contact optical measurement of a non-planar optical surface figure (profile) to an “accuracy” of 2 nm or less (better) against the required profile.
a.1. Free electron “laser” magnet wigglers;
a.2. Free electron “laser” photo injectors;
b. For the adjustment, to required tolerances, of the longitudinal magnetic field of free electron “lasers”.
b. Single crystals (including epitaxial wafers) of any of the following:
b.1. Cadmium zinc telluride (CdZnTe), with zinc content less than 6% by mole fraction;
b.2. Cadmium telluride (CdTe) of any purity level;
b.3. Mercury cadmium telluride (HgCdTe) of any purity level.
Mole fraction is defined as the ratio of moles of ZnTe to the sum of the moles of CdTe and ZnTe present in the crystal.
a.1. A volume greater than 100 cm3; or
a.2. A diameter greater than 80 mm having a thickness of 20 mm or more;
b. Boules of the following electro-optic materials:
b.1. Potassium titanyl arsenate (KTA);
b.2. Silver gallium selenide (AgGaSe
b.3. Thallium arsenic selenide (Tl
c. Non-linear optical materials, having all of the following:
c.1. Third order susceptibility (chi 3) of 10-
c.2. A response time of less than 1 ms;
d. “Substrate blanks” of silicon carbide or beryllium beryllium (Be/Be) deposited materials exceeding 300 mm in diameter or major axis length;
e. Glass, including fused silica, phosphate glass, fluorophosphate glass, zirconium fluoride (ZrF
e.1. A hydroxyl ion (OH-) concentration of less than 5 ppm;
e.2. Integrated metallic purity levels of less than 1 ppm; and
e.3. High homogeneity (index of refraction variance) less than 5 × 10-
f. Synthetically produced diamond material with an absorption of less than 10
b. Alexandrite.
a.1. Bulk fluoride compounds containing ingredients with a purity of 99.999% or better;
6C994.a.1 controls fluorides of zirconium or aluminum and variants.
a.2. Bulk fluoride glass made from compounds controlled by 6C004.e.1;
b. ‘Optical fiber preforms’ made from bulk fluoride compounds containing ingredients with a purity of 99.999% or better, specially designed for the manufacture of ‘fluoride fibers’ controlled by 6A994.b.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
(1) Items controlled for MT reasons;
(2) “Software” specially designed for the “development” or “production” of “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment defined in 6A008.j.1; or
(3) Exports or reexports to destinations outside of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom of “software” specially designed for the “development” or “production” of equipment controlled by 6A008.1.3 or 6B008.
(1) Items controlled for MT reasons; or
(2) “Software” specially designed for the “use” of “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment defined in 6A008.j.1.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. “Software” specially designed for acoustic beam forming for the “real time processing” of acoustic data for passive reception using towed hydrophone arrays;
a.2. “Source code” for the “real time processing” of acoustic data for passive reception using towed hydrophone arrays;
a.3. “Software” specially designed for acoustic beam forming for the “real time processing” of acoustic data for passive reception using bottom or bay cable systems;
a.4. “Source code” for the “real time processing” of acoustic data for passive reception using bottom or bay cable systems.
b. Optical sensors. None.
c. Cameras. None.
d. Optics. None.
e. Lasers. None
f. Magnetic and Electric Field Sensors “software”, as follows:
f.1. “Software” specially designed for magnetic and electric field compensation systems for magnetic sensors designed to operate on mobile platforms;
f.2. “Software” specially designed for magnetic and electric field anomaly detection on mobile platforms;
g. Gravimeters. “Software” specially designed to correct motional influences of gravity meters or gravity gradiometers;
h. Radar “software”, as follows:
h.1. Air Traffic Control “software” application “programs” hosted on general purpose computers located at Air Traffic Control centers and capable of any of the following:
h.1.a. Processing and displaying more than 150 simultaneous “system tracks”;
h.1.b. Accepting radar target data from more than four primary radars;
h.2. “Software” for the design or “production” of radomes which:
h.2.a. Are specially designed to protect the “electronically steerable phased array antennae” controlled by 6A008.e.;
h.2.b. Result in an antenna pattern having an “average side lobe level” more than 40 dB below the peak of the main beam level.
“Average side lobe level” in 6D003.h.2.b is measured over the entire array excluding the angular extent of the main beam and the first two side lobes on either side of the main beam.
The list of items controlled is contained in the ECCN heading.
(1) Items controlled for MT reasons;
(2) “Technology” for commodities controlled by 6A002.e, 6A004.e, or 6A008.j.1;
(3) “Technology” for “software” specially designed for “space qualified” “laser” radar or Light Detection and Ranging (LIDAR) equipment defined in 6A008.j.1 and controlled by 6D001 or 6D002;
(4) Exports or reexports to destinations outside of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom of “technology” for the “development” of the following: (a) Items controlled by 6A001.a.1.b.1, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6,6A001.a.2.b, 6A001.a.2.e., 6A002.a.1.c, 6A008.l.3, 6B008, 6D003.a; (b) Equipment controlled by 6A001.a.2.c or 6A001.a.2.f when specially designed for real time applications;
(5) Exports or reexports to Rwanda.
(1) Items controlled for MT reasons;
(2) “Technology” for commodities controlled by 6A002.e, 6A004.e, 6A008.j.1;
(3) Exports or reexports to destinations outside of Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden, or the United Kingdom of “technology” for the “development” of the following: (a) Items controlled by 6A001.a.1.b.1, 6A001.a.2.a.1, 6A001.a.2.a.2, 6A001.a.2.a.3, 6A001.a.2.a.5, 6A001.a.2.a.6, 6A001.a.2.b, and 6A001.a.2.c; and (b) Equipment controlled by 6A001.a.2.e and 6A001.a.2.f when specially designed for real time applications; or (c) “Software” controlled by 6D001 and specially designed for the “development” or “production” of equipment controlled by 6A002.a.1.c, 6A008.l.3 or 6B008; or
(4) Exports or reexports to Rwanda.
b. Optical sensors. None.
c. Cameras. None.
d. Optics, “technology”, as follows:
d.1. Optical surface coating and treatment “technology” “required” to achieve uniformity of 99.5% or better for optical coatings 500 mm or more in diameter or major axis length and with a total loss (absorption and scatter) of less than 5 × 10
d.2. Optical fabrication “technology” using single point diamond turning techniques to produce surface finish accuracies of better than 10 nm rms on non-planar surfaces exceeding 0.5 m
e. Lasers. “Technology” “required” for the “development”, “production” or “use” of specially designed diagnostic instruments or targets in test facilities for “SHPL” testing or testing or evaluation of materials irradiated by “SHPL” beams;
f. Magnetic and Electric Field Sensors. None.
g. Gravimeters. None.
h. Radar. None.
a.1. An area exceeding 1 m
a.2. A surface figure exceeding lambda/10 rms at the designed wavelength;
b. “Technology” for optical filters with a bandwidth equal to or less than 10 nm, a field of view (FOV) exceeding 40° and a resolution exceeding 0.75 line pairs per milliradian;
c. “Technology” for the “development” or “production” of cameras controlled by 6A993;
d. “Technology” “required” for the “development” or “production” of non-triaxial fluxgate “magnetometers” or non-triaxial fluxgate “magnetometer” systems, having any of the following:
d.1. A “noise level” of less than 0.05 nT rms per square root Hz at frequencies of less than 1 Hz;
d.2. A “noise level” of less than 1 × 10
N.B. 1: For automatic pilots for underwater vehicles, see Category 8. For radar, see Category 6.
b. A “scale factor” “stability” of less (better) than 130 ppm with respect to a fixed calibration value over a period of one year; or
c. Specified to function at linear acceleration levels exceeding 100 g.
a.1. Less (better) than 0.1 degree per hour when specified to function at linear acceleration levels below 12 g;
a.2. Less (better) than 0.5 degree per hour when specified to function at linear acceleration levels from 12 g to 100 g inclusive;
b. An angle random walk of less (better) than or equal to 0.0035 degree per square root hour;
7A002.b does not control spinning mass gyros (spinning mass gyros are gyros which use a continually rotating mass to sense angular motion).
For the purpose of 7A002.b, “angle random walk” is the angular
c. Specified to function at linear acceleration levels exceeding 100 g.
a.1. Navigation error (free inertial) subsequent to normal alignment of 0.8 nautical mile per hour (nm/hr) Circular Error Probable (CEP) or less (better);
a.2. Specified to function at linear acceleration levels exceeding 10 g.
b. Hybrid Inertial Navigation Systems embedded with Global Navigation Satellite System(s) (GNSS) or with “Data-Based Referenced Navigation” (“DBRN”) System(s) for attitude, guidance or control, subsequent to normal alignment, having an INS navigation position accuracy, after loss of GNSS or “DBRN” for a period of up to 4 minutes, of less (better) than 10 meters Circular Error Probable (CEP).
c. Inertial Equipment for Azimuth, Heading, or North Pointing having any of the following characteristics, and specially designed components therefor:
c.1. Designed to have an Azimuth, Heading, or North Pointing accuracy equal to, or less (better) than 6 arc minutes RMS at 45 degrees latitude;
c.2. Designed to have a non-operating shock level of 900 g or greater at a duration of 1-msec, or greater.
The parameters of 7A003.a and 7A003.b are applicable with any of the following environmental conditions:
1. Input random vibration with an overall magnitude of 7.7 g rms in the first half hour and a total test duration of one and one half hour per axis in each of the three perpendicular axes, when the random vibration meets the following:
a. A constant power spectral density (PSD) value of 0.04 g
b. The PSD attenuates with frequency from 0.04 g
2. A roll and yaw rate of equal to or more than +2.62 rad/s (150 deg/s);
3. According to national standards equivalent to 1. or 2. of this note.
7A003 does not control inertial navigation systems that are certified for use on “civil aircraft” by civil authorities of a country in Country Group A:1.
7A003.c.1 does not control theodolite systems incorporating inertial equipment specially designed for civil surveying purposes.
1. 7A003.b refers to systems in which an INS and other independent navigation aids are built into a single unit (embedded) in order to achieve improved performance.
2. “Circular Error Probable” (“CEP”)—In a circular normal distribution, the radius of the circle containing 50 percent of the individual measurements being made, or the radius of the circle within which there is a 50 percent probability of being located.
b. Using phase shift key modulation.
1. ‘Scale factor' “repeatability” less (better) than 1250 ppm; and
2. ‘Bias' “repeatability” less (better) than 1250 micro g.
The measurement of ‘bias' and ‘scale factor' refers to one sigma standard deviation with respect to a fixed calibration over a period of one year.
7A103.a does not control equipment containing accelerometers specially designed and developed as MWD (Measurement While Drilling) sensors for use in down-hole well services operations.
b. Integrated flight instrument systems, which include gyrostabilizers or automatic pilots, designed or modified for use in missiles.
c. Integrated Navigation Systems, designed or modified for use in “missiles” and capable of providing a navigational accuracy of 200m Circular Error Probable (CEP) or less.
An ‘integrated navigation system' typically incorporates the following components:
1. An inertial measurement device (e.g., an attitude and heading reference system, inertial reference unit, or inertial navigation system);
2. One or more external sensors used to update the position and/or velocity, either periodically or continuously throughout the flight (e.g., satellite navigation receiver, radar altimeter, and/or Doppler radar); and
3. Integration hardware and software.
1. Designed or modified for use in “missiles”; or
2. Designed or modified for airborne applications and having any of the following:
a. Capable of providing navigation information at speeds in excess of 600 m/s (1,165 nautical mph).
b. Employing decryption, designed or modified for military or governmental services, to gain access to GNSS secured signal/data; or
c. Being specially designed to employ anti-jam features (
(2) This entry does not control test, calibration or alignment equipment for Maintenance level I.
b. Profilometers having a measurement accuracy of 0.5 nm (5 angstrom) or less (better).
(2) This entry includes: Inertial Measurement Unit (IMU module) tester; IMU platform tester; IMU stable element handling fixture; IMU platform balance fixture; gyro tuning test station; gyro dynamic balance station; gyro run-in/motor test station; gyro evacuation and fill station; centrifuge fixtures for gyro bearings; accelerometer axis align station; and accelerometer test station.
(2) This entry includes: inertial measurement unit (IMU module) tester; IMU platform tester; IMU stable element handling fixture; IMU platform balance fixture; gyro tuning test station; gyro dynamic balance stations; gyro run-in/motor test stations; gyro evacuation and filling stations; centrifuge fixtures for gyro bearings; accelerometer axis align stations; and accelerometer test stations.
b. Reflectometers having a threshold accuracy of 50 ppm or less (better).
c. Prolifometers having a threshold accuracy of 0.5nm (5 angstrom) or less (better).
b. “Source code” for hybrid integrated systems that improves the operational performance or reduces the navigational error of systems to the level controlled by 7A003 by continuously combining inertial data with any of the following:
b.1. Doppler radar velocity data;
b.2. Global navigation satellite systems (
b.3. Data from ‘Data-Based Referenced Navigation’ (‘DBRN’) systems;
c. “Source code” for integrated avionics or mission systems that combine sensor data and employ “expert systems”;
d. “Source code” for the “development” of any of the following:
d.1. Digital flight management systems for “total control of flight”;
d.2. Integrated propulsion and flight control systems;
d.3. Fly-by-wire or fly-by-light control systems;
d.4. Fault-tolerant or self-reconfiguring “active flight control systems”;
d.5. Airborne automatic direction finding equipment;
d.6. Air data systems based on surface static data;
d.7. Raster-type head-up displays or three dimensional displays;
e. Computer-aided-design (CAD) “software” specially designed for the “development” of “active flight control systems”, helicopter multi-axis fly-by-wire or fly-by-light controllers or helicopter “circulation controlled anti-torque or circulation-controlled direction control systems” whose
b. Integration “software” specially designed for the equipment controlled by 7A003 or 7A103.a.
a.1. Airborne automatic direction finding equipment operating at frequencies exceeding 5 MHz;
a.2. Air data systems based on surface static data only, i.e., that dispense with conventional air data probes;
a.3. Raster-type head-up displays or three dimensional displays for “aircraft”;
a.4. Inertial navigation systems or gyro-astro compasses containing accelerometers or gyros controlled by 7A001 or 7A002;
a.5. Electric actuators (i.e., electromechanical, electrohydrostatic and integrated actuator package) specially designed for “primary flight control”;
a.6. “Flight control optical sensor array” specially designed for implementing “active flight control systems”;
b. “Development” “technology”, as follows, for “active flight control systems” (including fly-by-wire or fly-by-light):
b.1. Configuration design for interconnecting multiple microelectronic processing elements (on-board computers) to achieve “real time processing” for control law implementation;
b.2. Control law compensation for sensor location or dynamic airframe loads, i.e., compensation for sensor vibration environment or for variation of sensor location from the center of gravity;
b.3. Electronic management of data redundancy or systems redundancy for fault detection, fault tolerance, fault isolation or reconfiguration;
7E004.b.3. does not control “technology” for the design of physical redundancy.
b.4. Flight controls that permit inflight reconfiguration of force and moment controls for real time autonomous air vehicle control;
b.5. Integration of digital flight control, navigation and propulsion control data into a digital flight management system for “total control of flight”;
7E004.b.5 does not control:
1. “Development” “technology” for integration of digital flight control, navigation
2. “Development” “technology” for “aircraft” flight instrument systems integrated solely for VOR, DME, ILS or MLS navigation or approaches.
b.6. Full authority digital flight control or multisensor mission management systems employing “expert systems”;
N.B.: For “technology” for Full Authority Digital Engine Control (“FADEC”), see 9E003.a.9.
c. “Technology” for the “development” of helicopter systems, as follows:
c.1. Multi-axis fly-by-wire or fly-by-light controllers that combine the functions of at least two of the following into one controlling element:
c.1.a. Collective controls;
c.1.b. Cyclic controls;
c.1.c. Yaw controls;
c.2. “Circulation-controlled anti-torque or circulation-controlled directional control systems”;
c.3. Rotor blades incorporating “variable geometry airfoils” for use in systems using individual blade control.
b. Design “technology” for the configuration of hardened electrical circuits and subsystems;
c. Design “technology” for the determination of hardening criteria of .a and .b of this entry.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. Manned, untethered submersible vehicles, having any of the following:
b.1. Designed to operate autonomously and having a lifting capacity of all the following:
b.1.a. 10% or more of their weight in air;
b.1.b. 15 kN or more;
b.2. Designed to operate at depths exceeding 1,000 m;
b.3. Having all of the following:
b.3.a. Designed to carry a crew of 4 or more;
b.3.b. Designed to operate autonomously for 10 hours or more;
b.3.c. Having a range of 25 nautical miles or more;
b.3.d. Having a length of 21 m or less;
1. For the purposes of 8A001.b, “operate autonomously” means fully submerged, without snorkel, all systems working and cruising at minimum speed at which the submersible can safely control its depth dynamically by using its depth planes only, with no need for a support vessel or support base on the surface, sea-bed or shore, and containing a propulsion system for submerged or surface use.
2. For the purposes of 8A001.b, “range” means half the maximum distance a submersible vehicle can cover.
c. Unmanned, tethered submersible vehicles designed to operate at depths exceeding 1,000 m, having any of the following:
c.1. Designed for self-propelled manoeuvre using propulsion motors or thrusters controlled by 8A002.a.2; or
c.2. Having a fiber optic data link;
d. Unmanned, untethered submersible vehicles, having any of the following:
d.1. Designed for deciding a course relative to any geographical reference without real-time human assistance;
d.2. Having an acoustic data or command link; or
d.3. Having a fiber optic data or command link exceeding 1,000 m;
e. Ocean salvage systems with a lifting capacity exceeding 5 MN for salvaging objects from depths exceeding 250 m and having any of the following:
e.1. Dynamic positioning systems capable of position keeping within 20 m of a given point provided by the navigation system; or
e.2. Seafloor navigation and navigation integration systems for depths exceeding 1,000 m with positioning accuracies to within 10 m of a predetermined point;
f. Surface-effect vehicles (fully skirted variety) having all of the following characteristics:
f.1. A maximum design speed, fully loaded, exceeding 30 knots in a significant wave height of 1.25 m (Sea State 3) or more;
f.2. A cushion pressure exceeding 3,830 Pa; and
f.3. A light-ship-to-full-load displacement ratio of less than 0.70;
g. Surface-effect vehicles (rigid sidewalls) with a maximum design speed, fully loaded, exceeding 40 knots in a significant wave height of 3.25 m (Sea State 5) or more;
h. Hydrofoil vessels with active systems for automatically controlling foil systems, with a maximum design speed, fully loaded, of 40 knots or more in a significant wave height of 3.25 m (Sea State 5) or more;
i. Small waterplane area vessels having any of the following:
i.1. A full load displacement exceeding 500 tons with a maximum design speed, fully loaded, exceeding 35 knots in a significant wave height of 3.25 m (Sea State 5) or more; or
i.2. A full load displacement exceeding 1,500 tons with a maximum design speed, fully loaded, exceeding 25 knots in a significant wave height of 4 m (Sea State 6) or more.
A small waterplane area vessel is defined by the following formula: waterplane area at an operational design draught less than 2 × (displaced volume at the operational design draught)
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. Pressure housings or pressure hulls with a maximum inside chamber diameter exceeding 1.5 m;
a.2. Direct current propulsion motors or thrusters;
a.3. Umbilical cables, and connectors therefor, using optical fiber and having synthetic strength members;
b. Systems specially designed or modified for the automated control of the motion of submersible vehicles controlled by 8A001 using navigation data and having closed loop servo-controls:
b.1. Enabling a vehicle to move within 10 m of a predetermined point in the water column;
b.2. Maintaining the position of the vehicle within 10 m of a predetermined point in the water column;
b.3. Maintaining the position of the vehicle within 10 m while following a cable on or under the seabed;
c. Fiber optic hull penetrators or connectors;
d. Underwater vision systems, as follows:
d.1. Television systems and television cameras, as follows:
d.1.a. Television systems (comprising camera, monitoring and signal transmission equipment) having a limiting resolution when measured in air of more than 800 lines and specially designed or modified for remote operation with a submersible vehicle;
d.1.b. Underwater television cameras having a limiting resolution when measured in air of more than 1,100 lines;
d.1.c. Low light level television cameras specially designed or modified for underwater use containing all of the following:
d.1.c.1. Image intensifier tubes controlled by 6A002.a.2.a;
d.1.c.2. More than 150,000 “active pixels” per solid state area array;
Limiting resolution in television is a measure of horizontal resolution usually expressed in terms of the maximum number of lines per picture height discriminated on a test chart, using IEEE Standard 208/1960 or any equivalent standard.
d.2. Systems, specially designed or modified for remote operation with an underwater vehicle, employing techniques to minimize the effects of back scatter, including range-gated illuminators or “laser” systems;
e. Photographic still cameras specially designed or modified for underwater use below 150 m having a film format of 35 mm or larger, and having any of the following:
e.1. Annotation of the film with data provided by a source external to the camera;
e.2. Automatic back focal distance correction;
e.3. Automatic compensation control specially designed to permit an underwater camera housing to be usable at depths exceeding 1,000 m;
f. Electronic imaging systems, specially designed or modified for underwater use, capable of storing digitally more than 50 exposed images;
8A002.f does not control digital cameras specially designed for consumer purposes, other than those employing electronic image multiplication techniques.
g. Light systems, as follows, specially designed or modified for underwater use:
g.1. Stroboscopic light systems capable of a light output energy of more than 300 J per flash and a flash rate of more than 5 flashes per second;
g.2. Argon arc light systems specially designed for use below 1,000 m;
h. “Robots” specially designed for underwater use, controlled by using a dedicated computer, having any of the following:
h.1. Systems that control the “robot” using information from sensors which measure force or torque applied to an external object, distance to an external object, or tactile sense between the “robot” and an external object;
h.2. The ability to exert a force of 250 N or more or a torque of 250 Nm or more and
i. Remotely controlled articulated manipulators specially designed or modified for use with submersible vehicles, having any of the following:
i.1. Systems which control the manipulator using the information from sensors which measure the torque or force applied to an external object, or tactile sense between the manipulator and an external object;
i.2. Controlled by proportional master-slave techniques or by using a dedicated computer, and having 5 degrees of freedom of movement or more;
Only functions having proportional control using positional feedback or by using a dedicated computer are counted when determining the number of degrees of freedom of movement.
j. Air independent power systems, specially designed for underwater use, as follows:
j.1. Brayton or Rankine cycle engine air independent power systems having any of the following:
j.1.a. Chemical scrubber or absorber systems specially designed to remove carbon dioxide, carbon monoxide and particulates from recirculated engine exhaust;
j.1.b. Systems specially designed to use a monoatomic gas;
j.1.c. Devices or enclosures specially designed for underwater noise reduction in frequencies below 10 kHz, or special mounting devices for shock mitigation;
j.1.d. Systems specially designed:
j.1.d.1. To pressurize the products of reaction or for fuel reformation;
j.1.d.2. To store the products of the reaction;
j.1.d.3. To discharge the products of the reaction against a pressure of 100 kPa or more;
j.2. Diesel cycle engine air independent systems, having all of the following:
j.2.a. Chemical scrubber or absorber systems specially designed to remove carbon dioxide, carbon monoxide and particulates from recirculated engine exhaust;
j.2.b. Systems specially designed to use a monoatomic gas;
j.2.c. Devices or enclosures specially designed for underwater noise reduction in frequencies below 10 kHz or special mounting devices for shock mitigation;
j.2.d. Specially designed exhaust systems that do not exhaust continuously the products of combustion;
j.3. Fuel cell air independent power systems with an output exceeding 2 kW having any of the following:
j.3.a. Devices or enclosures specially designed for underwater noise reduction in frequencies below 10 kHz or special mounting devices for shock mitigation;
j.3.b. Systems specially designed:
j.3.b.1. To pressurize the products of reaction or for fuel reformation;
j.3.b.2. To store the products of the reaction;
j.3.b.3. To discharge the products of the reaction against a pressure of 100 kPa or more;
j.4. Stirling cycle engine air independent power systems, having all of the following:
j.4.a. Devices or enclosures specially designed for underwater noise reduction in frequencies below 10 kHz or special mounting devices for shock mitigation;
j.4.b. Specially designed exhaust systems which discharge the products of combustion against a pressure of 100 kPa or more;
k. Skirts, seals and fingers, having any of the following:
k.1. Designed for cushion pressures of 3,830 Pa or more, operating in a significant wave height of 1.25 m (Sea State 3) or more and specially designed for surface effect vehicles (fully skirted variety) controlled by 8A001.f;
k.2. Designed for cushion pressures of 6,224 Pa or more, operating in a significant wave height of 3.25 m (Sea State 5) or more and specially designed for surface effect vehicles (rigid sidewalls) controlled by 8A001.g;
l. Lift fans rated at more than 400 kW specially designed for surface effect vehicles controlled by 8A001.f or 8A001.g;
m. Fully submerged subcavitating or supercavitating hydrofoils specially designed for vessels controlled by 8A001.h;
n. Active systems specially designed or modified to control automatically the sea-induced motion of vehicles or vessels controlled by 8A001.f, 8A001.g, 8A001.h or 8A001.i;
o. Propellers, power transmission systems, power generation systems and noise reduction systems, as follows:
o.1. Water-screw propeller or power transmission systems, as follows, specially designed for surface effect vehicles (fully skirted or rigid sidewall variety), hydrofoils or small waterplane area vessels controlled by 8A001.f, 8A001.g, .8A001.h or 8A001.i:
o.1.a. Supercavitating, super-ventilated, partially-submerged or surface piercing propellers rated at more than 7.5 MW;
o.1.b. Contrarotating propeller systems rated at more than 15 MW;
o.1.c. Systems employing pre-swirl or post-swirl techniques for smoothing the flow into a propeller;
o.1.d. Light-weight, high capacity (K factor exceeding 300) reduction gearing;
o.1.e. Power transmission shaft systems, incorporating “composite” material components, capable of transmitting more than 1 MW;
o.2. Water-screw propeller, power generation systems or transmission systems designed for use on vessels, as follows:
o.2.a. Controllable-pitch propellers and hub assemblies rated at more than 30 MW;
o.2.b. Internally liquid-cooled electric propulsion engines with a power output exceeding 2.5 MW;
o.2.c. “Superconductive” propulsion engines, or permanent magnet electric propulsion engines, with a power output exceeding 0.1 MW;
o.2.d. Power transmission shaft systems, incorporating “composite” material components, capable of transmitting more than 2 MW;
o.2.e. Ventilated or base-ventilated propeller systems rated at more than 2.5 MW;
o.3. Noise reduction systems designed for use on vessels of 1,000 tons displacement or more, as follows:
o.3.a. Systems that attenuate underwater noise at frequencies below 500 Hz and consist of compound acoustic mounts for the acoustic isolation of diesel engines, diesel generator sets, gas turbines, gas turbine generator sets, propulsion motors or propulsion reduction gears, specially designed for sound or vibration isolation, having an intermediate mass exceeding 30% of the equipment to be mounted;
o.3.b. Active noise reduction or cancellation systems, or magnetic bearings, specially designed for power transmission systems, and incorporating electronic control systems capable of actively reducing equipment vibration by the generation of anti-noise or anti-vibration signals directly to the source;
p. Pumpjet propulsion systems having a power output exceeding 2.5 MW using divergent nozzle and flow conditioning vane techniques to improve propulsive efficiency or reduce propulsion-generated underwater-radiated noise.
q. Self-contained, closed or semi-closed circuit (rebreathing) diving and underwater swimming apparatus.
8A002.q does not control an individual apparatus for personal use when accompanying its user.
b. Naval equipment, as follows:
b.1. Diesel engines of 1,500 hp and over with rotary speed of 700 rpm or over specially designed for submarines;
b.2. Electric motors specially designed for submarines,
b.3. Nonmagnetic diesel engines, 50 hp and over, specially designed for military purposes. (An engine shall be presumed to be specially designed for military purposes if it has nonmagnetic parts other than crankcase, block, head, pistons, covers, end plates, valve facings, gaskets, and fuel, lubrication and other supply lines, or its nonmagnetic content exceeds 75 percent of total weight.);
b.4. Submarine and torpedo nets; and
b.5. Components, parts, accessories, and attachments for the above.
a.1. Heat release rate (at maximum rating) equal to or in excess of 190,000 BTU per hour per cubic foot of furnace volume;
a.2. Ratio of steam generated in pounds per hour (at maximum rating) to the dry weight of the boiler in pounds equal to or in excess of 0.83.
b. Components, parts, accessories, and attachments for the above.
a.1. Television systems (comprising camera, lights, monitoring and signal transmission equipment) having a limiting resolution when measured in air of more than 500 lines and specially designed or modified for remote operation with a submersible vehicle;
a.2. Underwater television cameras having a limiting resolution when measured in air of more than 700 lines;
Limiting resolution in television is a measure of horizontal resolution usually expressed in terms of the maximum number of lines per picture height discriminated on a test chart, using IEEE Standard 208/1960 or any equivalent standard.
b. Photographic still cameras specially designed or modified for underwater use, having a film formate of 35 mm or larger, and having autofocussing or remote focussing specially designed for underwater use;
c. Stroboscopic light systems, specially designed or modified for underwater use, capable of a light output energy of more than 300 J per flash;
d. Other underwater camera equipment, n.e.s.;
e. Other submersible systems, n.e.s.;
f. Vessels, n.e.s., including inflatable boats, and specially designed components therefor, n.e.s.
g. Marine engines (both inboard and outboard) and submarine engines, n.e.s.; and specially designed parts therefor, n.e.s.;
h. Other self-contained underwater breathing apparatus (scuba gear) and related equipment, n.e.s.;
i. Life jackets, inflation cartridges, compasses, wetsuits, masks, fins, weight belts, and dive computers;
j. Underwater lights and propulsion equipment;
k. Air compressors and filtration systems specially designed for filling air cylinders.
b. A density less than 561 kg/m
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. “Technology” for the overhaul or refurbishing of equipment controlled by 8A001, 8A002.b, 8A002.j, 8A002.o or 8A002.p.
N.B.: For propulsion systems designed or rated against neutron or transient ionizing, see the U.S. Munitions List, 22 CFR part 121.
9A001.a. does not control aero gas turbine engines which meet all of the following:
1. Certified by the civil aviation authority in a country listed in Supplement No. 1 to Part 743;
2. Intended to power non-military manned aircraft for which one of the following has been issued by a Participating State listed in Supplement No. 1 to Part 743 for the aircraft with this specific engine type.
a. A civil Type Certificate;
b. An equivalent document recognized by the International Civil Aviation Organization (ICAO).
b. Designed to power an aircraft designed to cruise at Mach 1 or higher for more than 30 minutes.
b. Whose design or production origins are either countries in Country Group D:1 or unknown to the manufacturer.
b. Specific items as may be determined to be not subject to the ITAR through the commodity jurisdiction procedure administered by the Department of State after March 15, 1999.
a.1. An autonomous flight control and navigation capability (e.g., an autopilot with an Inertial Navigation System);
a.2. Capability of controlled flight out of the direct visual range involving a human operator (e.g., televisual remote control).
b. Associated systems, equipment and components as follows:
b.1. Equipment specially designed for remotely controlling the “UAVs” controlled by 9A012.a.;
b.2. Guidance or control systems, other than those controlled in Category 7, specially designed for integration into “UAVs” controlled by 9A012.a.;
b.3. Equipment and components specially designed to convert a manned “aircraft” to a “UAV” controlled by 9A012.a.
9A012 does not control model aircraft.
a.1. Using reciprocating engines; or
a.2. Turbo prop engines with less than 600 horse power (h.p.);
a.3. T-37 model jet trainer aircraft; and
a.4. Specially designed component parts.
b. Ground transport vehicles (including trailers) and parts and components therefor designed or modified for non-combat military use and unarmed all-wheel drive vehicles capable of off-road use which have been manufactured or fitted with materials to provide ballistic protection to level III (National Institute of Justice standard 0108.01, September 1985) or better. (See § 770.2(h)—Interpretation 8).
c. Pressure refuelers, pressure refueling equipment, and equipment specially designed to facilitate operations in confined areas; and ground equipment, n.e.s, developed specially for military aircraft and helicopters, and specially designed parts and accessories, n.e.s.;
d. Pressurized breathing equipment specially designed for use in military aircraft and helicopters;
e. Military parachutes and complete canopies, harnesses, and platforms and electronic release mechanisms therefor, except such types as are in normal sporting use;
f. Military instrument flight trainers, except for combat simulation; and components, parts, attachments and accessories specially designed for such equipment.
a.1. Maximum thrust value greater than 400 N (achieved un-installed) excluding civil certified engines with a maximum thrust value greater than 8,890 N (achieved un-installed),
a.2. Specific fuel consumption of 0.15 kg/N/hr or less (at maximum continuous power at sea level static and standard conditions);
b. Engines designed or modified for use in “missiles”, regardless of thrust or specific fuel consumption.
b. Rocket nozzles;
c. Thrust vector control sub-systems;
Examples of methods of achieving thrust vector control controlled by 9A106.c includes:
1. Flexible nozzle;
2. Fluid or secondary gas injection;
3. Movable engine or nozzle;
4. Deflection of exhaust gas steam (jet vanes or probes); or
5. Thrust tabs.
d. Liquid and slurry propellant (including oxidizers) control systems, and specially designed components therefor, designed or modified to operate in vibration environments greater than 10 g rms between 20 Hz and 2000 Hz.
The only servo valves and pumps controlled by 9A106.d, are the following:
a. Servo valves designed for flow rates equal to or greater than 24 liters per minute, at an absolute pressure equal to or greater than 7 MPa, that have an actuator response time of less than 100 ms;
b. Pumps, for liquid propellants, with shaft speeds equal to or greater than 8,000 rpm or with discharge pressures equal to or greater than 7 MPa.
e. Flight control servo valves designed or modified for use in “missiles” and designed or modified to operate in a vibration environment greater than 10g rms over the entire range between 20Hz and 2 kHz.
a.1. An autonomous flight control and navigation capability; or
a.2. Capability of controlled-flight out of the direct vision range involving a human operator; and
b. Having any of the following:
b.1. Incorporating an aerosol dispensing system/mechanism with a capacity greater than 20 liters; or
b.2. Designed or modified to incorporate an aerosol dispensing system/mechanism with a capacity of greater than 20 liters.
9A120 does not control model aircraft, specially designed for recreational or competition purposes.
1. An aerosol consists of particulate or liquids other than fuel components, by-products or additives, as part of the payload to be dispersed in the atmosphere. Examples of aerosols include pesticides for crop dusting and dry chemicals for cloud seeding.
2. An aerosol dispensing system/mechanism contains all above devices (mechanical, electrical, hydraulic, etc.), which are necessary for storage and dispersion of an aerosol into the atmosphere. This includes the possibility of aerosol injection into the combustion exhaust vapor and into the propeller slip stream.
b. Off highway wheel tractors of carriage capacity 9 mt (20,000 lbs) or more; and parts and accessories, n.e.s.
c. On-Highway tractors, with single or tandem rear axles rated for 9 mt per axel (20,000 lbs.) or greater and specially designed parts.
a.1. Cargo, “C-45 through C-118” inclusive, and “C-121,”
a.2. Trainers, bearing a “T” designation and using piston engines,
a.3. Utility, bearing a “U” designation and using piston engines,
a.4. Liaison, bearing an “L” designation, and
a.5. Observation, bearing an “O” designation and using piston engines;
b. Civil aircraft;
Specify make and model of aircraft and type of avionic equipment on aircraft.
c. Aero gas turbine engines, and specially designed parts therefor.
9A991.c does not control aero gas turbine engines that are destined for use in civil “aircraft” and that have been in use in bona fide civil “aircraft” for more than eight years.
d. Aircraft parts and components, n.e.s.
e. Pressurized aircraft breathing equipment, n.e.s.; and specially designed parts therefor, n.e.s.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. Ceramic cores or shells.
Test section size in 9B005.a means the diameter of the circle, or the side of the square, or the longest side of the rectangle, at the largest test section location.
b. Devices for simulating flow-environments at speeds exceeding Mach 5, including hot-shot tunnels, plasma arc tunnels, shock tubes, shock tunnels, gas tunnels and light gas guns;
c. Wind tunnels or devices, other than two-dimensional sections, capable of simulating Reynolds number flows exceeding 25×10
a.1. Vibration environments equal to or greater than 10 g rms, measured ‘bare table', between 20 Hz and 2,000 Hz imparting forces equal to or greater than 5 kN; and
a.2. Any of the following:
a.2.a. Altitude equal to or greater than 15,000 m; or
a.2.b. Temperature range of at least −50 °C to +125 °C;
1. Item 9B106.a.2.a describes systems that are capable of generating a vibration environment with a single wave (e.g., a sine wave) and systems capable of generating a broad band random vibration (i.e., power spectrum).
2. The term ‘bare table' means a flat table, or surface, with no fixture or fittings.
b. Environmental chambers capable of simulating all of the following flight conditions:
b.1. Acoustic environments at an overall sound pressure level of 140 dB or greater (referenced to 2 × 10
b.2. Any of the following:
b.2.a. Altitude equal to or greater than 15,000 m; or
b.2.b. Temperature range of at least −50 °C to +125 °C.
b. Capable of simultaneously measuring the three axial thrust components.
b. Tooling, fixtures or measuring equipment for the “laser”, water jet or ECM/EDM hole drilling processes controlled by 9E003.c;
c. Ceramic core leaching equipment;
d. Ceramic core manufacturing equipment or tools;
e. Ceramic shell wax pattern preparation equipment;
f. Ceramic shell burn out or firing equipment.
(2) The only resin impregnated fiber prepregs controlled by entry 9C110 are those using resins with a glass transition temperature (T
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
(2) “Software” “required” for the “development” of equipment or “technology” subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls is also subject to the same licensing jurisdiction. (
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
b. Fault-tolerant “software” used in “FADEC” systems for propulsion systems and associated test facilities.
b. “Software” for testing aero gas turbine engines, assemblies or components, specially designed to collect, reduce and analyze data in real time, and capable of feedback control, including the dynamic adjustment of test articles or test conditions, as the test is in progress;
c. “Software” specially designed to control directional solidification or single crystal casting;
d. “Software” in “source code”, “object code” or machine code required for the “use” of active compensating systems for rotor blade tip clearance control.
9D004.d does not control “software” embedded in uncontrolled equipment or required for maintenance activities associated with the calibration or repair or updates to the active compensating clearance control system.
e. “Software” specially designed or modified for the “use” of “UAVs” and associated systems, equipment and components controlled by 9A012.
“Development” or “production” “technology” controlled by 9E001 to 9E003 for gas turbine engines remains controlled when used as “use” “technology” for repair, rebuild and overhaul. Excluded from control are: technical data, drawings or documentation for maintenance activities directly associated with calibration, removal or replacement of damaged or unserviceable line replaceable units, including replacement of whole engines or engine modules.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions.
a.1. Gas turbine blades, vanes or tip shrouds made from directionally solidified (DS) or single crystal (SC) alloys having (in the 001 Miller Index Direction) a stress-rupture life exceeding 400 hours at 1,273 K (1,000 °C) at a stress of 200 MPa, based on the average property values;
a.2. Multiple domed combustors operating at average burner outlet temperatures exceeding 1,813 K (1,540 °C) or combustors incorporating thermally decoupled combustion liners, non-metallic liners or non-metallic shells;
a.3. Components manufactured from any of the following:
a.3.a. Organic “composite” materials designed to operate above 588 K (315 °C);
a.3.b. Metal “matrix” “composite”, ceramic “matrix”, intermetallic or intermetallic reinforced materials controlled by 1C007;
a.3.c. “Composite” material controlled by 1C010 and manufactured with resins controlled by 1C008.
a.4. Uncooled turbine blades, vanes, tip-shrouds or other components designed to operate at gas path temperatures of 1,323 K (1,050 °C) or more;
a.5. Cooled turbine blades, vanes or tip-shrouds, other than those described in 9E003.a.1, exposed to gas path temperatures of 1,643 K (1,370 °C) or more;
a.6. Airfoil-to-disk blade combinations using solid state joining;
a.7. Gas turbine engine components using “diffusion bonding” “technology” controlled by 2E003.b;
a.8. Damage tolerant gas turbine engine rotating components using powder metallurgy materials controlled by 1C002.b;
a.9. Full authority digital electronic engine control (FADEC) for gas turbine and combined cycle engines and their related diagnostic components, sensors and specially designed components;
a.10. Adjustable flow path geometry and associated control systems for:
a.10.a. Gas generator turbines;
a.10.b. Fan or power turbines;
a.10.c. Propelling nozzles;
Adjustable flow path geometry and associated control systems in 9E003.a.10 do not include inlet guide vanes, variable pitch fans, variable stators or bleed valves for compressors.
9E003.a.10 does not control “development” or “production” “technology” for adjustable flow path geometry for reverse thrust.
a.11. Hollow fan blades;
b. “Technology” “required” for the “development” or “production” of any of the following:
b.1. Wind tunnel aero-models equipped with non-intrusive sensors capable of transmitting data from the sensors to the data acquisition system;
b.2. “Composite” propeller blades or propfans capable of absorbing more than 2,000 kW at flight speeds exceeding Mach 0.55;
c. “Technology” “required” for the “development” or “production” of gas turbine engine components using “laser”, water jet, ECM or EDM hole drilling processes to produce holes having any of the following sets of characteristics:
c.1. All of the following:
c.1.a. Depths more than four times their diameter;
c.1.b. Diameters less than 0.76 mm;
c.1.c. Incidence angles equal to or less than 25 °;
c.2. All of the following:
c.2.a. Depths more than five times their diameter;
c.2.b. Diameters less than 0.4 mm;
c.2.c. Incidence angles of more than 25 °;
For the purposes of 9E003.c, incidence angle is measured from a plane tangential to the airfoil surface at the point where the hole axis enters the airfoil surface.
d. “Technology” “required” for the “development” or “production” of helicopter power transfer systems or tilt rotor or tilt wing “aircraft” power transfer systems;
e. “Technology” for the “development” or “production” of reciprocating diesel engine ground vehicle propulsion systems having all of the following:
e.1. A box volume of 1.2 m
e.2. An overall power output of more than 750 kW based on 80/1269/EEC, ISO 2534 or national equivalents;
e.3. A power density of more than 700 kW/m
Box volume: the product of three perpendicular dimensions measured in the following way:
Length: The length of the crankshaft from front flange to flywheel face;
Width: The widest of the following:
a. The outside dimension from valve cover to valve cover;
b. The dimensions of the outside edges of the cylinder heads; or
c. The diameter of the flywheel housing.
Height: The largest of the following:
a. The dimension of the crankshaft center-line to the top plane of the valve cover (or cylinder head) plus twice the stroke; or
b. The diameter of the flywheel housing.
f. “Technology” “required” for the “production” of specially designed components, as follows, for high output diesel engines:
f.1. “Technology” “required” for the “production” of engine systems having all of the following components employing ceramics materials controlled by 1C007:
f.1.a Cylinder liners;
f.1.b. Pistons;
f.1.c. Cylinder heads;
f.1.d. One or more other components (including exhaust ports, turbochargers, valve guides, valve assemblies or insulated fuel injectors);
f.2. “Technology” “required” for the “production” of turbocharger systems, with single-stage compressors having all of the following:
f.2.a. Operating at pressure ratios of 4:1 or higher;
f.2.b. A mass flow in the range from 30 to 130 kg per minute;
f.2.c. Variable flow area capability within the compressor or turbine sections;
f.3. “Technology” “required” for the “production” of fuel injection systems with a specially designed multifuel (e.g., diesel or jet fuel) capability covering a viscosity range from diesel fuel (2.5 cSt at 310.8 K (37.8 °C)) down to gasoline fuel (0.5 cSt at 310.8 K (37.8 °C)), having both of the following:
f.3.a. Injection amount in excess of 230 mm
f.3.b. Specially designed electronic control features for switching governor characteristics automatically depending on fuel property to provide the same torque characteristics by using the appropriate sensors;
g. “Technology” “required” for the development” or “production” of high output diesel engines for solid, gas phase or liquid film (or combinations thereof) cylinder wall lubrication, permitting operation to temperatures exceeding 723 K (450 °C), measured on the cylinder wall at the top limit of travel of the top ring of the piston.
h. “Technology” not otherwise controlled in 9E003.a.1 through a.10 and currently used in the “development”, “production”, or overhaul of hot section parts and components of civil derivatives of military engines controlled on the U.S. Munitions List.
(2) “Technology” controlled by 9E102 for commodities or software subject to the export licensing jurisdiction of the Department of State in 9A004 to 9A012, 9A101.b, 9A104, 9A105, 9A106.a to .c, 9A107 to 9A109, 9A110 that are specially designed for use in missile systems and subsystems, 9A111, 9A115 to 9A119, 9B115, 9B116, 9D103, specified software in 9D104, and 9D105 are subject to the export licensing authority of the U.S. Department of State, Directorate of Defense Trade Controls (see 22 CFR part 121).
b. Gas bearing for turbine engine rotor assemblies.
For
1.
“Technology” “required” for the “development”, “production”, or “use” of a controlled product remains controlled even when applicable to a product controlled at a lower level.
License Exception TSU is available for “technology” that is the minimum necessary for the installation, operation, maintenance (checking), and repair of those products that are eligible for License Exceptions or that are exported under a license.
N.B.: This does not allow release under a License Exception of the repair “technology” controlled by 1E002.e, 1E002.f, 8E002.a, or 8E002.b.
N.B.: The “minimum necessary” excludes “development” or “production” technology and permits “use” technology only to the extent “required” to ensure safe and efficient use of the product. Individual ECCNs may further restrict export of “minimum necessary” information.
2.
a. Sold from stock at retail selling points, without restriction, by means of:
1. Over the counter transactions;
2. Mail order transactions;
3. Electronic transactions;
4. Telephone call transactions;
b. Designed for installation by the user without further substantial support by the supplier.
The General Software Note does not apply to “software” controlled by Category 5—part 2 (“Information Security”). For “software” controlled by Category 5, part 2, see Supplement No. 1 to part 774, Category 5, part 2, Note 3—Cryptography Note.
(1) “Specially designed for medical end-use” means designed for medical treatment or the practice of medicine (does not include medical research).
(2) “Incorporate” into medical equipment means to integrate with, or work indistinguishably into such equipment.
(3) Except for such software that is made publicly available consistent with § 734.3(b)(3) of the EAR, commodities and software “specially designed for medical end-use” remain subject to the EAR.
(4) See also § 770.2(b) interpretation 2, for other types of equipment that incorporate items on the Commerce Control List that are subject to the EAR.
(5) For computers used with medical equipment, see also ECCN 4A003 note 2 regarding the “principal element” rule.
(6) For commodities and software specially designed for medical end-use that incorporate an encryption or other “information security” item subject to the EAR, see also Note 1 to Category 5, Part II of the Commerce Control List.
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations that were made by documents published in the
For the period before January 1, 2001, see the “List of CFR Sections Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000” published in 11 separate volumes.