[Federal Register Volume 61, Number 58 (Monday, March 25, 1996)]
[Rules and Regulations]
[Pages 12714-13041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4173]
[[Page 12713]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
Bureau of Export Administration
_______________________________________________________________________
15 CFR Part 730, et al.
Export Administration Regulation; Simplification of Export
Administration Regulations; Final Rule
Federal Register / Vol. 61, No. 58 / Monday, March 25, 1996 / Rules
and Regulations
[[Page 12714]]
DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 730, 732, 734, 736, 738, 740, 742, 744, 746, 748, 750,
752, 754, 756, 758, 760, 762, 764, 766, 768, 770, 772, and 774,
768A, 769A, 770A, 771A, 772A, 773A, 774A, 775A, 776A, 777A, 778A,
779A, 785A, 786A, 787A, 788A, 789A, 790A, 791A, 799A
[Docket No. 950407094-6022-02]
RIN 0694-AA67
Export Administration Regulation; Simplification of Export
Administration Regulations
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Interim rule.
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SUMMARY: This interim rule restructures and reorganizes the Export
Administration Regulations (EAR), the regulatory regime through which
the Bureau of Export Administration imposes export and reexport
controls on those items and activities within its jurisdiction. This
interim rule clarifies the language of the EAR, simplifies their
application, and generally makes the export control regulatory regime
more user-friendly.
DATES: Effective Dates: This interim rule is effective April 24, 1996,
except part 752, which shall be effective March 25, 1996. Removal of
newly designated Sec. 771A.25(d) shall be effective March 25, 1996.
Removal of newly designated parts 768A through 779A, 785A through 791A,
and 799A will be effective November 1, 1996.
COMMENTS: Comments on this rule must be received on or before May 24,
1996.
USE OF FORMS: On June 15, 1996 BXA will begin requiring applicants to
submit certain new forms to implement this interim rule. The new Form
BXA-748P, Multipurpose Application will be effective June 15, 1996.
Before June 15, 1996 BXA will not accept Form BXA-748P. After June 15,
1996 BXA will not accept existing Forms BXA-622P or BXA-699P. See
SUPPLEMENTARY INFORMATION for guidance on which forms to use before
June 15, 1996, and which forms to use after that date.
ADDRESSES: Written comments should be sent to Cecil Hunt, Deputy Chief
Counsel for Export Administration, United States Department of
Commerce, Bureau of Export Administration, Fourteenth Street and
Constitution Avenue, N.W., Room 3839, Washington, D.C. 20230.
FOR FURTHER INFORMATION CONTACT: Larry E. Christensen, Director,
Regulatory Policy Division, Bureau of Export Administration, (202) 482-
2440.
SUPPLEMENTARY INFORMATION:
Background
On September 30, 1993, the Secretary of Commerce submitted to the
Congress a report of the Trade Promotion Coordinating Committee (TPCC),
entitled Toward a National Export Strategy. The report included the
following among its goals:
Undertake a comprehensive review of the Export Administration
Regulations to simplify, clarify, and make the regulations more
user-friendly.
In November 1993, BXA organized a Task Group, drawn from several of
its offices, to carry out the TPCC recommendation. The Task Group
launched its review project by publishing an advance notice of proposed
rulemaking (ANPRM) in the Federal Register on February 10, 1994 (59 FR
6528). This notice was designed to solicit comments from industry and
the interested public. The ANPRM asked for suggestions concerning
improvements BXA could make to the EAR and described several specific
issues on which BXA was particularly interested in receiving public
input.
Over seven months during the development of a proposed rule with
request for comments that was published in the Federal Register on May
11, 1995, titled ``Export Administration Regulations; Simplification of
Export Administration Regulations'' (60 FR 25268) (hereafter referred
to as proposed rule), BXA shared four discussion packages with and
sought comments from the Regulations & Procedures Technical Advisory
Committee (RPTAC), an advisory committee consisting of industry
representatives intimately familiar with the private sector's role in
using the EAR. The packages were also made available to other
interested members of the public, with the last two being made
available electronically on FedWorld. The four discussion packages were
dated August 2, 1994, September 29, 1994, January 12, 1995, and
February 28, 1995.
The May 11 proposed rule reflected several new features based upon
the comments received from the public pursuant to the ANPRM, and the
RPTAC, and BXA's own assessment of how the EAR could be improved. Such
features include:
No license or other authorization would be required for
any transaction under BXA jurisdiction unless the regulations
affirmatively state the requirement. (Existing regulations state that
all exports are prohibited unless an applicable general license has
been established or a validated license or other authorization has been
granted by BXA.)
The terms ``general'' license and ``validated'' license
would be dropped. The term ``license'' would be used to refer only to
authorization issued by BXA upon application. The proposed regulations
would convert the many existing general licenses into a smaller number
of ``exceptions'' to require the obligation to seek a license when the
Commerce Control list indicates that the particular item going to the
stated country generally requires a license.
The parts of the EAR would be arranged to give the reader
a logical path to follow.
The affirmative statements of the need to obtain a
license, scattered throughout various parts of the existing EAR, would
be consolidated into ten general prohibitions and described in a
separate part. One part would contain the license review policy for all
list-based license requirements; another part would provide for the
requirements and review policies of licenses based on the end-use or
end-user involved in a proposed export or reexport; and the list-based
license requirements would be contained in the Commerce Control List
(CCL) indicating the reason for control and the Country Chart
indicating the country scope of each reason for control.
The Country Groups used in the existing regulations would
be revised in favor of Groups which better reflect post-Cold War
circumstances.
The CCL would be redesigned to state the reasons for
control more specifically within each Export Control Classification
Number (ECCN).
The redesigned CCL would be used in tandem with a new
Country Chart that would indicate whether a license is required for any
ECCN to any country in the world and the reason or reasons for control.
Over 80 commenters responded to the proposed rule. Many commenters
recommended that BXA take sufficient time to draft an interim rule to
ensure ample opportunity to review and discuss with industry their
comments on the May 11 proposed rule, and incorporate them into an
interim rule. BXA has taken the time necessary to thoroughly review,
analyze, and discuss industry comments on the proposed rule. In
addition, BXA conducted 18 town-hall style fora (hereafter referred to
as town-hall fora) that reached over 1,000 industry representatives,
and met with the RPTAC and other interested
[[Page 12715]]
public to discuss their comments and concerns in more detail.
Following is a detailed part-by-part description of this interim
rule, and a review of comments received pursuant to the May 11 proposed
rule:
Implementation
This interim rule will become effective April 24, 1996; however,
final compliance with this interim rule is not compelled until November
1, 1996. During the period between the effective date and the final
compliance date of this interim rule, you must comply with the
provisions of either the existing Export Administration Regulations
(EAR) (redesignated 15 CFR 768A through 799A by this interim rule)
including any amendments thereto that are published in the Federal
Register or the provisions of this interim rule including any
amendments thereto that are published in the Federal Register.
Notwithstanding the general effective date of this interim rule,
the repeal of the importer statement requirement for General License
GCT is effective immediately, and the Special Comprehensive License
provisions in part 752 are effective immediately. For up to March 25,
1997, holders of issued and outstanding special licenses may continue
to use those special licenses according to their terms and conditions
and according to the special license provisions of the existing EAR.
The majority of the commenters requested a 90 day delayed effective
date plus an additional six to twelve months during which one must
comply with either the existing Export Administration Regulations or
this interim rule. The cost of changes to internal information systems
and the time to train personnel on the new system were the main reasons
cited for requesting a delayed effective date and a transition period.
Several large companies said that their computer systems will require
substantial reprogramming for the new License Exception group symbols,
the new Destination Control Statement (DCS), and the renumbering of
entries on the Commerce Control List in part 774 to conform to the
European Union numbering system.
Some firms indicated that implementation costs would be reduced if
they were allowed a span of time in which to implement the changes made
by this interim rule. Costs would be higher if a single implementation
date were required because their information systems departments would
not have flexibility regarding scheduling and might be required to hire
additional temporary employees or pay overtime. Many large firms cannot
implement the computer changes on one given day. After receiving the
above comments in writing and during the town-hall fora, BXA made
additional contacts with several firms. All acknowledge that they can
efficiently implement the changes required by this interim rule within
six months. Since those discussions, BXA has determined to modify the
Destination Control Statement (DCS) as noted below to closely following
the existing DCS widely used by many firms. BXA is hopeful that this
decision will further reduce the costs of implementation of this
interim rule.
BXA is sensitive to the costs of implementation, and that is the
reason this interim rule provides for a rather long implementation
period. Through this mechanism, BXA hopes to reduce the marginal costs
of implementation by reducing necessary overtime, contracting, and
training beyond that regularly scheduled. BXA will also assist the
business community in training for this interim rule. BXA has already
announced a substantial program to conduct training sessions around the
United States to make it convenient for firms to train their personnel.
The new Multipurpose Application Form, BXA-748P, will replace the
Application for Export License (BXA-622P) and the Request for Reexport
Authorization (BXA-699P). It will also serve as an application for the
Special Comprehensive License. Additionally, the BXA-748P will
accommodate Commerce Classification Requests, thus allowing item
classifications to be handled electronically.
BXA will not accept the new forms listed in this paragraph for
applications and requests received before June 15. BXA will not accept
existing forms listed in this paragraph for applications and requests
received on or after June 15. The existing Form BXA-622P Application
for Export License, existing Form BXA-685P, Request for Amendment
Action, and existing Form BXA-699P, Request for Reexport Authorization
will all be replaced by new Form BXA 748P, Multipurpose Application.
The existing Form BXA-622P-A, Commodity Description Supplement will be
replaced by new Form BXA-748P-A, Item Appendix. Existing Form 622P-B,
End-user Supplement will be replaced by new Form 748P-B, End-user
Appendix. Form BXA-6052P, Statement by Foreign Consignee in Support of
Special License Application will be replaced by Form BXA-752P,
Statement by Consignee in Support of Special Comprehensive License.
Existing Form BXA-629P, Statement by Ultimate Consignee and
Purchaser will be replaced by new Form BXA-711, Statement by Ultimate
Consignee and Purchaser. However, Form BXA-629P may be used until
November 1, 1996.
Use of Existing Form BXA 686-P, Statement by Foreign Importer of
Aircraft or Vessel Repair Parts and Form BXA 6026-P, Service Supply
(SL) Statement by U.S. Exporter will be discontinued on March 25, 1996,
because the Aircraft and Vessel Repair Station Procedure at Sec. 773A.8
and the Service Supply (SL) Procedure at Sec. 773A.7 of the existing
EAR will be replaced by the Special Comprehensive License in part 752
of this interim rule.
BXA will stop issuing BXA Form-648P, Notification of Delivery
Verification Requirement on June 15, 1996. For licenses issued on or
after that date, the delivery verification requirement will be printed
on the license itself.
The Knowledge Standard
One step is being taken in this interim rule that changes language
in many parts of the EAR, but without changing the intended meaning.
Several commenters noted that the proposed rule continued use in the
EAR of differing expressions as to knowledge, such as ``know'' or
``know or have reason to know''. Three commenters called for the
removal of the term ``reason to know'' and one commenter requested a
uniform adoption of ``know or have reason to know''. BXA has decided to
adopt the term ``knowledge'' (together with variants, such as ``know''
or ``knowing'') as the standard usage and defines this term in the EAR.
This definition is added to part 772--Definitions. Variants, such as
``reason to believe'' are being retained in the EAR where they are used
to follow statutory wording. This definition confirms the intention of
BXA that ``know'' and terms such as ``know or have reason to know'' be
given the same meaning and that this meaning include more than positive
knowledge. This definition is not being applied to part 760--
Restrictive Practices and Boycotts, leaving the interpretation of such
terms in this distinct part of the EAR to be independent of export
control usage.
Part-by-Part Analysis
Part 730--General Information
Part 730 provides a general introduction to the EAR. It is intended
for the first-time reader and is not regulatory.
Seven of the public comments referred to part 730. There was broad
[[Page 12716]]
support for the listing of other control agencies, together with
telephone and fax numbers for obtaining information. Four commenters
noted that similar information was provided in a supplement to the
scope part of the proposed rule, with duplication and some
inconsistency. BXA has eliminated that supplement and includes the
agency information in this part 730. Three commenters requested that
the listing be broadened, and noted the absence of reference to certain
controls of other agencies listed in the existing EAR. This listing has
been updated and extended. BXA is not, however, acting on requests to
add more detailed information on controls administered by other
agencies, nor on areas of possible overlap, as this would unduly
complicate this brief introduction to the EAR.
Three commenters called for combining part 730 with the Steps part
in some way. BXA concluded that a merger of the two parts is not
advisable, as the amount of detail needed in steps would obscure the
more general introductory information offered in part 730. Many
comments on the two parts called for flow charts and wiring diagrams.
BXA has recently received authorization from the Office of the Federal
Register to include such additional aids, and BXA will develop those
materials for inclusion in the EAR at a later date.
Two commenters questioned the basic, non-regulatory, approach taken
in part 730, citing such elements as the Sec. 730.6 reference to the
benefits from multilateral controls and the Sec. 730.8 explanation of
why the EAR are lengthy and detailed. BXA continues to believe that
this kind of introduction to the EAR will be helpful to persons new to
the field.
Part 732--Steps
By cross-references to the relevant provisions, part 732 describes
the suggested steps for you to determine applicability of (1) the scope
of the EAR described in part 734, (2) each of the general prohibitions
in part 736, (3) the License Exceptions in part 740, and (4) other
requirements such as clearing the U.S. Customs Service, keeping
records, and completing license applications. This part 732 describes
the organization of the EAR, informs you of the relationship among the
parts and provisions, and describes the appropriate order in which to
consider the various provisions of the EAR by cross-referencing those
provisions. Supplement No. 1 to this part 732, contains the ``Know Your
Customer'' Guidance, which has been moved from part 744--Control
Policy--End-user and End-use Based Control. In this interim rule, BXA
has also added examples of Red Flags referred to in the ``Know Your
Customer'' Guidance.
Over thirty commenters referred to the part on steps in the
proposed rule, and all but one supported the inclusion of steps to
guide the reader. Of these commenters, more than half stated that the
steps part should be relocated so that it could serve as a type of
road-map in the use of the entire EAR. The proposed rule provided for
steps at part 736 after the parts on scope and general prohibitions.
BXA agrees that the steps part is more useful if relocated closer to
the beginning of the EAR. Therefore, in this interim rule, the steps
part is renumbered as part 732; and it precedes the part on scope that
is renumbered as part 734 and the part on prohibitions that is
renumbered as part 736.
About one quarter of the commenters on this part urged some type of
restructuring or reordering of the steps within the part; however, the
comments were varied. Based upon these written comments and a
substantial number of oral comments made during the town-hall fora, BXA
believes that it is useful to organize the steps in categories
regarding the scope of the EAR, the ten general prohibitions, the
License Exceptions, and additional requirements such as keeping
records, documentation for clearing the U.S. Customs Service, and
completing license applications. In addition, one commenter urged that
the steps regarding prohibitions at part 736 make clear the distinction
between the first three prohibitions that are shaped by product
parameters on the Commerce Control List versus the last seven
prohibitions that address certain types of activities without regard to
the product parameters on the Commerce Control List. Another common
suggestion was to give greater prominence and clarity to the
determination of the proper ECCN for items, a process referred to as
classification. This interim rule adopts those recommendations.
One commenter suggested that the steps part in the proposed rule
included too many cross-references to the other parts and required the
reader to flip too many pages. Several other commenters recommended
additional cross-references in the EAR. BXA believes that the part on
steps should continue to contain cross-references for fundamental
reasons. The part on steps is not a substitute for the language of
other parts of the EAR and the part on steps would be much too long if
it contained a complete explanation or repetition of every other
provision of the EAR. Rather, it is a type of road-map, guide, or
written decision tree that helps the reader understand the order in
which to read the various provisions and to determine which provisions
are relevant to a given transaction or activity. By this means, the
part on steps serves the purpose of describing the relationship among
the provisions of the EAR, something that was not done in the EAR
before the proposed rule. When these steps are followed in the proper
order, the reader will consider those provisions of the EAR necessary
to determine his or her rights and duties.
It would be impossible to develop a useful series of steps without
use of cross-references to the various provisions of the EAR; however,
BXA is sensitive to a reader's understandable desire for steps that may
be read with an easy flow and with no more cross-referencing than
necessary to specify the language that creates regulatory rights and
obligations. To this end, where possible, we have inserted brief
explanatory references that give the reader an indication of the
substance of the referenced provision. One comment made often by the
public is that the steps part must contain guidance and not create
additional regulatory duties. BXA agrees that part 732 is not
controlling for purposes of describing the requirements of the EAR; the
parts of the EAR referenced in the steps are controlling. For this
reason, part 732 must reference the regulatory provisions in the other
parts of the EAR.
An organization of trade associations, supported by several other
commenters, suggested several additional drafting changes to improve
the part on steps. Nearly all of those recommendations are included in
this interim rule.
Part 734--Scope
This part establishes the rules for determining whether
commodities, software, technology, software and activities of U.S. and
foreign persons are subject to the EAR. ``Subject to the EAR'' is a
term used to identify the items and activities that BXA regulates under
the EAR. Those items and activities not so identified are not regulated
under the EAR.
The term ``subject to the EAR'' does not imply that a license is
required for any particular item or activity. Licensing requirements
are spelled out in other parts of the EAR. The term does define the
bounds of the authority that BXA has exercised under the EAR. The term
is particularly useful to define the limits of the recordkeeping
requirements, certain denial orders, and the end use and end user
obligations related to proliferation controls.
[[Page 12717]]
This part also provides certain key terms and principles used
throughout this interim rule. These include definitions for the terms
``export'' and ``reexport.'' A comprehensive listing of definitions is
included in part 772.
In addition to a change in designation from part 732 in the
proposed rule to part 734 in this interim rule, this interim rule makes
substantial changes in part 734 as a result of comments received on the
proposed rule. BXA received 31 comments on this part. BXA has adopted
many of the recommendations contained in the public comments and they
are reflected in the interim rule.
Section 734.1 has been substantially revised. The proposed rule
included a list of all the contents to part 734 with specificity. One
commenter urged that this listing amounted to a table of contents and
recommended deletion. This interim rule follows this recommendation
and, and includes an introduction that explains the contents of this
part and how it fits into the overall structure of the EAR.
Certain commenters recommended that definitions be included in part
772, Definitions, rather than in this part. This interim rule removes
the definitions for the terms ``item'' and ``you'', and moves them to
part 772. Because the terms ``export'' and ``reexport'' are so key to
the EAR, these terms have been retained in this section, with certain
modifications. Section 732.2(d) of the proposed rule defined exports
and reexports of technology and software, but did not include a
definition of exports and reexports of commodities. This interim rule
amends the definition of ``export'' and ``reexport'' to apply to
commodities, technology, and software.
A number of commenters also noted that, as written in the proposed
rule, the reexport in a foreign country of technology by release by one
foreign national to another foreign national could be read to include
release of foreign-origin technology, with no United States nexus. This
interim rule limits this provision to ``items subject to the EAR'' and
thereby limits the provision to U.S.-origin technology.
This interim rule adds three additional provisions to part 734.
Section 734.2(d)(5) reflects the principle that exports that will
transit a country on their way to a third country or are intended to be
reexported to a third country are deemed under the EAR to be exports to
the third country. This principle was not included in the proposed
rule, except as it relates to Canada (Sec. 732.12 of the proposed
rule). Section 734.2(d)(6) reflects the principle that appeared in
Sec. 732.15 of the proposed rule that an export to a territory,
possession, or department of a country is deemed under the EAR to be an
export to that country. Finally Sec. 734.2(d)(7) clarifies that
shipments among the states of the United States and its territories,
dependencies, and possessions do not constitute exports or reexports.
A significant number of commenters indicated that the provision
regarding Canada in Sec. 732.15 of the proposed rule was misleading and
tended to confuse the distinction between the scope of the EAR and
licensing requirements with respect to Canada. BXA agrees, and this
interim rule omits this provision. The minimal number of instances
where licenses are required for Canada is reflected on the CCL and does
not need to be recited in this part. As noted above, the in-transit and
intended reexport principles contained in the Canada provision are
retained in this interim rule and are made applicable to all
destinations. Finally, any License Exceptions that apply to Canada are
reflected in part 740, License Exceptions.
In the proposed rule, BXA invited comments on the implementation of
a de minimis rule for software and technology. In particular, BXA said
that we were considering a requirement for a one-time report on
calculations under the de minimis rule. Throughout the comment period,
BXA made clear at the town-hall fora that there are three criteria of
concern in carrying out the proposal without a reporting requirement.
First, for transfers between related parties, the export price of the
software or technology exported from the United States must reflect an
arms-length price or fair market value. Second, estimates of future
sales of foreign-made software must be reasonable. Third, selection of
the scope of foreign technology for measuring U.S.-content must be
reasonable.
BXA sought comments and suggestions on a one-time report. This was
to determine how to avoid the potential misuse of the above criteria
without requiring a one-time report. BXA also sought comments on
whether the calculations should be made only under United States-based
generally accepted accounting principles. From the outset, BXA
concluded that strict accounting standards would be useful to prevent
misuse of the rule through unreasonably low transfer prices for U.S.
software or technology transferred to related parties. BXA also
believed there is no need to create a new U.S. accounting standard for
implementation of this rule.
No commenter offered a solution to avoid misuses in the choice
amortization assumptions for software and the selection of an
appropriate universe to measure U.S.-content in foreign commingled
technology. All comments on the report opposed its requirement.
Commenters supported the rule with the hope that the de minimis
exclusion might be granted by BXA without requiring a report. However,
many of these same firms acknowledge that they and foreign parents,
subsidiaries and customers will invariably make de minimis calculations
on valuation assumptions most likely to result in a finding that U.S.
content is below the relevant de minimis level. The tenor of the
comments also suggests that most commenters did not fully appreciate
that the de minimis relief could not likely be granted without either a
one-time report or some other means to avoid the potential misuses of
the criteria.
Some commenters called the report a burden almost as heavy as the
license requirement. Some of those commenters stated expresses a belief
that the existing rule is simply not enforced and likely is not
enforceable. They also concluded that compliance with the existing
commingled rule is weak. However, some commenters acknowledged that
without a report requirement in this interim rule, they would
nonetheless submit advisory requests before relying on the de minimis
exclusions. Such advisory requests would require the same information
as the report required by this interim rule. Therefore for such
companies, the report requirement of this interim rule does not add
costs for use of the relief granted by this interim rule.
Almost all foreign commenters on the de minimis rule opposed a
requirement for U.S. accounting standards. They argued that they should
be permitted to use their home-country accounting standards and that
use of U.S. accounting standards would be too costly.
BXA has determined to require a one-time report and to permit
various accounting standards so long as the export price is not
depreciated or otherwise reduced by accounting conventions. With the
requirement of a one-time report, there is far less need for a single,
strict accounting standard.
The report will require a description of the nature and export
price of the item exported from the United States, the estimate of
future software sales in units and value along with the basis for those
estimates within the relevant market category, and a description of the
technology and its value for
[[Page 12718]]
purposes of determining the U.S.-content of technology. The report will
not require information regarding destinations and end-users for
reexport.
BXA has concluded after interagency consultations and review of all
the comments that the so-called amortization problem exists for
software and does not exist for commodities. Several commenters have
asked why.
Unlike parts incorporated into end products, the cost of U.S.
software code will be attributed or allocated to the future sales of
foreign-made software incorporating the U.S. code. In making this
calculation for foreign software, you must make an estimate of future
software sales of that software if it is commingled with or
incorporated with the U.S. code. Unless there is a one-time report
revealing the assumptions of such calculations, foreign firms may
misuse the de minimis rule and make unrealistic assumptions of large
future sales. Such a misuse can result in U.S.-content that is unfairly
estimated to be below the de minimis level.
BXA has concluded after interagency consultations and review of all
the comments that the so-call universe problem exists for technology
and not for commodities. Several commenters have asked why.
There is the risk that foreign firms will select excessively large
categories of foreign technology for division into the U.S.-origin
technology content. There is no regulatory criteria or standard that is
sufficient to describe the scope of foreign technology that must be
divided into the U.S. technology to determine the percentage of U.S.-
content. The possible choices of a universe by the reexporter are many
and varied.
Some commenters wanted BXA to select one U.S. transfer pricing
standard such as the standard of the Internal Revenue Service found in
section 482 of the Internal Revenue Code. One software producer
indicated that it will have very difficult decisions to make in the
calculation of U.S.-content for purposes of foreign-made software and
asked BXA how it would be done. In this interim rule, we indicate that
accepted accounting standards such as section 482, its implementing
rules, and related ruling provide one option the exporter or reexport
may follow. The Organization for Economic Cooperation and Development
(OECD) is considering uniform transfer pricing rules, and such
international standards would present an attractive option in the
future. However, it will likely be at least a year before they put such
OECD standards in place. Other commenters said that their firms do not
maintain adequate records to perform calculations of U.S.-content. Of
course, for such firms, any value-based de minimis rule will not
relieve existing burdens regardless of the report requirement.
For decades, all reexport controls under the EAR extended to
foreign software and technology incorporating any level of U.S.-
content. BXA refers to this as the commingled rule. In 1988, BXA
proposed giving some relief from the commingled rule with a type of
shifting of presumptions regarding country of origin after a period of
time. With one exception, commenters opposed that proposed rule and
urged a value-based de minimis exclusion. BXA addressed the issue in
its February 1994 proposed renewal of the Export Administration Act.
That proposal would have compelled a de minimis exclusion from the
commingled rule and reserved the authority of the Executive Branch to
require a one-time report.
BXA believes that it is appropriate to put reasonable limits on the
reach of U.S. reexport controls for foreign-made software and
technology. This is to recognize the sensitivities of other nations and
to put some outer limits on the obligations of foreign firms doing
business with U.S. firms. However, it is not the purpose of this
exercise to eliminate reexport controls on software and technology.
Reexport controls remain tools of the EAR to prevent diversion contrary
to vital national security, nonproliferation, and foreign policy
interests of the United States.
BXA understands that some foreign firms will benefit from the
relief offered in this interim rule and will use this relief by filing
the necessary report. For such firms, the de minimis rule and related
report is not a new licensing requirement. Rather, it is a means for
BXA to assure that the above described three criteria are not misused
in a given set of calculations and assumptions. The report is required
under a ``report and wait'' procedure. If the reporting firm does not
hear from BXA within thirty days, then the reporting firm may
thereafter rely upon its reported calculations, and its foreign
technology or software described in the filed report is not subject to
the EAR.
For those reexporters without the desire or ability to take
advantage of the de minimis rule, their position under the EAR remains
unchanged in any respect by this interim rule. The commingled rule
continues to apply as it has for decades. One commenter said that the
report requirement would make enforcement easier for BXA than under the
existing rule. BXA does not believe that to be true. The existing rule
is clear.
Reexporters should also be mindful that many authorities for
permissive reexports remain available to overcome reexport
prohibitions. The de minimis exclusion from the commingle rule
determines whether foreign technology or software is subject to the
EAR. If certain commingled foreign technology or software is subject to
the EAR, then the general prohibitions and License Exceptions define
the obligations of the holder of that technology and software.
This interim rule also makes several changes to Sec. 734.3, Items
Subject to the EAR. In the proposed rule, foreign made products subject
to the EAR were separately in Sec. 732.4. These provisions dealing with
foreign made products are now included in Sec. 734.3, together with
other items subject to the EAR. This interim rule consolidates all
related principles in one section.
A number of commenters questioned whether BXA intended to limit the
coverage of items subject to the EAR only to ``U.S.-origin'' items as
reflected in Sec. 732.2(a) of the proposed rule. This interim rule
clarifies the intent of the proposed rule and the BXA practice related
to this issue. Specifically, this interim rule has asserted
jurisdiction over all items subject to the EAR exported from the United
States, whether of U.S. or foreign origin, but in practice has limited
other controls, such as reexport controls, over EAR-controlled items to
those of U.S. origin. Section 734.3(a) of this interim rule reflects
these provisions. Section 734.3 also applies to all covered items in
the United States, and to all such items that are of U.S.-origin,
wherever located.
This interim rule also specifically states that foreign origin
items in-transit through the United States and in U.S. foreign trade
zones are subject to the EAR. For any special licensing treatment that
may be accorded such shipments on their export from the United States,
exporters should look at the License Exceptions in part 740.
This interim rule makes five changes to the proposed rule that are
reflected in the provisions of Sec. 734.3(b), which lists the
exclusions from items subject to the EAR.
1. In proposed Sec. 732.3(a)(1), BXA excluded items exclusively
controlled for export or reexport by other agencies which maintain
controls for national security or foreign policy purposes. The agencies
were identified in Supplement No. 2 to proposed part 732. To reduce
cross-referencing, the agencies are now listed in part 734, and the
Supplement has been removed.
2. This interim rule also adds a new provision that excludes from
the definition of ``items subject to the EAR''
[[Page 12719]]
items included in ECCN 0A98 in the existing EAR, such as films,
records, books, and periodicals. This provision was not included in the
proposed rule. Under the existing EAR, items included in that ECCN do
not require authorization to any destination. This interim rule has the
same result.
3. Section 732.2(a)(3) of the proposed rule excluded security-
classified technology and software from the coverage of items ``subject
to the EAR.'' This provision was based on the theory that classified
items are controlled by the Nuclear Regulatory Commission and the
Department of State's Office of Defense Trade Controls. One commenter
observed that because these agencies control the export of classified
items as part of their ``exclusive'' jurisdiction, no specific
provision needs to appear for classified items. To avoid confusion,
this interim rule omits the reference to classified items. The
provision is already implicitly included in part 734 because items
controlled exclusively for export by another agency are not subject to
the EAR (Sec. 734.3(b)(1)).
4. This interim rule also adopts the term ``publicly available
information'' to refer to all information included in General License
GTDA of the existing EAR. Such information is listed in
Sec. 734.3(b)(3). In the proposed rule, the term ``publicly available''
applied solely to information that was ``generally accessible to the
interested public in any form''. This interim rule adopts the term
``published information'' to represent such generally accessible
information.
5. A number of commenters objected to the use of the term ``Not on
List'' or ``NOL'' to designate and clear for export those items which
are subject to the EAR but which do not appear on the CCL. This interim
rule drops this term, which will be discussed in greater detail under
part 758, General Export Clearance Requirements. However, in response
to written comments and audience comments at the town-hall fora, BXA
will designate such items under ``EAR99.'' This designation, discussed
in Sec. 734.3(c) of this interim rule, will be used for classification
and reference purposes only, and will not be required for clearing
exports.
One commenter recommended that items subject to the EAR be
specifically limited to exports and reexports because BXA's statutory
authority relates to controlling exports and reexports. This interim
rule does not adopt this recommendation because the term ``subject to
the EAR'' defines the scope of EAR jurisdiction. The prohibition on
exports and reexports of such items based on BXA's statutory authority
is reflected in part 736, Prohibitions.
Finally, this interim rule expands Supplement No. 2 to include a
requirement for the submission of a report to be submitted to BXA if an
exporter uses the de minimis for technology or software.
Part 736--General Prohibitions
Part 736 includes ten general prohibitions. These are the
prohibitions that may apply to items subject to the scope of the EAR as
described in part 734, Scope. General Prohibitions One, Two, and Three
are product controls. The Commerce Control List in Supplement No. 1 to
part 774 and the Country Chart in Supplement No. 1 to part 738 are used
together to define the product scope and destinations for the license
requirements of General Prohibitions One, Two, and Three. General
Prohibitions Four through Ten describe certain activities that are not
permitted without authorization from BXA.
Several commenters recommended liberalization of the existing
reexport controls. For example, one commenter suggested a license free
zone for all members of the former Coordinating Committee on Export
Controls (COCOM), the Missile Technology Control Regime (MTCR), the
Nuclear Suppliers Group (NSG), and the Australia Group (AG). BXA notes
that a provision in the Export Administration Act of 1979 compels
individual validated licenses for items controlled cooperatively by
members of the MTCR. BXA is aware of the interest of the exporting
community in the further expansion of license free zones. However, this
interim rule is not intended to address such fundamental policy
decisions and is not an appropriate vehicle to make such changes.
Some commenters urged BXA to create a separate part for reexport
controls or a separate guideline for reexports. Others supported this
view and indicated that it was convenient for them to photocopy newly
designated part 774A and send this to firms abroad. BXA believes that
part 774A of the EAR does not describe all the duties of reexporters;
and reliance upon a reading of only that portion of the regulations
could well lead to violations of other portions of the EAR. In response
to these comments, BXA has taken care in this interim rule to indicate
which requirements of the EAR apply to reexporters and which
requirements do not. Part 732, Steps contains explicit indications of
applicability of various provisions to reexporters. As suggested by
several commenters, part 732, Steps has been substantially expanded to
present a road map for the use of these provisions by reexporters.
The foreign-produced direct product control described in General
Prohibition Three reflects a policy prompted by the Cold War. The
Regulations and Procedures Technical Advisory Committee (RPTAC)
recommended that BXA not revise this policy during the drafting period
that led to the proposed rule. After publication of this interim rule,
BXA will initiate a policy review of the foreign-produced direct
product rule.
All ten general prohibitions in this part 736 apply to firms abroad
under some circumstances. Part 734, Scope defines the scope of the
regulations for foreign as well as domestic firms. The key factors that
make all ten general prohibitions applicable to foreign firms are the
scope of the parts and components rule, the foreign-produced direct
product rule, and the general prohibition regarding reexports of U.S.-
origin items. These are described in detail in part 732, Steps; part
734, Scope; and part 736, General Prohibitions with specific references
to reexporters.
One commenter asked if we would add a provision regarding the
applicability of License Exceptions to General Prohibition Eight
concerning the unlading of goods in certain countries. The structure of
this prohibition is that it applies only to exports and reexports that
require a license. By definition, if you properly use a License
Exception authorized by the EAR, General Prohibition Eight does not
apply. Rather, it is a prohibition against unlading items that are
shipped under a license. Exporters and carriers should note that BXA
plans to conduct a policy review of the country scope of General
Prohibition Eight following the publication of this interim rule.
Several commenters stated that the proposed rule continued to
present a complex set of requirements, and many commenters suggested
fundamental decontrols and elimination of longstanding regulatory
requirements. Such recommendations would necessary entail changes to
the general prohibitions. However, the Regulation Reform exercise was
not intended to address such fundamental policy decisions, and this
interim rule is not an appropriate vehicle to make such changes.
Supplement No. 1 to part 736 on General Prohibitions provides for
certain General Orders. At this time, Supplement No. 1 is reserved.
Supplement No. 2 to part 736 provides
[[Page 12720]]
for three Administrative Orders. These Administrative Orders continue
polices of the existing regulations regarding the technical advisory
committees, business conduct before BXA, and certain confidentiality
provisions.
Part 738--Commerce Control List Overview and Country Chart
Part 738 provides an overview of the Commerce Control List (CCL)
and the Country Chart. The complete CCL is contained in Supplement No.
1 to part 774, while the Country Chart is contained in this part.
A significant change to the proposed rule as it relates to the CCL
is the modification of the numbering system used to identify Export
Control Classification Numbers (ECCNs) to conform with the European
Union (EU) numbering system as described in the supplementary
information regarding the CCL. This part provides an overview of the
new CCL structure and ECCN numbering system along with a thorough
discussion of the components that make up an ECCN.
This interim rule eliminates the use of the term ``License
Alternative'' and the ``Special Comprehensive License'' reference as
described in the proposed rule. In addition, this interim rule adopts
the revised reasons for control as identified in the proposed rule
(i.e., use of the broad term ``FP'' has been discontinued). New
``Related Definition'' and ``Related Controls'' sections contained in
the proposed rule have also been adopted in this interim rule.
Several commenters described use of the Country Chart column
identifier in the ``License Requirement'' section of each ECCN as a
rational model and fundamental to simplifying the task of determining
licensing requirements. This interim rule retains this very valuable
tool with few modifications.
The Country Chart, as described in the proposed rule, has been
modified to incorporate columns for destinations eligible for General
License GCT and GNSG under the existing EAR. General License GCT
eligibility is now determined by NS Column 2, while NP Column 1 now
reflects General License GNSG eligibility. NP Column 2 is retained in
its original format as reflected in the proposed rule. Accordingly,
references to License Exceptions CSR and NSG in the ``License
Exceptions'' section within each entry on the Commerce Control List do
not appear in this interim rule.
A few commenters noted that the proposed title to part 738,
Commerce Control List and Country Chart implies that the entire CCL is
contained in part 738. The title to this part has been modified to
state this part contains an overview of the CCL structure and its
relationship to the Country Chart, rather than the actual CCL.
Two commenters noted that the cross-reference to part 742, Control
Policy--CCL Based Controls should be clarified. This interim rule
contains a more descriptive cross-reference to part 742 and is placed
in a more appropriate location.
A few commenters expressed confusion over the use of UN Column 1.
This interim rule removes UN Column 1, because of its limited scope of
control and for added clarity. In addition, this interim rule revises
the two instances in which the Country Chart is not consulted to
determine license requirements. This interim rule expands the proposed
list of ECCNs in which the Country Chart cannot be used from 5A80D
(5A980) to include 1A988, 2A994, 2D994, 2E994, 2B985, 0A983, 0A986, and
0A988.
This interim rule does not adopt the request made by a few
commenters that the Country Chart be expanded to incorporate the
Country Group identification as described in part 740, License
Exceptions. These two lists were developed for separate purposes and
allow for systematic licensing determinations (e.g., Country Groups are
not reviewed unless a license is required by the Country Chart). In
addition, incorporation increases the possibility that readers will
make incorrect license determinations.
This interim rule expands the example for using the CCL and Country
Chart to illustrate more complex fact patterns, as requested by a
commenter.
Part 740--License Exceptions
Part 740 provides for exceptions from license requirements similar
to the General Licenses contained in the existing regulations. In
addition to License Exceptions for commodities, this part contains
License Exceptions for software and technology and permissive
reexports. Previously, both technical data and reexports had separate
parts. License Exceptions for short supply commodities appear in part
754.
Eligibility for License Exceptions may be based on the item to be
exported or reexported, the country of ultimate destination, the end-
use of the item, or the end-user. If a License Exception is available
for a particular transaction, the exporter or reexporter may proceed
with the export or reexport without a license. However, the exporter or
reexporter is required to meet all the terms of the License Exception;
in using a License Exception, the exporter or reexporter will be
certifying that all terms, conditions, and provisions for the use of
that License Exception have been met.
The most significant departure in this interim rule from the
proposed rule is the changed relationship between the determination of
the applicability of a License Exception to a particular transaction
and the documenting of that transaction for export clearance purposes.
Previously, each License Exception bore a three-character symbol that
transferred directly to shipping documents to certify that the
transaction did not require a license and that it met the terms and
condition of the stated License Exception. In this interim rule, each
three-character symbol that will be used on shipping documents
represents a group of License Exceptions rather than a single License
Exception. This change means that a few symbols will cover a large
percentage of shipments from the United States. Each symbol bears an
intuitive relationship to its group of License Exceptions; for example,
those based on the Commerce Control List bear the symbol ``LST.'' Some
commenters wished to retain the old General License symbols, but a
preponderance of exporters preferred intuitive symbols and expressed
that preference at the numerous town-hall fora held around the country.
Many commenters on the proposed rule protested that certain
existing General Licenses--specifically GLR and GTDU--had been
needlessly fragmented. In this interim rule, these License Exceptions
have been consolidated into Servicing and Replacement (RPL) and
Technology and Software--Unrestricted (TSU), respectively. General
Licenses GCT and GNSG in the existing EAR, which appeared as License
Exceptions CSR and NSG in the proposed rule, have in this interim rule
been incorporated into the Country Chart in part 738.
Changes made in General Licenses in the intervening period between
publication of the proposed rule and this interim rule, including G-
BETA for beta test software, G-CTP for computers, and a modification of
GCG (shipments to cooperating governments), are reflected in part 740.
The former Humanitarian License Procedure, which was included in the
Embargo part of the proposed rule, has become a License Exception for
humanitarian donations.
Part 742--Control Policy--CCL-Based Controls
If you have determined that a license application must be filed
after reviewing the Country Chart in part 738 and the Commerce Control
List (CCL) in part 774, this part 742 provides the licensing
[[Page 12721]]
policy that BXA will apply in reviewing your application. This part
contains licensing review policies for all items listed on the CCL
except items controlled for ``short supply'' reasons or to implement
``U.N. Sanctions.'' It consolidates most of newly designated part 785A,
Special Country Policies, portions of newly designated part 776A,
Special Commodity Policies and all the CCL-based controls described in
newly designated part 778A, Proliferation Controls. It also includes
control policies for items included on the CCL but not reflected in the
Country Chart. Specifically, these items are high performance
computers, implements of torture, and communications intercepting
devices.
Part 742 does not include controls and licensing polices that apply
to exports and reexports to embargoed destinations (currently, Cuba,
Libya, North Korea, Iraq, Iran, and the Bosnian-Serb controlled areas
of Bosnia-Herzegovina), except a description of anti-terrorism controls
applicable to Iran (Sec. 742.8) and other terrorist-designated
countries (Supplement No. 2 to part 742). Part 746, Embargoes and Other
Special Controls, covers the licensing policies for embargoed
destinations.
This part is structured to assist exporters to easily retrieve
licensing information related to the reason for control for each item
listed on the CCL. Each ``Reason for Control'' column on the Country
Chart in part 738 has a counterpart section in part 742. The sections
in this part appear consecutively in the same order as the columns on
the chart, reading from left to right. In addition, each section is
similarly structured:
--Paragraph (a) lists the licensing requirements as stated on the CCL;
--Paragraph (b) provides the licensing policy for specific controls on
the CCL;
--Paragraph (c) describes any contract sanctity dates that apply to
particular controls; and
--paragraph (d) provides information concerning any multilateral
cooperation that may apply to a particular control.
BXA believes that the structure and organization of this part is a
significant improvement over the existing EAR. It enables an exporter
to retrieve specific licensing information relevant to each ECCN on the
CCL without having to review extraneous material.
Changes were made in Sec. 742.1, Introduction, to accurately
describe the structure of this interim rule. Paragraph (c) was added to
make clear that controls on embargoed destinations, other than anti-
terrorism controls, are covered in part 746, Embargoes and Other
Special Controls and do not appear in this part 742. Paragraph (d)
generally describes anti-terrorism controls maintained by BXA.
Paragraph (e) reminds the reader that items not listed on the CCL are
nonetheless subject to the end-use and end-user provisions described in
part 744, Control Policy--End-user/End-use Based.
In addition, this interim rule contains changes that implement
regulations which were issued by BXA but were not reflected in the
proposed rule. The interim rule also reflects changes made in response
to public comments on the proposed rule.
On May 6, 1995, the President issued Executive Order 12959,
imposing a virtual embargo on exports of any goods, technology or
devices to Iran and on certain reexports of U.S.-origin goods or
technology. (The Treasury Department, Office of Foreign Assets Control
(OFAC), has principal responsibility for implementing E.O. 12959.)
Because of the virtual embargo on exports to Iran, provisions dealing
with Iran, except anti-terrorism controls, have been shifted to part
746, Embargoes and Other Special Controls. In this interim rule,
Sec. 742.8 describes anti-terrorism controls on exports and reexports
to Iran that BXA continues to maintain while the comprehensive embargo
administered by OFAC is in effect.
This interim rule also includes new anti-terrorism controls on
Sudan, described in Sec. 742.10 and in Supplement No. 2 to part 742.
The Department will also publish these controls in the format of newly
designated part 785A and related parts. The items controlled for anti-
terrorism reasons to Sudan include explosive device detectors, which
have been moved into a new ECCN. The anti-terrorism control on
explosive device detectors also applies to Syria and Iran.
Since the publication of the proposed rule, the Department has
issued a new regulation on exports of specially designed implements of
torture (60 FR 58512). This regulation moved specially designed
implements of torture from Export Commerce Control Number (ECCN) 0A82C
to a new ECCN, 0A83D, and required a license to all destinations,
including Canada. The changes made by that regulation are reflected in
the interim rule. Proposed Sec. 742.7 (Crime Control) is revised to
eliminate references to implements of torture, and a new Sec. 742.11
(Specially Designed Implements of Torture) is added to this interim
rule.
The President announced a revision of U.S. export controls on
computers on October 6, 1995 that affects the supercomputer controls
contained in part 742 (Sec. 742.12) of the proposed rule. The
Department published the revised regulations on January 25, 1996 (61 FR
2099). Section 742.12 has been retitled ``High performance computers''
in this interim rule and describes the license requirements and
licensing policies applicable to four ``tiers'' of countries.
Supplement No. 3 to part 742 describes licensing safeguard conditions
that may be imposed on exports of high performance computers to certain
destinations.
Twelve commenters included comments on part 742 in their
submissions. A number of commenters pointed out technical mistakes and
omissions in part 742. These are corrected in this interim rule.
Following is a discussion of other comments submitted.
Two commenters questioned the appropriateness of continuing
controls on exports to members of a given multilateral control regime
of items controlled by that regime. No License Exceptions are available
for items controlled for missile technology reasons because a provision
in the Export Administration Act requires individual validated licenses
to all destinations. Section 742.2(a)(2) of this interim rule states
that licenses are not required for exports of the listed chemicals to
Australia Group member countries. This interim rule revises
Sec. 742.3(a)(1) to inform the exporter that no license is required for
exports of certain nuclear proliferation controlled items to Nuclear
Suppliers Group (NSG) member countries. Finally, this interim rule
describes, in Sec. 742.4(a), a new national security control level,
denoted by ``NS Column 2'' in the Country Chart, which indicates that
no license is required for exports to Country Group A:1 and cooperating
countries.
One commenter noted that proposed Supplement No. 2, listing
countries that are party to the Treaty on the Nonproliferation of
Nuclear Weapons and to the Treaty for the Prohibition of Nuclear
Weapons in Latin America, required updating. Because the list of
countries party to these treaties is constantly changing, BXA decided
to remove this Supplement rather than risk publishing an inaccurate or
outdated list. BXA will maintain and make available to interested
persons a current list of the countries party to these treaties.
One commenter suggested that part 738, Commerce Control List
Overview; part 742, Control Policy--CCL Based
[[Page 12722]]
Controls; and part 774, The Commerce Control List be combined, since
they all concern the Commerce Control List. BXA did not adopt this
recommendation. Each of the three parts provides a view of controls
from a different vantage point: Part 738 by country; part 742 by type
of control; and part 774 by type of item. BXA believes that
consolidating the three parts into one would make the interim rule more
unwieldy and difficult to use.
Two commenters recommended that contract sanctity provisions be
established for nuclear nonproliferation, national security, regional
stability, crime control or computer controls. BXA did not establish
contract sanctity in this interim rule. Decisions on contract sanctity
dates are made when new controls are imposed. This interim rule does
not impose any new controls. Accordingly, no changes have been made in
contract sanctity provisions.
Two commenters stated that Sec. 742.2(d) (chemical and biological
weapons), Sec. 742.4(d) (national security) and Sec. 742.5(d) (missile
technology) incorrectly state that U.S. controls are consistent with
multilateral agreements. BXA does not agree with this comment. The only
change that BXA is making in this interim rule is to reserve
Sec. 742.4(d). On December 19, 1995, the United States and twenty-seven
other countries, including its NATO allies and Russia, agreed to
establish a new multilateral export control arrangement. The Wassenaar
Arrangement for Export Controls for Conventional Arms and Dual-use
Goods and Technologies (``Wassenaar Arrangement'') is expected to be
operational later in 1996. Any EAR changes that may be needed to carry
out the Wassenaar Arrangement will be made at the appropriate time.
A commenter suggested that License Exception NSG be extended to
South Korea, Taiwan and Mexico. License Exception NSG has been removed
in this interim rule. Instead, items on the CCL with ``NP Column 1'' in
the Country Chart column of the ``License Requirements'' section of an
ECCN do not require a license to NSG member countries. The commenter's
suggestion has not been adopted by BXA for Taiwan and Mexico because
the regulations simplification initiative was not intended to make
substantive changes in license requirements. However, recent regulatory
changes have extended such treatment to South Korea, and that change is
incorporated into this interim rule.
One commenter questioned why ECCN 5A80 (communications intercepting
devices) of the proposed rule is not included in Sec. 742.7 (Crime
Control). These items are regulated under separate statutory authority
and licensing criteria. Items controlled under Sec. 742.7 are those
agreed to pursuant to section 6(n) of the Export Administration Act.
Controls on communications intercepting devices are maintained in
accordance with the Omnibus Crime Controls and Safe Streets Act of
1968, and are therefore separately controlled under Sec. 742.13.
Part 744--Control Policy--End-User/End-Use Based
This part contains prohibitions against exports, reexports, and
activities related to certain end-uses and end-users. Specifically,
Sec. 744.2 prohibits exports and reexports of items subject to the EAR,
without a license, if at the time of the export or reexport you know
that the item will be used in nuclear explosive, or other safeguarded
or unsafeguarded nuclear activities. Section 744.3 prohibits the export
or reexport, without a license, of certain items to be used for missile
end-uses. Similarly, Sec. 744.4 prohibits the export or reexport of
items with certain chemical and biological weapon end-uses. Next,
Sec. 744.5 prohibits the export or reexport of items to be used for
specified nuclear maritime end-uses.
Section 744.6 places restrictions on certain proliferation-related
activities of U.S. persons. For purposes of this prohibition the term
``U.S. person'' means citizens, permanent resident aliens, or protected
individuals as defined in the immigration laws; any juridical person
organized under the laws of the United States or any U.S. jurisdiction;
and any person physically in the United States. This part also contains
prohibitions against exports, reexports, and certain transfers to
specified end-users. Section 744.7 imposes restrictions on certain
exports to and for the use of certain foreign vessels or aircraft, and
Sec. 744.8 places restrictions on certain exports to all countries for
Libyan aircraft.
Commenters urged BXA to publish a positive list of items and limit
the applicability of the nonproliferation related end-use restrictions
to items on such a positive list. In addition, commenters asked BXA to
publish certain names of end-users as to which individual exporters
have been ``informed'' that a license is required by reason of
Sec. 744.2(b), Sec. 744.3(b), Sec. 744.4(b), and Sec. 744.6(b). BXA is
working within the Administration toward these objectives; however,
these are major policy initiatives, they are not part of this interim
rule, and they are not necessary to achieve the goals of the
Regulations Reform exercise.
Commenters suggested that under Sec. 744.2(b) the discretion of BXA
to inform an exporter of the trustworthiness of certain end users
should be a duty of BXA rather than an option of BXA. The U.S.
Government will retain this discretion because of the overriding
interests in protecting sources and methods of intelligence gathering
and the interests in law enforcement objectives that on occasion
require flexibility on the part of the government.
One commenter urged BXA to make clearer the treatment of technology
that historically was authorized for export under General License GTDA.
In the proposed rule, BXA excluded such information from the scope of
the EAR. That approach is retained in this interim rule and clarified
in the steps that have been added to part 732, Steps to suggest methods
for using part 734, Scope of the EAR. Items not subject to the scope of
the EAR are not subject to any prohibition of the EAR.
Section 744.2(b) contains provisions designed to standardize the
procedure for informing exporters that a particular party may present
an unacceptable risk of diversion contrary to nuclear policies. Some
commenters applauded this addition, and one opposed it. BXA will
maintain this provision because the procedural discipline it provides
should prove useful for both BXA and exporters. This provision does not
change BXA's substantive authorities under the EAR.
One commenter suggested additional cross-references to the license
review policies for items subject to, for example, missile technology
controls identified on the CCL based upon product parameters rather
than a prohibited end-use. In the proposed rule and in this interim
rule, the license review standard for applications required by reason
of the product parameters designated on the CCL are listed in part 742,
Control Policy--CCL Based Controls. The license review standards for
license requirements defined by end-uses described in part 744 are
contained in part 744. Because of the criticism of some commenters that
the proposed rule contained too many cross-references, BXA has
concluded in this instance that additional cross-references are not
advisable.
This interim rule continues existing policy regarding the country
scope of the nuclear end-use prohibition. A new Supplement No. 3 is
added to the part and referenced at Sec. 744.2(a) to exempt designated
countries from this prohibition, and those are the same countries that
are exempt under the
[[Page 12723]]
existing EAR. This is a change from the proposed rule.
One commenter suggested that BXA remove from Sec. 744.6 words that
indicate defined activities are prohibited in the United States. This
interim rule accepts this recommendation. One commenter complained that
Sec. 744.6 applies to less than all countries in Country Group D:1. The
exclusion of Romania and China is consistent with current policy, and
is maintained in this interim rule. BXA recognizes that such policy
decisions make the use of the Country Groups and the EAR itself more
complex. BXA hopes reviewing of provisions of the EAR in the order
recommended by the steps in part 732 will minimize this problem. BXA
intends to further address such issues in the future. However, policy
making in export controls will always present trade offs for exporters
when petitioning the government for fairness and precision of export
control policy on the one hand versus simplicity and ease of
administration for the public on the other.
The proposed Sec. 744.6(a)(2) prohibited certain U.S. person
activities related to nuclear explosives devices. It was removed from
this interim rule because such activity is prohibited under the
International Traffic in Arms Regulations (22 CFR 120-130), which
regulate defense services for all destinations.
Part 746--Embargoes and Other Special Controls
Part 746 of the proposed rule contained controls for Cuba, Libya,
Iraq, North Korea, and the Federal Republic of Yugoslavia (Serbia and
Montenegro), indicating where jurisdiction was divided between BXA and
the Department of the Treasury's Office of Foreign Assets Control. It
also contained controls implementing U.N. sanctions resulting in
additional EAR controls on Rwanda.
Controls on Iran, embargoed because of Executive Order 12959 of May
6, 1995, have been added to part 746 in this interim rule. With the
suspension of the embargo on the Federal Republic of Yugoslavia (Serbia
and Montenegro), controls on that country, as well as on certain areas
of Croatia and Bosnia-Herzgovina, have been shifted to a Supplement to
part 746. Commenters pointed out that ECCN 0A95, which released food
and medical supplies to Libya from reexport control, was unaccounted
for in the proposed rule; that oversight has been corrected. The former
Humanitarian License Procedure, which was included in the Embargo part
of the proposed rule, has become a License Exception for humanitarian
donations and is in part 740 of this interim rule.
Finally, this part includes Supplements containing general
information on embargoes and sanctions administered by other federal
agencies.
Part 748--Applications (Classification, Advisory, and License) and
Documentation
Part 748 describes the procedures for submitting license
applications, classification requests and advisory opinions. This
interim rule places information from throughout the existing EAR into
one part. It is intended to provide the reader with all information
necessary to submit an application to BXA.
This interim rule adopts use of the new Form BXA-748P for the
submission of license applications and classification requests, but not
advisory opinions. Most commenters favored the use of one form for both
exports and reexports. This interim rule clarifies the definition of
advisory opinions and states they must be submitted in writing via
letter. Commenters were evenly split regarding the proposal to require
use of Form BXA-748P for advisory opinions. One commenter proposed
adopting the form for use when submitting end-user requests. This
suggestion along with one recommending the elimination of unit and
total price boxes are not adopted in this interim rule. A number of
commenters also queried whether BXA intends to republish the Forms
Supplement contained in the existing loose leaf EAR subscription. BXA
will republish the Forms Supplement in the subscription to the EAR
offered by the National Technical Information Service (NTIS). The Forms
Supplement is not published in the Code of Federal Regulations.
Sections in part 748 have been redesignated to better describe each
section's contents. The addresses in Sec. 748.2 and Sec. 748.14 have
been placed in one section. Procedures for submitting applications
electronically have been placed in a separate section for easier
access. For continuity, the unique license requirements for specific
items or transactions have been placed in a separate Supplement No. 2
to this part. This change will allow readers to determine quickly
whether the unique requirements apply to their transaction, and if not,
to continue quickly with sections relating to support documents.
Instructions for completing Form BXA-748P contained in Supplement No. 1
to part 748 have been clarified in response to comments posed by both
the public and BXA employees.
On the suggestion of one commenter, a reminder that information
submitted under the Export Administration Act will be treated in
accordance with provisions stated in section 12(c) of the act has been
added in this interim rule in Sec. 748.1(c).
The section on license application support documents has been
revised to eliminate one step in the decision tree. The questions
contained in Sec. 748.10(a)(3) in the proposed rule have been combined
into one question in this interim rule. Some commenters noted that
exceptions for obtaining support documents have decreased in certain
circumstances. The changes announced in the proposed rule were due
largely to the changing export control environment and proliferation
credentials of various countries. Accordingly, this interim rule adopts
the requirements contained in the proposed rule with a few
modifications. This interim rule also adopts the two year validity
period for the Statement by Ultimate Consignee and Purchaser.
A few commenters noted that though the development of decision
trees will assist in determining support document requirements, BXA
should consider the development of a matrix or chart similar to that
contained in part 775 of the existing rule. Though a chart has not been
included in this interim rule, BXA will explore development of a new
matrix/chart based on the support document decision tress in this part.
This interim rule also eliminates the last letter in the Export Control
Classification Number contained in the existing rule. This letter had
been used previously to designate support document requirements, but is
no longer necessary.
A few commenters requested additional guidance on what constitutes
an emergency and clarification of validity periods as they relate to
licenses approved under emergency processing. This interim rule
clarifies the validity period by cross-referencing the appropriate
section in part 750, but does not provide additional language to be
used by applicants when submitting emergency requests. In order to
retain the emergency nature of these requests, this interim rule does
not adopt the suggestion by one commenter to increase the validity
period from 30 to 60 days for applications involving reexports.
Commenters were evenly split regarding the elimination of Form BXA-
685P for amendments with a few stating the elimination of this form is
long overdue. This interim rule adopts the intent to eliminate Form
BXA-685P along with Form BXA-648. Changes not
[[Page 12724]]
listed in Sec. 750.7(c) will require the submission of a Replacement
application. One commenter stated the time period for the return of
Delivery Verifications to BXA was reduced with elimination of Form BXA-
648. The existing rule states the time frame as ``a reasonable time
after the last shipment'' while the instructions contained in the
existing Form BXA-648 stated the time frame as ``90 days after the last
shipment''. This interim rule eliminates this inconsistency by
establishing a 90 day time frame.
Form BXA-711 along with its written counterpart is adopted in this
interim rule. Commenters stated the ability to use a form or letter was
a good idea.
Part 750--Application Processing, Issuance and Denial
Part 750 describes the processing procedures and time frames for
classification requests, advisory opinion requests and license
applications. Once an applicant has prepared documents in accordance
with part 748, this part describes how the application will be handled
by BXA. The time frames detailed in this interim rule are drawn from
Executive Order No. 12981 of December 6, 1995 and the draft 1994 Export
Administration Act bill written by the Clinton Administration.
This interim rule provides a detailed description of the
relationship between all agencies and departments involved in the
license review process as well as a description of the interagency
dispute resolution process. This part also addresses actual issuance,
validity periods, denial, revocations, suspensions, transfers,
duplicates, and shipping tolerances.
This interim rule also eliminates the proposed exceptions to the
license processing time frames and limits all license applications to a
90 day processing time frame. A number of commenters made
recommendations for revising the time frames for the processing of
license applications as well as the types of applications subject to
Congressional notification. This interim rule incorporates the
processing time frames provided in Executive Order No. 12981.
Accordingly, recommendations to establish different time frames have
not been adopted. In addition, congressional notification requirements
for crude oil and refined petroleum products have not been adopted
since they no longer apply to the types of licenses reviewed by the
Department.
Most commenters supported the clarification of the license
processing system and time frames. These commenters agreed that BXA has
met the goal of making the process more transparent for the exporter.
A number of commenters requested that applicants be given the
opportunity to express their views during the license escalation
process. These commenters also requested clarification of the term
``registration'' to include language that would require prompt action
by BXA upon receipt of a license application. Both of these
recommendations have been adopted in this interim rule.
One commenter suggested that part 756, Appeals, be combined with
this part 750 since most appeals involve license applications. This
recommendation was not adopted because the appeals process is open to
all administrative actions, not only those relating to license
applications.
One commenter recommended simplification in the provisions for
shipping tolerances. While this recommendation has merit and may be
considered at a later date, it was not adopted in this interim rule.
Part 752--Special Comprehensive License
Part 752 describes the provisions of the Special Comprehensive
License (SCL). The SCL consolidates the activities authorized under the
Project, Distribution, Service Supply, Service Facilities, Aircraft and
Vessel Repair Station Procedure, and Special Chemical Licenses, and
provides for additional flexibility to BXA in shaping appropriate SCLs
and internal control programs (ICPs). For example, the Project License
and Service Supply Procedure authorize exports and reexports to
countries of the former Soviet Union, Eastern Europe, and the People's
Republic of China, but the Distribution License, which includes an
extensive mandatory ICP that is not required for the Project License or
the Service Supply Procedure, does not allow exports and reexports for
distribution in these countries. This interim rule conforms item and
country eligibility under the SCL. All items subject to the EAR are
also eligible for export and reexport under the SCL, except a few
specified items. Form BXA-686P, Statement by Foreign Importer of
Aircraft or Vessel Repair Parts, which was used for certain exports
under the Aircraft and Vessel Repair Station Procedure, and Form BXA-
6026P, Service Supply License Statement by U.S. Exporter, are not used
under the SCL.
BXA received fourteen comments on part 752. Overall, several
commenters stated that the SCL is a significant improvement over the
existing special license eligibility because it provides broader
authority to allow exports of items such as software and technology.
Five commenters suggested that existing special license holders
retain the right to use existing special licenses until they expire,
but apply for amendments to take advantage of the increased item and
country scope of the SCL.
This interim rule makes the SCL effective March 25, 1996. All
existing special licenses will expire on March 25, 1997, unless the
special license expires before that time by its own terms. BXA will not
grant extensions to existing special licenses. Existing special license
holders who want to take advantage of the SCL benefits, must apply for
an SCL according to part 752. BXA will not accept amendments to
outstanding special licenses.
Eight commenters provided comments on item scope for the SCL. Most
commenters stated that the proposed rule would not authorize exports
under the SCL of items eligible for a License Exception. The proposed
rule allowed exports under the SCL of all items subject to the EAR,
including items eligible for a License Exception. However, to prevent
confusion, the interim rule specifically states in Sec. 752.1 that you
may apply for an SCL, when appropriate, in lieu of a license described
in part 748 or a License Exception described in part 740.
Two commenters stated that the SCL should not exclude any items
because it defeats the purpose of the SCL, which is designed to allow
greater flexibility in return for increased monitoring of each shipment
by the SCL holder and consignees. One commenter added that other
agencies have the right to review the applications for an SCL, and
restrictions may be placed on a license on a case-by-case basis.
However, two commenters stated that there should be no ad-hoc
restrictions, adding that the only item restrictions should be those
published in the Federal Register, which would be applicable to all
companies.
This interim rule retains the list of items not eligible for the
SCL in Sec. 752.3 to ensure that potential applicants are aware of the
few item restrictions before they consider applying for an SCL. If BXA
determines that an item must be added to the list to protect national
security, nonproliferation, or foreign policy interests, or determines
that an item need no longer be prohibited under the SCL, BXA will
publish a change in the Federal Register, at which time the change will
become effective and apply to all SCL and potential SCL holders.
Another commenter was concerned about the general policy of denial
for
[[Page 12725]]
exports to destinations in Country Group D:2 of items controlled for
nuclear nonproliferation reasons, and suggested that the SCL
specifically state that items controlled for nuclear nonproliferation
reasons be authorized on a case-by-case basis provided that the
exporter has appropriate controls in place to screen for proscribed
end-uses or end-users. The Internal Control Procedures (ICPs) required
for most activities authorized under the SCL include screening elements
for proliferation end-uses. This interim rule revises the policy of
denial language found in Sec. 752.3(b) of the proposed rule to a policy
of case-by-case review. In addition, this rule retains the discretion
to deny or limit the export or reexport of all items, including those
controlled for nonproliferation reasons.
Most commenters applauded the expansion of country scope to include
the newly independent states and Russia. However, several commenters
requested clarification that the SCL is eligible for countries such as
Slovenia, Rwanda, Bosnia, and Croatia, which are eligible under
existing special licenses . One commenter stated that when BXA declares
a country ineligible to receive items under the SCL, BXA should
simultaneously list the country in the EAR, and remove it from all
SCLs.
It is not BXA's intent to roll-back special license country
eligibility. This interim rule therefore clarifies that all countries
are eligible to receive items under the SCL except Cuba, Iran, Iraq,
Libya, North Korea, Syria, and Sudan. If BXA determines that additional
countries should become ineligible to receive items under the SCL, it
will publish the change in the Federal Register, and notify all SCL
holders.
Four commenters suggested consolidating Sec. 752.2 into one generic
paragraph that describes the representative activities. Another
commenter stated that the SCL should not prohibit the export of service
parts or upgrades as long as it does not exceed the limits of the SCL
parameters. Section 752.2 is intended to provide illustrative examples
of the types of activities that may be approved under the SCL. It is
not intended to be an inclusive list, and other activities may be
approved on a case-by-case basis. This interim rule revises Sec. 752.2
to provide a general description of the types of activities that BXA
may approve the under the SCL. These activities fall under the general
categories of ``service'', ``end-user'', ``distribution'', and
``other'' activities.
Four commenters provided comments on the requirement for a letter
of assurance for exports under the SCL of certain technology. One
commenter stated that the SCL expands the scope of the existing letter
of assurance required for exports under General License GTDR because it
would require the letter of assurance from each new recipient overseas.
One commenter specifically requested that the letter of assurance be
required from only one party overseas. The proposed rule did not expand
current policy. Under the existing EAR, any transfers of technical data
covered by a letter of assurance would require such assurances from any
new recipient of the technology. Two commenters indicated that
assurances are not required for exports of technology under a validated
license. But, if an assurance must be required, the assurance should be
included in the SCL certifications.
This interim rule removes the letter of assurance requirement from
Sec. 752.5. BXA intends to review requests to export controlled
software and technology under the SCL on a case-by-case basis, and
impose conditions or restrictions as appropriate. Depending upon the
level of software or technology requested for export under the SCL,
this may include restrictions on reexport of software or technology, or
exports of direct products of the technology.
Comments on Sec. 752.5, steps you must follow to apply for an SCL,
focused on the comprehensive narrative statement. Many commenters
stated that much of the information required in the comprehensive
narrative statement is already required on Form BXA-748P, Multipurpose
Application, or Form BXA-752, Statement by Consignee in Support of
Special Comprehensive License. Five commenters specifically requested
that the requirement to state the ratio and dollar volumes of
controlled items to those not subject to the EAR be removed, because it
is impractical to calculate and fundamentally unreliable. BXA agrees
that SCL applicants should not be required to repeat information in a
comprehensive narrative statement that is also required on Form BXA-
748P or Form BXA-752. Therefore, this interim rule includes major
revisions to the comprehensive narrative statement requirements,
limiting that statement to the information that is not required
elsewhere. This interim rule also removes the requirement to list the
items eligible for a License Exception that will be exported under the
SCL because the ICP requirements assure that appropriate controls are
in place to prevent diversion.
One commenter stated that the application stage was too early to
provide BXA a copy of the proposed ICP, and to do so conflicts with the
certification requirements that an ICP must be in place upon approval
of the SCL. This interim rule retains, under Sec. 752.5(c)(3), the
requirement that applicants and consignees submit ICPs at the time of
application. This information is necessary for BXA to determine whether
to approve the items, activities, or countries requested on the SCL
application, or to modify your proposed ICP depending upon the nature
of the request.
One commenter stated that BXA should not require an SCL holder to
inform all consignees of license conditions. Certain conditions may
only have relevance to one or two consignees. BXA agrees, and has
clarified in Sec. 752.9(a)(4) to state that the SCL holder must inform
all relevant consignees of all license conditions prior to making any
shipments under the SCL. Four commenters objected to the language that
refers to prior reporting of exports of certain items, which is was
included in Sec. 752.9(a)(4). This interim rule retains this language.
Exporters should note that the list of the special conditions that may
be placed on your SCL included in this section only provides examples,
and such conditions may not be included on your SCL.
Section 752.11 describes the elements of the Internal Control
Programs (ICPs) that the SCL holder and consignee must implement upon
approval of the SCL to assure that exports and reexports are not made
contrary to the EAR. Two commenters stated that the ICP requirements
included in the proposed rule should be clear and defined, not
generalized. Three commenters suggested that EPCI screening be limited
to certain countries. Two commenters requested that BXA clarify when
the parties to the application must submit the ICP to BXA. One
commenter also requested that upon publication of the SCL, BXA publish
guidelines that further define ICP requirements.
This interim rule also restructures Sec. 752.11 to consolidate the
elements of all three ICPs into one list, and to remove the different
levels of ICPs. This simplifies the text, and makes it more user-
friendly. This interim rule does not place country limits on screens
against customers who are known to have, or suspected of having,
unauthorized dealings with specially designated regions and countries
for which nonproliferation controls apply. Any such limits must be
approved by BXA, and are dependent upon the specific nature of your SCL
request. This interim rule also includes information in
Sec. 752.11(a)(2) on where you may obtain
[[Page 12726]]
guidelines to assist you in developing an adequate ICP.
This interim rule also makes several other editorial changes to
part 752 to consolidate provisions and simplify the text. Section
752.10, Changes to the SCL, has been revised to clearly define the
requirements for changing an SCL. Detailed instructions on how to
complete Forms BXA-748P, Multipurpose Application, and Form BXA-752,
Statement by Consignee in Support of Special Comprehensive License, and
other forms related to applying for an SCL are included in supplements
to part 752. The servicing provision in Sec. 752.4(b) has been revised
to conform with the standard used throughout the EAR. This provision
prohibits you from servicing, under the SCL, any item when you know
that the item is owned or controlled by, or under the lease or charter
of, entities in countries not eligible for the SCL, or any nationals of
such countries. Finally, the recordkeeping provisions of Sec. 752.12
have been clarified by providing the appropriate cross-references to
part 762, which applies to all transactions subject to the EAR.
Part 754--Short Supply
This part implements section 7 of the EAA and similar provisions in
other laws that authorize or require restrictions on exports for
reasons dealing with adequacy of supply of commodities in the United
States, as opposed to reasons based on foreign policy, national
security, or nonproliferation considerations. Specifically, this part
implements controls on exports of crude oil restricted under the EAA
and a number of other laws; on exports of petroleum products produced
or derived from the Naval Petroleum Reserves; on exports of western red
cedar as required by provisions in the EAA; and on exports of horses by
sea for the purpose of slaughter. It also provides information relating
to two provisions contained in EAA section 7: The registration of
agricultural commodities for exemption from short supply controls, and
the filing of petitions for the imposition of controls on recyclable
metallic materials.
Consistent with the revised structure of the proposed and interim
rules, this part contains all of the requirements that apply uniquely
to commodities controlled for short supply reasons. It sets forth all
of the licensing requirements, licensing policy, License Exceptions,
and other unique requirements that apply to commodities controlled for
short supply reasons on the CCL. Short supply controlled commodities
are identified with ``SS'' under ``Reason for Control'' in each
relevant ECCN on the CCL. Other requirements of the EAR that are not
unique to short supply controls, such as recordkeeping in part 762,
also apply to items covered by this part.
Six commenters provided comments on this part. A number of
revisions have been made to implement the recommendations contained in
the comments. Additional revisions were made to incorporate the heavy
California crude oil rule published in the Federal Register but not
included in the proposed rule.
Commenters recommended that the definition of ``crude oil'' in
Sec. 754.2 be moved to the front of this section from paragraph (g).
The definition of ``crude oil'' is now included in paragraph (a).
Section 754.2(b) deals with licensing policy for crude oil. It has
been revised significantly to distinguish BXA's licensing policy for
shipments of crude oil which have already been found to be in the
national interest, by Presidential decision or otherwise, e.g., crude
oil from Cook Inlet or California heavy crude, and those which will be
approved if BXA makes the necessary findings on a case-by-case review
of applications. In the proposed rule all crude oil applications would
be reviewed by BXA and approved if the crude oil was not subject to
certain statutory restrictions and BXA made a finding that the export
was in the national interest and consistent with the purposes of the
Energy Policy and Conservation Act. In this interim rule, paragraph
(b)(1) of Sec. 754.2 lists the exports that have already been found to
be in the national interest and paragraph (b)(2) lists the exports for
which BXA must make the necessary findings.
Section 754.2(b)(2) also reflects a revision relating to the kinds
of transactions that BXA will find to be in the national interest. The
proposed rule had cited examples of crude-for-crude and crude-for-
product exchanges that would be found to be in the national interest.
The language of the proposed rule, however, could have been interpreted
as limiting the national interest to these examples. The interim rule
makes clear that the cited exchanges are only examples.
This interim rule also adds a new paragraph (g) to Sec. 754.2,
reflecting regulations that were published in the Federal Register (60
FR 15669, March 27, 1995).
Finally, this interim rule creates two new License Exceptions which
apply to the exports of crude oil. Section 754.2(h) implements a new
License Exception SS-SPR, intended to permit the export of foreign
origin oil stored for emergency use by a foreign government in the
Strategic Petroleum Reserves (SPR). License Exception SS-SPR permits
the export even if the foreign origin oil is commingled with other SPR
oil, provided that the Department of Energy certifies that the crude
oil being exported is of the same quantity and of comparable quality as
the foreign origin oil imported by the foreign government for storage
in the SPR.
Section 754.2(i) of this interim rule creates a new License
Exception, SS-SAMPLE, to permit limited quantities of crude oil for
analytical or testing purposes. This revision implements
recommendations included in the public comments. Under this License
Exception you may ship up to ten barrels of crude oil to any one end-
user annually, up to a cumulative limit of 100 barrels per exporter
annually. This License Exception codifies a BXA licensing policy for
sample shipments that has been in effect for several years. This
licensing policy has been included in BXA's annual report to the
Congress, but has not been reflected in the EAR. Such de minimis sample
shipments have no measurable effect on U.S. oil supplies.
Section 754.3 of this interim rule reflects a significant change in
the way that the Naval Petroleum Reserves Production Act (NPRPA)
restriction on non-crude oil products are implemented. The NPRPA
prohibits the export of petroleum origination or derived from the Naval
Petroleum Reserve (NPR), unless the President approves the export.
Under existing EAR, licenses are required for all petroleum products,
and General License G-NNR authorizes shipments of all such product of
non-NPR origin or derivation. The proposed rule continued this approach
and provided License Exception SS-NPR.
Commenters noted that if all NPR crude oil produced in fiscal year
1994 were refined, it would amount to less than one percent of all the
crude oil refined in the United States. The commenters recommended that
the existing approach be changed to require a license only for
petroleum products which were NPR produced or derived. BXA adopted this
recommendation and this provision reflects the change.
The relevant ECCNs on the CCL have been revised to apply only to
petroleum products that were produced or derived from the NPR or became
available for export as a result of an exchange of any NPR produced or
derived commodities. With this change, General License SS-NNR is no
longer necessary and is removed.
[[Page 12727]]
Section 754.4, unprocessed western red cedar, has been reorganized
consistent with a recommendation included in the comments. In the
proposed rule, Sec. 754.4(a)(2) contained instructions for filing a
license application, and preceded provisions on license policy and
exceptions. A commenter noted that an exporter will first look for
licensing policy and license exceptions before looking for information
on how to fill out a license application. The commenter observed that
there is no point in instructing the exporter how to complete a license
application if subsequent text informs the exporter either that a
license will not be approved or is not necessary. This interim rule
adopts this comment and has restructured Sec. 754.4 accordingly.
Part 756--Appeals
This part describes the procedures applicable to appeals from
administrative actions taken by BXA. An administrative action is any
action (not including an administrative enforcement proceeding) taken
under the EAA or EAR with respect to a particular person, including
denial of a license application, return of a license application for
other than procedural deficiencies or additional information, or
classification of an appellant's item. Essentially, any person directly
and adversely affected by an administrative action would be allowed to
appeal to the Under Secretary for Export Administration for
reconsideration of that administrative action.
No substantial comments were received on this part 756. One
commenter suggested the possibility of combining this part with part
748, Applications. This interim rule does not adopt the suggestion.
With the exception of minor editorial revisions and clarifications,
the provisions of part 756 remain unchanged from the proposed rule.
Part 758--General Export Clearance Requirements
This part deals with requirements imposed on exporters and others
regarding the movement of items subject of the Export Administration
Regulations (EAR) out of the United States. The purpose of this part is
to assure that the movement of items subject to these EAR conforms to
the requirements of the export license or other authorization for their
export.
This part imposes specific responsibilities on the different
persons involved in export transactions to ensure compliance with other
provisions of the EAR and of the Foreign Trade Statistics Regulations
(FTSR) (15 CFR Part 30), including exporters, freight forwarders,
exporters' agents, carriers and all other persons. It prohibits any
person from engaging in certain proscribed conduct. This part governs
some of the same conduct that is governed by the FTSR.
This part imposes specific responsibilities for assuring that
Shipper's Export Declarations (SEDs), bills of lading and air waybills
are accurately filled out and are consistent with the export license or
other authorization for the export to which they correspond. It
restricts the conduct of exporters, forwarders, carriers and others to
assure that the delivery abroad of items subject to the EAR is in
accordance with the terms of the export license, exception to the
licensing requirement or other authorization. In some cases, it imposes
duties on parties to the transaction to return the items to the United
States or take steps to prevent them from entering the commerce of a
foreign country.
The proposed rule made several changes to this part. Approximately
25 commenters made comments on the proposed part 758.
A majority of those who commented on part 758 recommended that we
eliminate the requirement to place the symbol ``NOL'' on Shippers
Export Declarations (SEDs) for transactions involving items not on the
CCL. Most of those commenters suggested that we adopt a single symbol
``NLR'' for all transactions where the export does not require a
license either because it is on the CCL but does not require a license
to the destination in question or because it is not on the CCL. Several
commenters went further and recommended that we authorize the use of
the symbol ``NLR'' for transactions that are authorized by a License
Exception instead of requiring that the License Exception symbol be
listed on the SED. We adopted the suggestion to eliminate the symbol
``NOL''. However, this interim rule includes a designator (EAR99) for
items that in the proposed rule were subject to the EAR but not on the
CCL, that will be used by BXA in responding to classification requests
and by exporters for their management systems. The designator will not
be used on SEDs. We have also reduced the number of License Exception
symbols from which parties filling out SEDs must choose. As noted above
in the discussion of License Exceptions, we have created a small number
of symbols for various groups of License Exceptions, and it is these
symbols for groups of License Exceptions that must appear on the SED.
Several commenters suggested that the choice of Destination Control
Statements (DCSs) in the proposed rule was unduly complex. In addition,
some commenters suggested that the proposed rule on DCSs did not make
it clear that the most restrictive DCS could be used for any
transaction. This interim rule adopts a single simplified DCS.
A number of commenters raised the issue of what information should
be shown on SEDs for items which in the proposed rule were not subject
to the EAR, but which in the existing EAR are eligible for general
license GTDA. In response to these comments this interim rule creates
an optional designator TSPA which exporters may use on SEDs for
software or technology that the proposed rule and this interim rule
define as outside the scope of the EAR.
The proposed rule eliminated some information about authority and
status of forwarding agents and procedures for correcting SEDs on the
grounds that those points are covered in the FTSR (15 CFR part 30) and
including them in the EAR was redundant of the FTSR. Some trade
associations recommended that we retain these procedures. We did not
adopt this suggestion because the FTSR applies to all exports from the
United States including those subject to the EAR and those that are
not. These procedures need to be in the FTSR because exporters who have
no transactions subject to the EAR must follow them. Retaining
duplicate language in a regulation that applies to only a portion of
the exports from the United States would be redundant and creates the
burden of keeping two different sets of regulations identical whenever
amendments are adopted.
Two commenters suggested that proposed Sec. 758.1 was too long and
portions were redundant. They suggested breaking it up into several
sections. We did not adopt this suggestion in this interim rule. The
section has been shortened because of the elimination of the NOL
provisions.
Several commenters suggested that the use of the word ``you'' in
the proposed rule under Sec. 758.1(a)(1) shifted responsibility from
exporters to forwarders. This interim rule does not change that
language. The proposed rule, by its terms makes those who obtain
licenses from BXA or rely on License Exceptions in their export
transactions responsible for the proper use of that license or License
Exception. This is a reasonable policy and is retained in this interim
rule.
Two commenters proposed that forwarding agents not be required to
keep a record of the delegation of authority to them unless the
[[Page 12728]]
responsibility to do so was delegated by the exporter. This interim
rule does not adopt this suggestion. The proposed rule and this interim
rule conform with the existing EAR and with the FTSR on this issue.
Two commenters stated that the use of the phrase ``exporter and the
person submitting the document'' in the proposed Secs. 758.3(e) and
758.3(l)(1) expands the scope of the persons making representations to
the U.S. Government to include forwarders in instances where the
existing EAR does not impose responsibility on forwarders. We accepted
this recommendation. This interim rule adopts language from the
existing EAR. However, other sections of this interim rule, like the
existing EAR, impose liability on forwarders who make
misrepresentations to the government.
Two commenters recommended that the HTSUS numbers be permitted on
SEDs in lieu of Schedule B numbers. We did not adopt this
recommendation in this interim rule. The FTSR (15 CFR part 30) which
govern all exports from the United States require Schedule B numbers.
To the extent that there are differences between the HTSUS and the
Schedule B numbers, errors in compiling foreign trade statistics would
occur if either classification numbering system were permitted for
exports subject to the EAR.
One commenter recommended that this rule eliminate the
responsibility of exporters and forwarders who file summary monthly
reports in lieu of SEDs to ensure that carriers place the destination
control statement on bills of lading and air waybills. We did not adopt
this suggestion. The proposed rule and this interim rule follow the
existing EAR which was designed to assure that exports made under the
privileged monthly procedure were totally in compliance with the EAR.
Two commenters recommended that the regulations impose a limit on
the time that the Government may hold up export shipments for
inspection. We did not adopt that suggestion because it was beyond the
scope of the regulations reform exercise. Input from a number of other
government agencies would be necessary to develop a rational time
limit.
One commenter recommended that when the government orders a carrier
to return or unload a shipment that the government be required to
notify the exporter. We did not adopt this suggestion. In some cases
the exporter may be the target of an investigation and a notification
requirement could jeopardize legitimate law enforcement activities.
More than one agency has authority to order return or unloading and
developing a rule would require the coordinated input of several
agencies. That coordination would be beyond the scope of the
regulations reform exercise.
One commenter recommended that we require that exporters show the
Export Control Classification Number (ECCN) on the SED for all exports.
We did not adopt this suggestion. Although exporters need to determine
the proper ECCN in order to determine whether they need an export
license, requiring them to show that number on SED's for all exports
would unduly increase the paperwork burden.
To assist in defining parties to an export transaction, one
association recommended we adopt as a guide a Power of Attorney
utilized by Customs. We did not adopt this recommendation. The EAR
defines parties to a transaction in an adequate manner. Parties to
transactions additionally are free to adopt any Power of Attorney
arrangement that addresses pertinent roles and is not inconsistent with
the EAR or other applicable regulations.
One commenter questioned the proposed requirement to place the
various EAR authorizations for each item being exported under its
corresponding line item description. This commenter pointed out that
the FTSR requires that same information to be placed in blocks 21 and
22 on the SED form or continuation sheet. This interim rule adopts the
FTSR procedure and eliminates the requirement to repeat the
authorization under the line item description.
This same commenter also recommended that the ``Conformity''
provisions in Sec. 758.4(c)(2)(iii) be changed to allow a name of a
party other that the licensee/shipper on the SED to be shown on the
bill of lading as shipper. We did not adopt this recommendation. These
provisions are designed to assure that new parties are not introduced
in transactions contrary to the EAR and that exports are completed in
an orderly and legal manner. Additionally, the situation described may
be appropriately addressed in the application for license process, by
showing the foreign subsidiary as exporter/licensee and the United
States affiliated/related company as agent for the exporter.
Two commenters recommended eliminating the proposed rule
requirements concerning commodity descriptions on the SED
(Sec. 758.3(g)(2)(ii)) and the requirement that a copy of the
commercial invoice with a DCS be sent to the ultimate consignee
(Sec. 758.6(c)(4)). They claimed that these were new requirements. We
did not adopt the recommendations in this interim rule because the
proposed rule merely retained the requirements of the existing EAR.
Part 760--Restrictive Trade Practices or Boycotts
This part revises the existing part 769. The recordkeeping
requirement found in Sec. 760.5(b)(8) of this interim rule requires the
recipient of records relating to a reportable boycott request to keep
those records for five years after receipt of the request. The existing
EAR Sec. 769.6(b)(8) requires the recipient of records relating to a
reportable boycott request to keep those records for three years after
receipt of the request.
Two sections that were reserved in the existing EAR (769.5 and
769.7) have been removed. As a result of this change, Sec. 769.6 in the
existing EAR has been renumbered as Sec. 760.5 in this interim rule. In
addition two grace period provisions in the existing EAR have been
removed. They are; Sec. 760.2(f)(11) (along with its accompanying
example xi) in which certain actions to implement letters of credit
prior to the expirations of grace periods and Sec. 769.8 which
established a grace period for agreements entered into on or before May
16, 1977 could be complied with. The last such grace period expired on
December 31, 1978. Supplement No. 14 which relates to U.S. sanctions
against South Africa that have been repealed has also been removed and
subsequent supplements renumbered.
A new Supplement No. 16 interpreting antiboycott policy in light of
recent developments in Jordan has been added by this interim rule.
None of the changes made to this part by this interim rule were
published in the proposed rule.
Part 762--Recordkeeping
In this interim rule, this part has been reorganized and revised to
eliminate the requirement that regulated persons obtain BXA approval
prior to destroying original documents and replacing them with
electronic, magnetic, photographic or other images. This interim rule
also makes it clear that persons required to keep records may always
keep the records in the form in which that person receives or creates
it. It extends the recordkeeping period to five years to coincide with
the applicable statute of limitations and sets standards of legibility
and retrievability for reproductions that are kept in lieu of
originals.
Several commenters objected to the extension of the recordkeeping
requirement to five years in the
[[Page 12729]]
proposed rule. This interim rule adopts the five year record retention
period. A record retention period that coincides with the applicable
statute of limitations is needed to promote effective enforcement. In
addition, such a retention period benefits firms that comply with the
regulations because the EAR require that those who export under a
License Exception justify the use of that exception. Such persons will
need the records of the transaction to do so.
Three commenters suggested that recordkeeping requirements be
eliminated for certain categories of exports that do not require a
license from BXA. We did not adopt this suggestion. Many transactions
that are subject to the EAR do not require a license from BXA.
Comprehensive records are necessary for effective enforcement and
administration of the EAA and EAR.
One commenter objected to a requirement in the proposed rule that
records which are the subject of a request for production of records by
the government may not be destroyed even if the record retention period
has otherwise expired. This provision is a requirement under the
existing EAR and is retained in this interim rule. Enforcement and
compliance efforts would be undermined if parties were allowed to
destroy records after they have been notified that those records are
wanted in connection with an audit or investigation.
Several commenters recommended that we eliminate the specific
requirements for legibility and retrievability of reproduced records
that are kept in lieu of originals that appeared in the proposed rule.
We did not adopt this suggestion. This interim rule does not impose any
requirements of legibility on original records. However, standards of
legibility and retrievability are necessary when the originals are
destroyed and copies are retained in lieu thereof. BXA will continue to
review this issue to ascertain if the standards might be simplified
without compromising record integrity.
Two commenters recommended that the EAR specifically state that
records of certain activities of U.S. persons in connection with the
proliferation controls described in Secs. 734.2(b)(7) and 744.6 are
subject to the recordkeeping requirement. Although the proposed rule
stated that all transactions that are subject to the EAR are subject to
these recordkeeping requirements, we adopted this suggestion to make
more explicit the fact that activities subject to the proliferation
controls are covered.
Part 764--Enforcement
Eleven of the commenters dealt with part 764. This interim rule
makes numerous changes to the proposed rule based upon these comments.
This interim rule accepts the suggestion of one commenter and
revises Sec. 764.2(e) expressly to limit the offense of acting with
knowledge of a violation to actions that are connected with an item
that is the object of the violation of the EAA or EAR.
Section 764.2(j) is revised to remove from the list of violations a
number of actions characterized as ``trafficking and advertising export
control documents''. BXA accepted the suggestion that some of the
restrictions on the creation of an interest in a licensed transaction
are inconsistent with normal trade practice in financing and insuring
exports. BXA is eliminating other parts of this section as unnecessary
because limitations on license transfer and use are effectively covered
by other EAR provisions, such as Sec. 750.10, and concerns regarding
disclosure of a person's relationship to a transaction are covered by
provisions such as Sec. 764.2(g). This interim rule limits
Sec. 764.2(j) to the offense of license, other export control documents
or other alteration.
Some commenters called for distinguishing between ``substantive''
and ``minor'' violations. BXA did not adopt this suggestion. BXA
concludes that such distinctions are not feasible or appropriate with
respect to the type of activity covered by the EAR.
Some commenters urged BXA to list factors that would mitigate
sanctions for violations. BXA did not adopt this suggestion. BXA notes
that its practice shows that it is open to the consideration of a wide
range of mitigating factors, and it does not believe that a listing of
such factors is needed to enhance compliance or to ensure that
sanctions will be appropriate.
Some commenters called for BXA to include in the EAR a
comprehensive denial list that would include the names not only of
persons denied export privileges by BXA, but of persons covered by
denial orders or designations by other agencies. This interim rule does
not contain such a list. BXA cannot make its regulations an official
repository of legal action by other agencies. BXA will work with other
agencies to try to improve coordination of and access to the lists.
This interim rule describes certain measures such as license
suspensions and temporary denial orders and places them in a new
Sec. 764.6, entitled ``protective administrative measures''. These
measures are not punitive, but are intended to protect against activity
contrary to the purposes of the EAR. Although these measures were
included in the existing EAR and in the proposed rule, they were not
all in a single section. Placing these measures in a single section
distinguishes them from the sanctions which are covered elsewhere in
part 764.
Part 766--Administration Enforcement Proceedings
Five commenters specifically addressed part 766. Three of these
commenters addressed substantially the same points.
Three commenters called for changes to protect the interests of
persons BXA seeks to add to a denial order on the basis of relationship
to the respondent. This interim rule makes three such changes. It
revises Sec. 766.23 to clarify that prevention of evasion is the basis
for making an order applicable to a related person, to provide more
specifically and uniformly for notice to persons that BXA seeks to have
named as related, and provides that such persons may oppose or appeal
not only the issue of relationship, but also whether the order is
justified to prevent evasion. These commenters suggested, further, that
related persons be allowed to challenge the order on the merits, that
is, as to whether or not there has been a violation or a temporary
denial order is necessary in the public interest in order to prevent an
imminent violation. BXA did not adopt this suggestion. BXA believes
that it is proper to limit contests on the merits to respondents, as it
is the alleged conduct of respondents that is the basis for the order.
One commenter expressed concern that having the Under Secretary
decide appeals from Administrative Law Judge (ALJ) decisions in
enforcement proceedings raises doubts about impartiality, due process
and fairness. This commenter called for direct appeal from the ALJ to
the U.S. Court of Appeals. No such change has been made, as it would be
contrary to specific EAA provisions and to general administrative law
practice that makes final agency action subject to judicial review. An
ALJ decision cannot be final agency action under 50 U.S.C. app. 2412(c)
or (d). Moreover, BXA believes that its conduct of administrative
proceedings has been marked by fairness and the careful observance of
due process.
Three commenters called for stating that ``clear and convincing
evidence'' is required to sustain an administrative enforcement case.
BXA did not adopt this suggestion. The EAA (50 U.S.C.
[[Page 12730]]
app. 2412(c)) makes the Administrative Procedure Act (5 U.S.C. 556)
evidence standard (``reliable, probative, and substantial'')
applicable. BXA does not believe that any different EAR standard is
needed.
Three commenters called for detailed provisions on how much
evidence is needed to support a summary decision under Sec. 766.8.
BXA did not adopt this suggestion. BXA concludes that the use of
the standard ``there is no genuine issue as to any material fact'' is
proper and sufficient.
Another commenter stated that Sec. 766.24(b) should be revised to
define the ``imminent violation'' criterion for issuance of a temporary
denial order as requiring a showing of imminence both in nearness of
time and in likelihood of occurrence. BXA did not adopt this
suggestion. BXA retains its longstanding definition from the existing
EAR, consistent with the legislative history of the 1985 amendments to
the EAA, that either time or probability imminence will support the
issuance or renewal of a temporary denial order.
This interim rule adopts many improvements in drafting clarity and
precision that were suggested in the comments, along with numerous
others that BXA developed. This interim rule revises Sec. 766.7 to make
default procedures available in antiboycott proceedings. There were no
public comments suggesting this change, but it makes the procedures for
imposing administrative sanctions and other measures in antiboycott
cases more consistent with other proceedings under the EAR. Finally,
BXA decided to remove from this interim rule one provision that
appeared in the proposed rule even though no comments on it were
received. This interim rule eliminates a provision from Sec. 766.18 of
the proposed rule that would have barred reference in a settlement
order to a finding of a violation, as the content of such an order is
consensual. This deletion makes this interim rule consistent with the
existing EAR.
Part 768--Foreign Availability
Part 768 reflects the provisions described in part 791A of the
existing EAR. It implements section 5(h) of the Export Administration
Act (EAA) and contains procedures and criteria relating to
determinations of foreign availability for national security controlled
items. It is substantively unchanged from the existing part 791A. This
revised version contains several technical changes, such as use of the
term ``claimant'' instead of ``applicant,'' intended to make part 768
easier to read and understand.
Only three commenters mentioned this part in their submissions,
possibly because the Federal Register notice soliciting comments had
stated that BXA did not intend to make any significant changes in this
part.
One commenter questioned why Cuba is included in the definition of
``controlled countries'' for foreign availability purposes under
Sec. 768.1(d) and not for general purposes by inclusion in Country
Group D:1, as described in Supplement No. 1 to part 740. Cuba is a
``controlled country'' pursuant to determination made by BXA under
section 5(b) of the EAA. (See Export Administration Annual Report 1994,
at II-8.) Country Group D:1 does not include countries subject to broad
based embargoes, such as Cuba and North Korea, even though they are
controlled countries. This interim rule adds a clarifying notation
stating that since virtually all exports to Cuba and North Korea
currently are subject to an embargo, the foreign availability
procedures do not apply to these two controlled countries. A similar
notation is included in Supplement No. 1 to part 740.
Another commenter suggested that Sec. 768.7(d) be revised to
clearly reflect the provision of section 5(f)(3) of the EAA that ``the
Secretary shall accept the representations of applicants * * *
supported by reasonable evidence, unless contradicted by reliable
evidence * * *''. BXA did not make any revisions because Sec. 768.7
paragraphs (c), (d)(1), (d)(2), and (d)(3) of this interim Rule already
implement this provision.
One comment suggested that the provision in Sec. 768.7(f)((1)(i)(C)
for submitting foreign availability determinations to COCOM or a
successor regime was unnecessary and should be deleted. When COCOM
ceased functioning on March 31, 1994, the United States and other
member countries agreed to maintain the control lists that were in
place at that time until a successor regime was in place. A change has
been made in this interim rule to reflect BXA's intention to conduct
any necessary consultations with former member countries.
Another commenter questioned why foreign availability procedures do
not apply to foreign policy controlled items. Foreign availability is
always taken into account whenever foreign policy controls are imposed,
expanded, or extended. Because the purposes of foreign policy controls
vary, strict procedures for conducting assessments have not been deemed
to be warranted. Finally, one commenter suggested that part 768 be
revised to reflect the expanded role of the Strategic Industries and
Economic Security Office's Economic Analysis Division in considering
unfair impact, effectiveness of controls, and foreign availability, and
to discuss how exporters may contribute to this work and analysis. BXA
will consider such an addition to the EAR in future revisions.
Part 770--Interpretations
Part 770 contains certain interpretations concerning commodities,
software, technology, and de minimis exceptions for chemical mixtures.
These are designed to clarify the scope of the controls. BXA intends to
add interpretations to this part over time to aid you in interpreting
the EAR. Since the publication of the proposed rule, BXA has issued
certain interpretations on the application of the de minimis exclusion
for certain mixtures of chemicals. Those interpretations are added to
part 770 in this interim rule.
Some commenters suggested that the part numbers of this chapter and
others will overlap with the part numbers of different chapters in
earlier versions of the EAR and therefore BXA should use both odd and
even numbers for the parts of this interim rule. BXA does not believe
that using only even numbers for the parts of this interim rule will
cause confusion. BXA further believes that is it useful to retain only
even numbers in this interim rule so as to leave room for future parts
that cannot now be anticipated.
Certain commenters urged BXA to add interpretations of certain
issues; and BXA will review those recommendations for inclusion in the
future.
Commenters also asked BXA to include an interpretation of the
phrase ``specially designed.'' BXA is not responding to this
recommendation due to pending criminal enforcement action and for other
reasons.
This part contains certain interpretations regarding the de minimis
content of certain chemical mixtures. These reflect amendments to the
EAR adopted after the publication of the proposed rule.
Part 772--Definitions
This part defines terms as used in the EAR.
In response to comments, this interim rule combines the definitions
part from the proposed rule with the multilaterally-agreed definitions
found on the Commerce Control List that are found in Supplement No. 3
to Sec. 799A.1 of the existing EAR. These definitions may be
distinguished from other definitions by the fact that they appear in
quotation marks.
[[Page 12731]]
Part 774--The Commerce Control List
On May 11, 1995, BXA published an advance notice of public
rulemaking in the Federal Register, (60 FR 25480), soliciting comments
from industry and interested public on whether and how to conform the
numbering system used to identify items controlled by the Export
Administration Regulations, or Export Control Classification Numbers
(ECCNs), with the numbering system used by the European Union (EU) to
identify such items.
BXA received a total of eighteen responses to the May 11 notice.
Ten commenters responded directly to this notice, while the remaining
commenters included comments on the May 11 notice with their comments
on the proposed rule. Additional verbal comments were also provided at
the town-hall fora conducted throughout the United States by BXA.
Overall, industry supports harmonizing the U.S. ECCN system with
the EU numbering system. The following is an analysis of the responses
to the five questions posed by BXA in the Federal Register notice,
followed by other general comments.
1. Should the U.S. Harmonize the ECCNs With the EC Numbers and
Encourage Other Countries To Adopt a Uniform Numbering System?
Most commenters stated that they were very supportive of adopting
the EU numbering system. Four stated that if such a change were to be
made, there should be a grace period during which either the ECCN or EU
number could be used. One of these commenters stated that the grace
period should be six months, and another stated that a minimum of nine
months should be allowed for a smooth transition to the new system. One
company stated that it would be less costly to plan for such a change
now rather than sometime in the ``years ahead''. Another commenter
stated that although the initial computerization of the new numbers
could be costly, they will be able to use the information to process
export declarations electronically, which will make processing the
information much more timely.
One foreign-based company stated that they do not support
converting the ECCNs to the EU numbering system because the U.S.-based
ECCN automatically shows that the item is U.S.-origin, and that there
are just too many discrepancies between the items controlled by ECCNs
and the corresponding EU numbers. Another commenter who does not
support conversion to the EU numbering system stated that the use of a
common ECCN has little benefit in the export documentation and should
not be considered an advantage to exporters. This commenter further
stated that it was only recently that they incurred costs of
administering the changes BXA made to the ECCNs to implement the
Coordinating Committee on Multilateral Export Control's (COCOM) ``Core
List'' in 1991 (56 FR 42824, August 29, 1991), and would not want to do
it again. Another commenter stated that the ECCN system is a good
system that works and that they see no advantage of a world-wide system
in this area.
One commenter, that supported the conversion of ECCNs to the EU
system, stated that BXA should not require conversion to the EU system
until the differences between the existing ECCNs and the numbering
system used by the EU are resolved, and also until the COCOM successor
regime and control lists are finalized and all export destinations
agree to adopt the system. Another commenter echoed this opinion, and
added that the new U.S. ECCNs should only be developed for U.S.-
controlled items now controlled by the EU. One commenter stated that
unless the U.S. and EU numbers are identical, there will still be a
need for exporters to classify U.S. and EU separately.
BXA agrees that complete harmonization between the new ECCN system
and the EU system is desirable. Without such harmonization, any
resulting list may be confusing for industry and difficult to
implement. For multilaterally controlled items, the new ECCNs described
in this interim rule are renumbered according to the comparable entry
on the EU list. The scope of such controls are generally the same on
both lists, however the style of the text may be different.
It is important to note that the EU list provides guidance to
member states on the control parameters for items controlled by on the
Industrial List, the International Atomic Energy List, Missile
Technology Control Regime Annex, the Nuclear Supplier's Group, and the
list of items controlled by the Australia Group. Each EU member
publishes its own national list to implement such controls and any
other unilateral controls. Many national lists are therefore different
from the EU list, except for the scope of multilateral controls. The
U.S. also uses discretion in developing its national list, the CCL, for
dual-use items. Certain entries on the CCL have been created for those
items that are not controlled multilaterally on the EU list. Such items
are identified an unilateral controls. In those few instances where the
multilateral entries differ, the U.S. will ask its trading partners to
adopt the CCL.
2. What are the Specific Implications If We Change the ECCNs To Conform
With the EC Numbering System? For Example, if You Currently Have
Computer Programs That Aid in Facilitating Exports and Reexports, What
Will be the Programming Implications for Your Firm if We Make This
Change?
Most of the commenters stated that the reprogramming of computer
systems would be a significant undertaking to convert to a EU numbering
system. One commenter stated that they estimate it would take
approximately 2 person years of effort and $300,000 to change the data
base and ancillary associated systems worldwide. The time for
performing this effort would be approximately three to four months. Two
commenters stated that consideration would need to be given to the
diversion of human resources from current tasks to the review of entire
product lines against the proposed new classification numbers. This
would involve the review of several thousand product part numbers and
the time required to enter each new EU-based number into the computer
system. Three commenters remarked on the export control personnel
retraining requirements requisite to use of the new numbering system.
Another commenter stated that changes to their current system would be
minimal, but they are now in the process of upgrading relevant programs
and processes, and would like to see a change in numbering system now.
One commenter stated that they currently give dual classifications
(ECCN and EU number) to items on their product matrices, and that the
matrices are computerized. Changes to the matrices will be required for
the implementation of the EAR simplification project, so it would be
beneficial if the ECCN harmonization could be carried out at the same
time.
BXA is sympathetic to the time and cost involved in implementing a
new numbering system. However, as many companies have stated, the
benefits of a global numbering system far outweigh the costs of
implementing such a system. The new ECCNs identified in this interim
rule implement the first steps toward a global control list.
[[Page 12732]]
3. What Problems Have You Had in the Past in Tracking Two or More
Numbering Systems for Identical Items Controlled by Two or More
Countries?
One commenter stated that a uniform numbering system would
eliminate a potential area for misunderstanding or confusion in
references to a specific item while another stated that the current
need to track multiple numbering systems adds cost and unnecessary
complexity to their compliance programs. This latter commenter also
stated that there is added confusion caused by changes on different
dates by different countries to the various lists. Another commenter
stated that the lack of correlation between the various lists has made
it all but impossible to develop a computerized correlation between the
various numbers that may apply to one unique product. This commenter
also stated there is no correlation in the EU numbering system for
ECCNs designated for unilateral controls.
4. What Are the Specific Ways in Which a Uniform Numbering System Would
Help Your Company?
Five commenters responded to this question. One commenter stated
that it would simplify their product matrices, while another two stated
that it would streamline their training procedures. One of these
commenters also stated that it would also increase their ability to
maintain high levels of export control compliance. Another commenter
agreed that standardization would allow the company to avoid building
and maintaining cross-reference tables as they communicate order
requirements and status on U.S. export orders with importing foreign
entities.
Another commenter also cited simplification as the major benefit of
a uniform system, and highlighted the specific benefit of consistency
in classification of items. Only one commenter stated that a uniform
numbering system would not benefit their company, but provided no
further explanation as to why it would not be beneficial.
5. Are There Numbering Systems of Other Countries That You Prefer to
the EC System? If So, State Which Ones and Exactly How You Would
Reconcile Any Differences in Scope?
Two of the ten commenters supported maintaining the current ECCN
system. Of the seven commenters that specifically supported a unified
numbering system, none identified a system other than the EU as
preferable.
Four commenters provided additional comments other than those
supporting the four specific questions posed in the May 11 Federal
Register notice. One commenter, who did not support a conversion to the
EU numbering system, stated that the fourth and fifth digits of the EU
number do not provide any real benefit or added clarity. This commenter
further stated that the alpha-character used at the end of the current
ECCNs has been useful in internal control procedures. For example, an
``A'' at the end of a ECCN easily indicates a highly sensitive item,
while a ``G'' indicates greater range of exportability.
Two commenters, who were supportive of the EU numbering system,
also supported the elimination of basket categories. One of these
commenters stated that the continued use of such categories would
conflict with the objective of harmonizing the ECCNs with the EU list.
Another commenter stated that elimination of the ``G'' level basket
categories was not favorable.
One commenter also stated that there should be no interim or
intermediate changes to the ECCN numbering system, and future changes
to the control list should be effective on the same date in all
countries that are a party to the control regimes using the list. The
EU provides guidance to member states for drafting national control
lists. Each state is responsible for implementing changes to
multilateral control lists based upon agreements reached by the
Wassenaar Arrangement, the Missile Technology Control Regime, the
Nuclear Suppliers Group, and the Australia Group. BXA will continue to
implement agreements reached by each of the regimes through prompt
publication in the Federal Register.
Another commenter suggested that if the United States were to adopt
the EU numbering system, BXA should clarify whether new control numbers
(not included on the EU control list) represent new controls, and if
so, what items are being suggested for control and the policy basis for
such controls. A comprehensive cross-reference will be included in
Supplement No. 3 to this part. The Supplement will provide cross-
references for both new format to old format and old to new, so that
readers will be able to locate new numbers based on their current
ECCNs. In this manner, readers will be able to determine the origin of
all numbers that do not currently appear on the EU list. Further, the
revised CCL implements recent multilateral agreements that have not yet
been incorporated in the EU list, such as the NSG revisions published
February 1, 1996 (61 FR 3555).
Under the new numbering system adopted by this interim rule, it
will be easy to identify whether an item is controlled multilaterally
(e.g., for national security, missile technology, nuclear
nonproliferation, or chemical and biological reasons) or unilaterally,
based upon the third digit of the number. ECCNs having a ``9'' as their
third digit (i.e., 5A980, surreptitious listening devices) are controls
unique to the United States, just as other countries may have their own
unique controls. Further, Category 10 has been renumbered, and will
appear as Category 0 in conformance with the EU list. Titles of the
various categories have also been revised in conformance with the EU.
This interim rule retains one ``basket'' entry (EAR99), referenced
at the end of each category in the Commerce Control List, which
contains all the items that used to be classified under those ECCNs
ending with ``96G'' and were thus eligible for General License G-DEST
to most destinations. Items classified as EAR99 are those items not
specified on the CCL, but still subject to the EAR. Therefore,
exporters first must determine that their items are not, in fact, on
the CCL; only then may they classify their items as EAR99.
As in the existing EAR, terms enclosed in quotation marks (i.e.,
``aircraft'' or ``production'') are those with multilaterally agreed
definitions that appear throughout the CCL. These definitions, found in
Supplement No. 3 to part 799A of the existing EAR, are in this interim
rule integrated into part 772 (Definitions). By contrast, definitions
or parameters not enclosed in quotation marks and identified by the
Related Definitions header in individual ECCNs are unique to particular
entries, and therefore appear only in those entries.
Administrative Exception Notes, denoting ``favorable
consideration'' of licenses for certain items to certain destinations
in the existing Supplement No. 1 to part 799A, became meaningless when
COCOM disbanded, and they have been removed from the CCL in this
interim rule.
With the harmonization of the CCL and the EU list, most items will
need to be reclassified. Exporter and reexporters may submit requests
for reclassification beginning on the effective date of this interim
rule. BXA will publish a list of those ECCNs where reclassification is
not necessary prior to November 1, 1996.
Forms Supplement
The new Multipurpose Application Form, BXA-748P, will replace the
Application for Export License (BXA-622P) and the Request for Reexport
Authorization (BXA-699P). It will also
[[Page 12733]]
serve as an application for the Special Comprehensive License.
Additionally, the BXA-748P will accommodate Commerce Classification
Requests, thus allowing item classifications to be handled
electronically.
The BXA-711P replaces BXA-629P, Statement by Ultimate Consignee and
Purchaser. A letter from the ultimate consignee or purchaser may now be
substituted for this form, provided the letter contains the same
information. The BXA-752P will be required as support documentation for
the Special Comprehensive License, replacing the Statement by Foreign
Consignee in Support of Special License Application (BXA-6052P).
The International Import Certificate (BXA-645P/ATF-4522/DSP-53),
the Delivery Verification Certificate (BXA-647P), and the Notification
of Delivery Verification Requirement (BXA-648P) remain unchanged.
Applicants will now submit replacement licenses rather than amendment
requests when their situations change; therefore, the Request for
Amendment Action (BXA-685P) will be discontinued.
Exporters and reexporters may find instructions for completing
forms in part 748, while applicants for the Special Comprehensive
License may find instructions in part 752.
Applicants must begin using the new forms as of June 15, 1996. Due
to the requirements of electronic submission and processing systems,
there will be no transition period during which either version of each
form may be used. Old forms received after the changeover date will be
returned without action to the applicant. Forms may be obtained from
U.S. Department of Commerce District Offices or from: Exporter
Counselling Division, Bureau of Export Administration, Room 1099, U.S.
Department of Commerce, 14th Street and Pennsylvania Avenue, NW.,
Washington, DC 20230. Telephone (202) 482-4811.
Rulemaking Requirements
1. For purposes of Executive Order 12866, this interim rule has
been determined to be significant.
2. Notwithstanding any other provision of law, no person is
required to respond to nor shall a person be subject to a penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a currently valid OMB Control Number. This interim
rule contains five new collections of information subject to the
requirements of the Paperwork Reduction Act, 44 U.S.C. ch. 35, which
were cleared by the Office of Management and Budget. The new
``Multipurpose Application'' is cleared under OMB Control Number 0694-
0088, the ``Special Comprehensive License'' is cleared under OMB
Control Number 0694-0089, five year record retention is cleared under
OMB Control Number 0694-0096, the one-time report on calculations under
the de minimis rule for software and technology is cleared under OMB
Control Number 0694-0101, requests for appointment of a Technical
Advisory Committee is cleared under OMB Control Number 0694-0100,
miscellaneous activities are cleared under OMB Control Number and 0694-
0102. All other collections of information contained in the rulemaking
have been previously approved by OMB. Supplement No. 2 to part 730 of
the EAR contains a table of the current OMB Control Numbers. The public
reporting burdens for the new collections of information are estimated
to average 45 minutes for the Multipurpose Application, between 20 and
40 hours for the Special Comprehensive License, 10 seconds for
recordkeeping, 25 hours for the one-time report, 5 hours for requests
for appointment of Technical Advisory Committee, and 5 hours for
petitions covered under miscellaneous activities. These estimates
include the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collections of information. Send comments regarding these
burden estimates or any other aspect of these collections of
information, including suggestions for reducing the burden, to Larry E.
Christensen, Director, Regulatory Policy Division, Bureau of Export
Administration, U.S. Department of Commerce, Washington, D.C. 20230.
3. For purposes of Executive Order 12612, this interim rule does
not contain policies with Federalism implications sufficient to warrant
preparation of a Federalism Assessment.
4. Pursuant to authority at 5 U.S.C. 553(a)(1) and section 13(a) of
the Export Administration Act, 50 U.S.C. 2401-2420 et seq., though
prior notice and an opportunity for public comment are provided, such
procedures are not required for this regulatory action. As such, no
Initial or Final Regulatory Flexibility Analysis is required under
sections 3 and 4 of the Regulatory Flexibility Act, 5 U.S.C. 603(a) and
604(a), and none has been prepared.
5. Although the Export Administration Act expired on August 20,
1994, the President invoked his authority under the International
Emergency Economic Powers Act, through Executive Order 12924, August
19, 1994, as extended on August 15, 1995, and determined that, to the
extent permitted by law, the provisions of the Export Administration
Act shall be extended so as to continue in full force and effect and
amend, as necessary, the export control system previously implemented,
as the Export Administration Regulations, pursuant to the Export
Administration Act.
However, because of the importance of the issues raised by these
regulations, this rule is issued in interim form and comments will be
considered in the development of final regulations. Accordingly, the
Department encourages interested persons who wish to comment to do so
at the earliest possible time to permit the fullest consideration of
their views.
The period for submission of comments will close May 24, 1996. The
Department will consider all comments received before the close of the
comment period in developing final regulations. Comments received after
the end of the comment period will be considered if possible, but their
consideration cannot be assured. The Department will not accept public
comments accompanied by a request that a part or all of the material be
treated confidentially because of its business proprietary nature or
for any other reason. The Department will return such comments and
materials to the person submitting the comments and will not consider
them in the development of final regulations. All public comments on
these regulations will be a matter of public record and will be
available for public inspection and copying. In the interest of
accuracy and completeness, the Department requires comments in written
form.
Oral comments must be followed by written memoranda, which will
also be a matter of public record and will be available for public
review and copying. Communications from agencies of the United States
Government or foreign governments will not be made available for public
inspection.
The public record concerning these regulations will be maintained
in the Bureau of Export Administration Freedom of Information Records
Inspection Facility, Room 4525, Department of Commerce, 14th Street and
Pennsylvania Avenue, N.W., Washington, DC 20230. Records in this
facility, including written public comments and memoranda summarizing
the substance of oral communications, may be inspected and copied in
accordance with regulations published in Part 4 of Title 15 of the Code
of Federal Regulations.
[[Page 12734]]
Information about the inspection and copying of records at the facility
may be obtained from Margaret Cornejo, Bureau of Export Administration
Freedom of Information Officer, at the above address or by calling
(202) 482-5653.
List of Subjects
15 CFR Part 730
Administrative practice and procedure, Advisory committees,
Exports, Foreign trade, Reporting and recordkeeping requirements,
Strategic and critical materials.
15 CFR Part 732
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 734
Administrative practice and procedure, Exports, Foreign trade.
15 CFR Part 736
Exports, Foreign trade.
15 CFR Part 738
Exports, Foreign trade.
15 CFR Part 740
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 742
Exports, Foreign trade.
15 CFR Part 744
Exports, Foreign trade, Reporting and recordkeeping requirements.
15 CFR Part 746
Embargoes, Exports, Foreign trade, Reporting and recordkeeping
requirements.
15 CFR Part 748
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 750
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 752
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 754
Exports, Foreign trade, Forests and forest products, Petroleum,
Reporting and recordkeeping requirements.
15 CFR Part 756
Administrative practice and procedure, Exports, Foreign trade,
Penalties.
15 CFR Part 758
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 760
Boycotts, Exports, Foreign trade, Reporting and recordkeeping
requirements.
15 CFR Part 762
Administrative practice and procedure, Business and industry,
Confidential business information, Exports, Foreign trade, Reporting
and recordkeeping requirements.
15 CFR Part 764
Administrative practice and procedure, Exports, Foreign trade, Law
enforcement, Penalties.
15 CFR Part 766
Administrative practice and procedure, Confidential business
information, Exports, Foreign trade, Law enforcement, Penalties.
15 CFR Part 768
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 770
Exports, Foreign trade.
15 CFR Part 772
Exports, Foreign trade.
15 CFR Part 774
Exports, Foreign trade.
Under authority set forth at 50 U.S.C. 2401 et seq., and for the
reasons set forth in the preamble, Subchapter C, Chapter 7 of Title 15,
Code of Federal Regulations is amended as follows:
1. In Subchapter C, the following parts are redesignated with an A
as set forth in the table below:
------------------------------------------------------------------------
Old part New part
------------------------------------------------------------------------
768....................................... 768A
769....................................... 769A
770....................................... 770A
771....................................... 771A
772....................................... 772A
773....................................... 773A
774....................................... 774A
775....................................... 775A
776....................................... 776A
777....................................... 777A
778....................................... 778A
779....................................... 779A
785....................................... 785A
786....................................... 786A
787....................................... 787A
788....................................... 788A
789....................................... 789A
790....................................... 790A
791....................................... 791A
799....................................... 799A
------------------------------------------------------------------------
2. All internal references appearing in newly designated parts 768A
through 779A, 785A through 791A, and 799A are revised as set forth in
the redesignation table set forth above.
3. Effective November 1, 1996, the newly designated parts are
removed.
4. Newly designated Sec. 771A.25(d) is removed effective March 25,
1996.
5. Parts 730, 732, 734, 736, 738, 740, 742, 744, 746, 748, 750,
752, 754, 756, 758, 760, 762, 764, 766, 768, 770, 772, and 774 are
added to read as follows:
PART 730--GENERAL INFORMATION
Sec.
730.1 What these regulations cover.
730.2 Statutory authority.
730.3 Dual use exports.
730.4 Other control agencies and departments.
730.5 Coverage of more than exports.
730.6 Control purposes.
730.7 License requirements and exceptions.
730.8 How to proceed and where to get help.
730.9 How the Bureau of Export Administration is organized.
730.10 Advisory information.
Supplement No. 1 to Part 730--Information Collection Requirements Under
the Paperwork Reduction Act: OMB Control Numbers
Supplement No. 2 to Part 730--Technical Advisory Committees
Supplement No. 3 to Part 730--Other U.S. Government Departments and
Agencies With Export Control Responsibilities
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C.
287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; Sec. 201, Pub. L. 104-
58, 109 Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C.
2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50
U.S.C. app. 5; E.O. 11912, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 3
CFR, 1977 Comp., p. 133; E.O. 12058, 3 CFR, 1978 Comp., p. 179; E.O.
12214, 3 CFR, 1980 Comp., p. 256; E.O. 12851, 3 CFR, 1993 Comp., p.
608; E.O. 12867, 3 CFR, 1993 Comp., p. 649; E.O. 12918, 3 CFR, 1994
Comp., p. 899; E.O. 12924, 3 CFR, 1994 Comp., p. 917; E.O. 12938, 3
CFR, 1994 Comp., p. 950; Notice of
[[Page 12735]]
August 15, 1995 (60 FR 42767, August 17, 1995); E.O. 12981, 60 FR
62981.
Sec. 730.1 What these regulations cover.
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 Export
Administration (BXA) 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.
Sec. 730.2 Statutory authority.
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 Federal Register documents promulgating the EAR and
at the beginning of each part of the EAR in the Code of Federal
Regulations (CFR). From time to time, the President has exercised
authority under the International Emergency Economic Powers Act with
respect to the EAR (50 U.S.C. 1701-1706 (IEEPA)). The EAA is not
permanent legislation, and when it has lapsed, Presidential executive
orders under IEEPA have directed and authorized the continuation in
force of the EAR.
Sec. 730.3 Dual use exports.
The convenient term ``dual use'' is sometimes used to distinguish
the types of items covered by the EAR from those that are covered by
the regulations of certain other U.S. government departments and
agencies with export licensing responsibilities. In general, the term
dual use serves to distinguish EAR-controlled items that can be used
both in military and other strategic uses (e.g., nuclear) and
commercial applications. In general, the term dual use serves to
distinguish EAR-controlled items that can be used both in military and
other strategic uses and in civil applications from those that are
weapons and military related use or design and subject to the controls
of the Department of State or subject to the nuclear related controls
of the Department of Energy or the Nuclear Regulatory Commission. Note,
however, that although the short-hand term dual use may be employed to
refer to the entire scope of the EAR, the EAR also apply to some items
that have solely civil uses.
Sec. 730.4 Other control agencies and departments.
In addition to the departments and agencies mentioned in Sec. 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.
Sec. 730.5 Coverage of more than exports.
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) Reexports. Commodities, software, and technology that have been
exported from the United States are generally subject to the EAR with
respect to reexport. Many such reexports, however, may go to many
destinations without a license or will qualify for an exception from
licensing requirements.
(b) Foreign products. In some cases, authorization to export
technology from the United States will be subject to assurances that
items produced abroad that are the direct product of that technology
will not be exported to certain destinations without authorization from
BXA.
(c) Scope of ``exports''. Certain actions that you might not regard
as an ``export'' in other contexts do constitute an export subject to
the EAR. The release of technology to a foreign national in the United
States through such means as demonstration or oral briefing is deemed
an export. Other examples of exports under the EAR include the return
of foreign equipment to its country of origin after repair in the
United States, shipments from a U.S. foreign trade zone, and the
electronic transmission of non-public data that will be received
abroad.
(d) U.S. person activities. To counter the proliferation of weapons
of mass destruction, the EAR restrict the involvement of ``United
States persons'' anywhere in the world in exports of foreign-origin
items, or in providing services or support, that may contribute to such
proliferation.
Sec. 730.6 Control purposes.
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 the Nuclear
Suppliers Group, the Australia Group, and the Missile Technology
Control Regime. The EAR also include some export controls to protect
the United States from the adverse impact of the unrestricted export of
commodities in short supply.
Sec. 730.7 License requirements and exceptions.
A relatively small percentage of exports and reexports subject to
the EAR require an application to BXA for a license. Many items are not
on the Commerce Control List (CCL) (Supplement No. 1 to Sec. 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 BXA.
Sec. 730.8 How to proceed and where to get help.
(a) How the EAR are organized. The Export Administration
Regulations (EAR) are structured in a logical manner. In dealing with
the EAR you may find it helpful to be aware of the overall organization
of these regulations. In order to determine what the rules are and what
you need to do, review the titles and the introductory sections of the
parts of the EAR.
[[Page 12736]]
(1) How do you go about determining your obligations under the EAR?
Part 732 of the EAR provides steps you may follow to determine your
obligations under the EAR. You will find guidance to enable you to tell
whether or not your transaction is subject to the EAR and, if it is,
whether it qualifies for a License Exception or must be authorized
through issuance of a license.
(2) Are your items or activities subject to the EAR at all? Part
734 of the EAR defines the items and activities that are subject to the
EAR. Note that the definition of ``items subject to the EAR'' includes,
but is not limited to, items listed on the Commerce Control List in
part 774 of the EAR.
(3) If subject to the EAR, what do the EAR require? Part 736 of the
EAR lists all the prohibitions that are contained in the EAR. Note that
certain prohibitions (General Prohibitions One through Three) apply to
items as indicated on the CCL, and others (General Prohibitions Four
through Ten) prohibit certain activities and apply to all items subject
to the EAR unless otherwise indicated.
(4) Do you need a license for your item or activity? What policies
will BXA apply if you do need to submit license application? The EAR
have four principal ways of describing license requirements:
(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 BXA 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 Secs. 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) How do you file a license application and what will happen to
the application once you do file it? What if you need authorization for
multiple transactions? Parts 748 and 750 of the EAR provide information
on license submission and processing. Part 752 of the EAR provides for
a Special Comprehensive License that authorizes multiple transactions.
If your application is denied, part 756 of the EAR provides rules for
filing appeals.
(6) How do you clear shipments with the U.S. Customs Service? Part
758 of the EAR describes the requirements for clearance of exports.
(7) Where do you find the rules on restrictive trade practices and
boycotts? Part 760 of the EAR deals with restrictive trade practices
and boycotts.
(8) Where are the rules on recordkeeping and enforcement? Part 762
of the EAR sets out your recordkeeping requirements, and parts 764 and
766 of the EAR deal with violations and enforcement proceedings.
(9) What is the effect of foreign availability? Part 768 of the EAR
provides rules for determining foreign availability of items subject to
controls.
(10) Do the EAR provide definitions and interpretations? Part 770
of the EAR contains interpretations and part 772 of the EAR lists
definitions used.
(b) Why the EAR are so detailed. Some people will find the great
length of the EAR and their extensive use of technical terms
intimidating. BXA believes, however, that such detail and precision can
and does serve the interests of the public. The detailed listing of
technical parameters in the CCL establishes precise, objective
criteria. This should, in most cases, enable you to ascertain the
appropriate control status. Broader, more subjective criteria would
leave exporters and reexporters more dependent upon interpretations and
rulings by BXA officials. Moreover, much of the detail in the CCL is
derived from multilaterally adopted lists, and the specificity serves
to enhance the uniformity and effectiveness of international control
practices and to promote a ``level playing field''. The detailed
presentation of such elements as licensing and export clearance
procedures enables you to find in one place what you need to know to
comply with pertinent requirements. Of special importance is the
detailed listing of License Exception criteria, as these will enable
you to determine quickly, and with confidence, that you may proceed
with a transaction without delay. Finally, some of the detail results
from the need to draft the EAR with care in order to avoid loop-holes
and to permit effective enforcement.
(c) Where to get help. Throughout the EAR you will find information
on offices you can contact for various purposes and types of
information. General information including; assistance in understanding
the EAR, information on how to obtain forms, electronic services,
publications, and information on training programs offered by BXA, is
available from the Office of Exporter Services at the following
locations:
Exporter Counselling Division, U.S. Department of Commerce, 14th and
Pennsylvania Avenue, N.W., Room H1099D, Washington, D.C., 20230,
Telephone number: (202) 482-4811, Facsimile number: (202) 482-3617
and
Western Regional Office, U.S. Department of Commerce, 3300 Irvine
Avenue, Suite 345, Newport Beach, California 92660, Telephone
number: (714) 660-0144, Facsimile number: (714) 660-9347
and
Santa Clara Branch Office, U.S. Department of Commerce, 5201 Great
America Parkway, Suite 333, Santa Clara, California 95054, Telephone
number: (408) 748-7450, Facsimile number: (408) 748-7470.
Sec. 730.9 How the Bureau of Export Administration is organized.
Functionally, the Bureau of Export Administration is divided into
two branches, Export Administration and Export Enforcement. Also, BXA
manages a number of Technical Advisory Committees consisting of
industry and government representatives which advise and assist BXA and
other agencies with respect to actions designed to implement the EAR.
(a) Export Administration. Export Administration implements and
[[Page 12737]]
administers the export controls reflected in the EAR. Export
Administration consists of five offices located in Washington D.C. and
two field offices in California under the supervision of the Assistant
Secretary for Export Administration:
(1) The Office of Nuclear and Missile Technology Controls is
responsible for policy and technical issues and license applications
related to the Nuclear Suppliers Group and the Missile Technology
Control Regime. This office has responsibility for items associated
with those regimes, and missile and nuclear related exports and
reexports subject to the Enhanced Proliferation Control Initiative.
(2) The Office Chemical/Biological Controls and Treaty Compliance
is responsible for implementing multilateral export controls under the
Australia Group. This office has licensing responsibility for items
associated with the Australia Group and related exports and reexports
subject to the Enhanced Proliferation Control Initiative.
(3) The Office of Strategic Trade and Foreign Policy Controls is
responsible for implementing multilateral export controls dealing with
conventional arms and related dual use items. This office is also
responsible for computer export control policies, and implements U.S.
foreign policy controls (e.g., crime control, anti-terrorism, and
regional stability). It also has licensing responsibility for items
controlled for national security and foreign policy reasons.
(4) The Office of Exporter Services is responsible for the Special
Comprehensive License, processing and routing all license applications,
and preparing responses to requests for advisory opinions and commodity
classifications. This office also provides counselling to exporters and
reexporters, conducts educational seminars for the business community,
maintains the Export Administration Regulations, and coordinates the
operations of two field offices listed in Sec. 730.8(c) of this part.
(5) The Office of Strategic Industries and Economic Security
implements programs to ensure the continued health of the U.S. defense
industrial base, facilitating diversification of U.S. defense related
industries into civilian markets, and promoting the conversion of
military enterprises. This office is also responsible for analyzing the
economic impact of U.S. export controls on industrial competitiveness.
(b) Export Enforcement. Export Enforcement implements the
enforcement provisions of the EAR, including part 760 of the EAR
(Restrictive Trade Practices and Boycotts). This office also conducts
outreach programs to assist members of the public in understanding
their obligation under EAR. The Office of Export Enforcement is
organized into three offices under the supervision of the Assistant
Secretary for Export Enforcement.
(1) The Office of Export Enforcement (OEE) is comprised of an
office in Washington, D.C. and eight field offices. OEE is staffed with
criminal investigators and analysts. This office investigates
allegations of violations and supports administrative and criminal
enforcement proceedings. The addresses and telephone numbers of the
eight field offices are listed in Sec. 764.5(c)(7) of the EAR.
(2) The Office of Enforcement Support (OES) is located in
Washington, D.C. OES supports BXA's preventive enforcement efforts,
including conducting pre-license checks and post-shipment
verifications. OES also provides administrative and analytical support
for OEE.
(3) The Office of Antiboycott Compliance administers and enforces
the provisions of part 760 of the EAR (Restrictive Trade Practices and
Boycotts). It investigates and prepares cases on alleged violations of
this part.
(c) Technical Advisory Committees. The Technical Advisory
Committees (TACs) provide advice and assistance to BXA from U.S.
industry regarding the creation and implementation of export controls.
For further information regarding establishment of TACs and other
information, see Supplement No. 2 to part 730. Existing TACs include
the following:
(1) The Computer Systems Technical Advisory Committee;
(2) The Electronics Technical Advisory Committee;
(3) The Materials Technical Advisory Committee;
(4) The Materials Processing Equipment Technical Advisory
Committee;
(5) The Regulations and Procedures Technical Advisory Committee;
(6) The Sensors Technical Advisory Committee;
(7) The Telecommunications Equipment Technical Advisory Committee;
and
(8) The Transportation and Related Equipment Technical Advisory
Committee.
Sec. 730.10 Advisory information.
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 BXA, 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.
Supplement No. 1 to Part 730--Information Collection Requirements
Under the Paperwork Reduction Act: OMB Control Numbers
This Supplement lists the control numbers assigned to the
information collection requirements for the Bureau of Export
Administration 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.
------------------------------------------------------------------------
15 CFR part or section where
Current OMB control No. collections of information
are identified or described
------------------------------------------------------------------------
0694-0001................................. Sec. 748.12(d) of the EAR.
0694-0004................................. Part 768 of the EAR.
0694-0008................................. Sec. 748.13, Supplement No.
5 to part 748 of the EAR.
0694-0009................................. Sec. 748.10(e) of the EAR.
0694-0012................................. Part 760 and Sec. 762.2(b)
of the EAR.
0694-0013................................. Part 774 of the EAR.
0694-0015................................. Sec. 773.3 of the EAR.
0694-0016................................. Secs. 748.13 and 762.2(b)
of the EAR.
0694-0017................................. Sec. 748.10 of the EAR.
0694-0021................................. Secs. 748.11 and 762.2(b)
of the EAR.
0694-0023................................. Secs. 740.3(d) and 740.4(c)
of the EAR.
0694-0025................................. Secs. 754.4 and 762.2(b) of
the EAR.
0694-0026................................. Sec. 754.3 of the EAR.
0694-0027................................. Sec. 754.2 of the EAR.
0694-0029................................. Sec. 740.4(a) of the EAR.
0694-0030................................. Supplement No. 2 to part
748, paragraph (p) of the
EAR.
0694-0031................................. Sec. 750.9 of the EAR.
0694-0032................................. Sec. 748.4(d)(2) of the
EAR.
0694-0033................................. Secs. 740.7(b) and 762.2(b)
of the EAR.
0694-0038................................. Sec. 758.6(e)(2) of the
EAR.
0694-0040................................. Secs. 758.5(c)(2) and 758.8
of the EAR.
0694-0047................................. Supplement No. 2 to part
748, paragraph (o)(2) of
the EAR.
0694-0048................................. Sec. 748.3 of the EAR.
0694-0050................................. Sec. 752.5(c)(5) of the
EAR.
[[Page 12738]]
0694-0051................................. Sec. 750.10 of the EAR.
0694-0058................................. Secs. 762.2(b) and 764.5 of
the EAR.
0694-0064................................. Secs. 748.9 and 762.2(b) of
the EAR.
0694-0065................................. Sec. 754.4(c) of the EAR of
the EAR.
0694-0073................................. Sec. 742.12, Supplement No.
3 to part 742, and Sec.
762.2(b) of the EAR.
0694-0078................................. Supplement No. 1 to part 774
of the EAR.
0694-0086................................. Supplement No. 1 to part 774
of the EAR.
0694-0088................................. Parts 746, 748, and 752;
Sec. 762.2(b) of the EAR.
0694-0089................................. Part 752 and Sec. 762.2(b)
of the EAR.
0694-0093................................. Secs. 748.10 and 762.2(b)
of the EAR.
0694-0094................................. Part 758 of the EAR of the
EAR.
0694-0095................................. Secs. 740.7(a)(3)(ii) and
758.1(d) of the EAR.
0694-0096................................. Part 760, Sec. 762.6(a) of
the EAR.
0694-0097................................. Secs. 752.15(b), 758.6, and
762.2(b) of the EAR.
0694-0102................................. Secs. 754.6 and 754.7 of
the EAR.
0694-0101................................. Sec. 734.4 of the EAR.
0694-0100................................. Supplement No. 1 to part
730.
0607-0001................................. Sec. 758.2(m) of the EAR.
0607-0018................................. Secs. 740.1(d),
740.3(a)(3), 752.7(b), Sec.
752.15(a) of the EAR.
Secs. 754.2(h) and (i),
754.4(c) 758.1, Secs.
758.2(m) and 758.3 of the
EAR.
0607-0152................................. Secs. 740.1(d),
740.3(a)(3), 752.7(b),
Secs. 752.15(a) of the
EAR.
Secs. 754.2(h) and (i),
754.4(c), 758.1, Secs.
758.2(m), and 758.3 of the
EAR.
------------------------------------------------------------------------
Supplement No. 2 to Part 730--Technical Advisory Committees
(a) Purpose. The purpose of this Supplement is to describe the
procedures and criteria for the establishment and operation of
Technical Advisory Committees.
(b) Technical advisory committees. Any producer of articles,
materials, or supplies, including technology, software, and other
information, that are subject to export controls, or are being
considered for such controls because of their significance to the
national security of the United States, may request the Secretary of
Commerce to establish a technical advisory committee, under the
provisions of section 5(h) of the Export Administration Act of 1979,
as amended (EAA) to advise and assist the Department of Commerce and
other appropriate U.S. Government agencies or officials with respect
to questions involving technical matters; worldwide availability and
actual utilization of production technology; licensing procedures
that affect the level of export controls applicable to a clearly
defined grouping of articles, materials, or supplies, including
technology, software, or other information; and exports and
reexports subject to all controls that the United States maintains
including proposed revisions of any such controls. If producers of
articles, materials, or supplies, including technology, software,
and other information, that are subject to export controls because
of their significance to the national security of the United States,
wish a trade association or other representative to submit a written
request on their behalf for the appointment to a TAC, such request
shall be submitted in accordance with paragraph (b)(4) of this
Supplement.
(1) Form and substance of requests. Each request for the
appointment of a TAC shall be submitted in writing to: Assistant
Secretary for Export Administration, P.O. Box 273, Washington, DC
20044.
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) Consideration of request for establishment of a TAC. The
Department of Commerce will review all requests for the
establishment of a TAC to determine if the following criteria are
met:
(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) Requests by a substantial segment of an industry. In
determining whether or not a substantial segment of any industry has
requested the appointment of a TAC, the Department of Commerce will
consider:
(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, BXA will establish and use the TAC requested.
(4) Requests from trade associations or other representatives.
Requests from trade associations or other representatives of U.S.
producers for the establishment of a TAC must comply with the
provisions of paragraphs (b) (1) through (3) of this Supplement. In
addition, in order to assist BXA in determining whether the criteria
described in paragraph (b)(3) of this Supplement have been met, a
trade association or other representative submitting a request for
the establishment of a TAC should include the following information:
(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) Nominations for membership on TACs. When the Department of
Commerce determines that the establishment of a TAC is warranted, it
will request nominations for membership on the committee among the
producers of the items and from any other sources that may be able
to suggest well-qualified nominees.
(6) Selection of industry members of committee. Industry members
of a TAC will be selected by the Department of Commerce from a list
of the nominees who have indicated their availability for service on
the committee. To the extent feasible, the Department of Commerce
will select a committee balanced to represent all significant facets
of the industry involved, taking into consideration such factors as
the size of the firms, their geographical distribution, and their
product lines. No industry representative shall serve on a TAC for
more than four consecutive years. The membership of a member who is
absent from four consecutive meetings shall be terminated.
(7) Government members. Government members of a TAC will be
selected by the Department of Commerce from the agencies having an
interest in the subject matter concerned.
(8) Invitation to serve on committee. Invitations to serve on a
TAC will be sent by letter to the selected nominees.
(9) Election of Chair. The Chair of each TAC shall be elected by
a vote of the majority of the members of the committee present and
voting.
(c) Charter. (1) No TAC established pursuant to this Supplement
shall meet or take any action until an advisory committee charter
has been filed with the Assistant
[[Page 12739]]
Secretary for Export Administration of the Department of Commerce
and with the standing committees of the Senate and of the House of
Representatives having legislative jurisdiction over the Department.
Such charter shall contain the following information:
(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) Meetings. (1) Each TAC established under the provisions of
the EAA and paragraph (b) of this Supplement shall meet at least
once every three months at the call of its Chair unless it is
specifically determined by the Chair, in consultation with other
members of the committee, that a particular meeting is not
necessary.
(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) Public notice. Notice to the public of each meeting of a TAC
will be issued at least 20 days in advance and will be published in
the Federal Register. The notice will include the time and place of
the meeting and the agenda.
(f) Public attendance and participation. (1) Any member of the
public who wishes to do so may file a written statement with any TAC
before or after any meeting of a committee.
(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) Minutes. (1) Detailed minutes of each meeting of each TAC
will be kept and will contain a record of the persons present, a
complete and accurate description of the matters discussed and
conclusions reached, and copies of all reports received, issued, or
approved by the TAC.
(2) The accuracy of all the minutes will be certified to by the
TAC Chair.
(h) Records. (1) Subject to section 552 of Title 5, U.S.C. and
Department of Commerce Administrative Order 205-12, ``Public
Information,'' and ``Public Information'' regulations issued by the
Department of Commerce that are contained in 15 CFR part 4, Subtitle
A, the records, reports, transcripts, minutes, appendices, working
papers, draft, studies, agenda, or other documents that were made
available to or prepared for or by each TAC will be available for
public inspection and copying.
(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
Export Administration, 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) Compensation. If the Department of Commerce deems it
appropriate, a member of a TAC may be reimbursed for travel,
subsistence, and other necessary expenses incurred in connection
with the member's duties.
(j) Scope of advisory committee functions. All TACs are limited
to the functions described in their charters.
(k) Duration of committees. Each TAC will terminate at the end
of two years from the date the committee was established or two
years from the effective date of its most recent extension,
whichever is later. Committees may be continued only for successive
two-year periods by appropriate action taken by the authorized
officer of the Department of Commerce prior to the date on which
such advisory committee would otherwise terminate. TACs may be
extended or terminated only after consultation with the committee.
(l) Miscellaneous. (1) TACs established in accordance with
paragraph (b) of this supplement must conform to the provisions of
the Federal Advisory Committee Act (Pub. L. 92-463), Office of
Management and Budget Circular A-63 (Revision of March 1974),
``Advisory Committee Management,'' Department of Commerce
Administrative Order 205-12, ``Public Information,'' the applicable
provisions of the EAA, and any other applicable Department of
Commerce regulations or procedures affecting the establishment or
operation of advisory committees.
(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.
Supplement No. 3 to Part 730--Other U.S. Government Departments and
Agencies With Export Control Responsibilities
Note: 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).
Defense Services and Defense Articles
* Department of State, Office of Defense Trade Controls, Tel.
(703) 875-6644, Fax: (703) 875-6647.
22 CFR parts 120 through 130.
Drugs, Chemicals and Precursors
Drug Enforcement Administration, International Chemical Control
Unit, Tel. (202) 307-7202, Fax: (202) 307-8570.
21 CFR parts 1311 through 1313.
Controlled Substances: Drug Enforcement Administration,
International Drug Unit, Tel. (202) 307-2414, Fax: (202) 307-8570.
21 CFR 1311 through 1313.
Drugs and Biologics: Food and Drug Administration, Import/
Export, Tel. (301) 594-3150, Fax: (301) 594-0165.
21 U.S.C. 301 et seq.
Investigational drugs permitted: Food and Drug Administration,
International Affairs, Tel. (301) 443-4480, Fax: (301) 443-0235.
21 CFR 312.1106.
Fish and Wildlife Controls; Endangered Species
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.
[[Page 12740]]
Foreign Assets and Transactions Controls
* Department of Treasury, Office of Foreign Assets Control,
Licensing, Tel. (202) 622-2480, Fax: (202) 622-1657.
31 CFR parts 500 through 590.
Medical Devices
Food and Drug Administration, Office of Compliance, Tel. (301)
594-4699, Fax: (301) 594-4715.
21 U.S.C. 301 et seq.
Natural Gas and Electric Power
Department of Energy, Office of Fuels Programs, Tel. (202) 586-
9482, Fax: (202) 586-6050.
10 CFR 205.300 through 205.379 and part 590.
Nuclear Materials and Equipment
* Nuclear Regulatory Commission, Office of International
Programs, Tel. (301) 415-2344, Fax: (301) 415-2395.
10 CFR part 110.
Nuclear Technology; Technical Data for Nuclear Weapons/Special Nuclear
Materials
* Department of Energy, Office of Arms Control and Non
Proliferation, Export Control Division, Tel. (202) 586-2112, Fax:
(202) 586-6977.
10 CFR part 810.
Ocean Freight Forwarders
Federal Maritime Commission, Office of Freight Forwarders, Tel.
(202) 523-5843, Fax: (202) 523-5830.
46 CFR part 510.
Patent Filing Data Sent Abroad
* Department of Commerce, Patent and Trademark Office, Licensing
and Review; Tel. (703) 308-1722, Fax: (703) 305-3603, 3604.
37 CFR part 5.
Prohibition of Movement of American Carriers and Prohibition on
Transportation of Goods Destined for North Korea
Department of Transportation, Office of International Law,
General Counsel, Tel. (202) 366-2972, Fax: (202) 366-9188.
44 CFR part 403.
U.S. Flagged or U.S. Manufactured Vessels Over 1,000 Gross Tons
U.S. Maritime Administration, Division of Vessel Transfer and
Disposal, Tel. (202) 366-5821, Fax: (202) 366-3889.
46 CFR part 221.
PART 732--STEPS FOR USING THE EAR
Sec.
732.1 Steps overview.
732.2 Steps regarding scope of the EAR.
732.3 Steps regarding the ten general prohibitions.
732.4 Steps regarding License Exceptions.
732.5 Steps regarding Shipper's Export Declaration, Destination
Control Statements, record keeping, license applications, and other
requirements.
732.6 Steps for other requirements.
Supplement No. 1--BXA's ``Know Your Customer'' Guidance and Red Flags
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 732.1 Steps overview.
(a)(1) Introduction. In this part, references to the EAR are
references to 15 CFR chapter VII, subchapter C. This part is intended
to help you determine your obligations under the EAR by listing logical
steps in Sec. 732.2 through Sec. 732.5 of this part that you can take
in reviewing these regulations. By cross-references to the relevant
provisions of the EAR, this part describes the suggested steps for you
to determine applicability of the following:
(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) Facts about your transaction. The following five types of facts
determine your obligations under the EAR and will be of help to you in
reviewing these steps:
(1) What is it? What an item is, for export control purposes,
depends on its classification, which is its place on the Commerce
Control List (see part 774 of the EAR).
(2) Where is it going? The country of ultimate destination for an
export or reexport also determines licensing requirements (see parts
738 and 774 of the EAR concerning the Country Chart and the Commerce
Control List).
(3) Who will receive it? The ultimate end-user of your item cannot
be a bad end-user. See General Prohibition Four (Denial Orders) in
Sec. 736.2(b)(4) and parts 744 and 764 of the EAR for a reference to
the list of persons you may not deal with.
(4) What will they do with it? The ultimate end-use of your item
cannot be a bad end-use. See General Prohibition Five (End-Use End-
User) in Sec. 736.2(b)(5) and part 744 of the EAR for general end-use
and end-user restrictions.
(5) What else do they do? Conduct such as contracting, financing,
and freight forwarding in support of a proliferation project (as
described in Sec. 744.6 of the EAR) may prevent you from dealing with
someone.
(c) Are your items and activities subject to the EAR? You should
first determine whether your commodity, software, or technology is
subject to the EAR (see part 734 of the EAR concerning scope), and
Steps 1 through 6 help you do that. For exports from the United States,
only Steps 1 and 2 are relevant. If you already know that your item or
activity is subject to the EAR, you should go on to consider the ten
general prohibitions in part 736 of the EAR. If your item or activity
is not subject to the EAR, you have no obligations under the EAR and
may skip the remaining steps.
(d) Does your item or activity require a license under one or more
of the ten general prohibitions?
(1) Brief summary of the ten general prohibitions. The general
prohibitions are found in part 736 of the EAR and referred to in these
steps. They consist, very briefly, of the following:
(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 de minimis amount of controlled U.S. content.
(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) Controls on items on the Commerce Control List (CCL). If your
item or activity is subject to the EAR, you should determine whether
any one
[[Page 12741]]
or more of the ten general prohibitions require a license for your
export, reexport, or activity. Steps 7 through 11 refer to
classification of your item on the Commerce Control List (CCL) (part
774 of the EAR) and how to use the Country Chart (Supplement No. 1 to
part 738 of the EAR) to determine whether a license is required based
upon the classification of your item. These steps refer to General
Prohibitions One (Exports and Reexports), Two (Parts and Components
Reexports), and Three (Foreign-Produced Direct Product Reexports) for
all countries except: Cuba, Iran, Iraq, Libya, and North Korea. For
these countries, you may skip Steps 7 through 11 and go directly to
Step 12.
(3) Controls on activities. Steps 12 through 18 refer to General
Prohibitions Four through Ten. Those general prohibitions apply to all
items subject to the EAR, not merely those items listed on the CCL in
part 774 of the EAR. For example, they refer to the general
prohibitions for persons denied export privileges, prohibited end-uses
and end-users, embargoed countries (e.g., Cuba, Iran, Iraq, Libya, and
North Korea), prohibited activities of U.S. persons in support of
proliferation of weapons of mass destruction, prohibited unlading of
shipments, compliance with orders, terms and conditions, and activities
when a violation has occurred or is about to occur.
(4) General prohibitions. If none of the ten general prohibitions
applies, you should skip the steps concerning License Exceptions and
for exports from the United States, review Steps 27 through 29
concerning Shipper's Export Declarations to be filed with the U.S.
Customs Service, Destination Control Statements for export control
documents, and recordkeeping requirements.
(e) Is a License Exception available to overcome the license
requirement? If you decide by reviewing the CCL in combination with the
Country Chart that a license is required for your destination, you
should determine whether a License Exception will except you from that
requirement. Steps 20 through 24 help you determine whether a License
Exception is available. Note that generally License Exceptions are not
available to overcome General Prohibitions Four through Ten. However,
selected License Exceptions for embargoed destinations are specified in
part 746 of the EAR and License Exceptions for short supply controls
are specified in part 754 of the EAR. If a License Exception is
available and the export is from the United States, you should review
Steps 26 through 28 concerning Shipper's Export Declarations to be
filed with the U.S. Customs Service, Destination Control Statements for
export control documents and recordkeeping requirements. If a License
Exception is not available, go on to Steps 25 through 29.
(f) How do you apply for a license? If you must file a license
application, you should review the requirements of part 748 of the EAR
as suggested by Step 26. Then you should review Steps 27 through 29
concerning Shipper's Export Declarations to be filed with the U.S.
Customs Service, Destination Control Statements for export control
documents, and recordkeeping requirements.
Sec. 732.2 Steps regarding scope of the EAR.
Steps 1 through 6 aid you in determining the scope of the EAR.
(a) Step 1: Items subject to the exclusive jurisdiction of another
Federal agency. This step is relevant for both exports and reexports.
Determine whether your item is subject to the exclusive jurisdiction of
another Federal Agency as provided in Sec. 734.3 of the EAR.
(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) Step 2: Publicly available technology and software. This step
is relevant for both exports and reexports. Determine if your
technology or software is publicly available as defined and explained
at part 734 of the EAR. Supplement No. 1 to part 734 of the EAR
contains several practical examples describing publicly available
technology and software that is outside the scope of the EAR. The
examples are illustrative, not comprehensive.
(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. You have no obligations under the EAR and need not comply
with the EAR. You may skip the remaining steps.
(2) If your technology or software is not publicly available and
you are exporting from the United States, skip to Step 7 in
Sec. 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) Step 3: Reexport of U.S.-origin items. This step is appropriate
only for reexporters. For an item in a foreign country, you should
determine whether the item is of U.S. origin. If it is of U.S.-origin,
skip to Step 7 in Sec. 732.3(b) of this part. If it is not of U.S.
origin, then proceed to Step 4 in paragraph (d) of this section.
(d) Step 4: Foreign-made items incorporating less than the de
minimis level of U.S. parts, components, and materials. This step is
appropriate only for items that are made outside the United States.
(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 Sec. 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 BXA 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
de minimis level described in Sec. 734.4 of the EAR, then the foreign-
made item is not subject to the EAR by reason of the parts and
components rule, the classification of a foreign-made item is
irrelevant in determining the scope of the EAR, and you should skip
Step 4 and go on to consider Step 5 regarding the foreign-produced
direct product rule.
(4) If controlled parts, components, or materials are incorporated
and are above the de minimis level, then you should go on to Step 5.
(e) Step 5: Foreign-made items incorporating more than the de
minimis level of U.S. parts, components, or materials. This step is
appropriate only for foreign-made items incorporating certain U.S.
parts. If the incorporated U.S. parts exceed the relevant de minimis
level, then your export from abroad is subject to the EAR. You then
should skip to Step 7 at Sec. 732.3 of this part and consider the steps
regarding all other general prohibitions, License Exceptions, and other
requirements.
[[Page 12742]]
(f) Step 6: Foreign-made items produced with certain U.S.
technology for export to specified destinations. This step is
appropriate for foreign-made items in foreign countries.
(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) (Sec. 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) Country scope of prohibition. Your export or reexport
destination for the direct product is Cuba, North Korea, Libya, or a
destination in Country Group D:1 (see Supplement No. 1 to part 740 of
the EAR) (reexports of foreign-produced direct products exported to
other destinations are not subject to General Prohibition Three);
(ii) Scope of technology or software used to create direct products
subject to the prohibition. Technology or software that was used to
create the foreign-produced direct product, and such technology or
software that was subject to the EAR and required a written assurance
as a supporting document for a license or as a precondition for the use
of License Exception TSR at Sec. 740.3(d) of the EAR (reexports of
foreign-produced direct products created with other technology and
software are not subject to General Prohibition Three); and
(iii) Scope of direct products subject to the prohibition. The
foreign-produced direct products are subject to national security
controls as designated on the proper ECCN of the Commerce Control List
in part 774 of the EAR (reexports of foreign-produced direct products
not subject to national security controls are not subject to General
Prohibition Three).
(2) License Exceptions. Each License Exception described in part
740 of the EAR overcomes this General Prohibition Three if all terms
and conditions of a given License Exception are met by the exporter or
reexporter.
(3) Subject to the EAR. If your item is captured by the foreign-
produced direct product control at General Prohibition Three, then your
export from abroad is subject to the EAR. You should next consider the
steps regarding all other general prohibitions, License Exceptions, and
other requirements. If your item is not captured by General Prohibition
Three, then your export from abroad is not subject to the EAR. You have
completed the steps necessary to determine whether your transaction is
subject to the EAR, and you may skip the remaining steps. Note that in
summary, items in foreign countries are subject to the EAR when they
are:
(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 unless publicly available.)
Sec. 732.3 Steps regarding the ten general prohibitions.
(a) Introduction. If your item or activity is subject to the scope
of the EAR, you should then consider each of the ten general
prohibitions listed in part 736 of the EAR. General Prohibitions One
((Exports and Reexports), Two (Parts and Components Reexports), and
Three (Foreign-Produced Direct Product Reexports) (Sec. 736.2(b) (1),
(2), and (3) of the EAR) are product controls that are shaped and
limited by parameters specified on the CCL and Country Chart. General
Prohibitions Four through Ten are prohibitions on certain activities
that are not allowed without authorization from BXA, and these
prohibitions apply to all items subject to the EAR unless otherwise
specified (Sec. 736.2(b) (4) through (10) of the EAR).
(b) Step 7: Classification. (1) You should classify your items in
the relevant entry on the CCL, and you may do so on your own without
the assistance of BXA. You are responsible for doing so correctly, and
your failure to correctly classify your items does not relieve you of
the obligation to obtain a license when one is required by the EAR.
(2) You have a right to request the applicable classification of
your item from BXA, and BXA has a duty to provide that classification
to you. For further information on how to obtain classification
assistance from BXA, 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 any CCL entry and appears at the end of each
Category on the CCL.
(c) Step 8: Country of ultimate destination. You should determine
the country of ultimate destination. The country of destination
determines the applicability of several general prohibitions, License
Exceptions, and other requirements. Note that part 754 of the EAR
concerning short supply controls is self-contained and is the only
location in the EAR that contains both the prohibitions and exceptions
applicable to short supply controls.
(d) Step 9: Reason for control and the Country Chart. (1) Reason
for control and column identifier within the Export Control
Classification Number (ECCN). Once you have determined that your item
is controlled by a specific ECCN, you must use information contained in
the ``License Requirements'' section of that ECCN in combination with
the Country Chart to decide whether a license is required under General
Prohibitions One, Two, or Three to a particular destination. The CCL
and the Country Chart are taken together to define these license
requirements. The applicable ECCN will indicate the reason or reasons
for control for items within that ECCN. For example, ECCN 6A007 is
controlled for national security, missile technology, and anti-
terrorism reasons.
(2) Reason for control within the Country Chart. With each of the
applicable Country Chart column identifiers noted in the correct ECCN,
turn to the Country Chart. Locate the correct Country Chart column
identifier on the horizontal axis, and determine whether an ``X'' is
marked in the cell next to the destination in question. Consult
Sec. 738.4 of the EAR for comprehensive instructions on using the
Country Chart and a detailed example.
(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 Sec. 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
[[Page 12743]]
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) License requirements not on the Country Chart. There are two
instances where the Country Chart cannot be used to determine if a
license is required. Items controlled for short supply reasons are not
governed by the Country Chart. Part 754 of the EAR contains license
requirements and License Exceptions for items subject to short supply
controls. A limited number of ECCNs contained on the CCL do not
identify a Country Chart column identifier. In these instances, the
ECCN states whether a license is required and for which destinations.
See Sec. 738.3(a) of the EAR for a list of the ECCNs for which you do
not need to consult the Country Chart to determine licensing
requirements.
(4) Destinations subject to embargo provisions. The Country Chart
does not apply to Cuba, Iran, Iraq, Libya, and North Korea; and for
those countries you should review the embargo provisions at part 746 of
the EAR and may skip this step concerning the Country Chart. For
Angola, Bosnia-Herzegovina, Croatia, Rwanda, and Serbia and Montenegro
the Country Chart provides for certain license requirements, and part
746 of the EAR provides additional requirements.
(5) Items subject to the EAR but not on the CCL. Items subject to
the EAR that are not on the CCL are properly classified EAR99. For such
items, you may skip this step and proceed directly with Step 12 in
paragraph (g) of this section.
(e) Step 10: Foreign-made items incorporating U.S.-origin items and
the de minimis rule. (1) Parts and components rule. The following
considerations are appropriate for items abroad and are the same steps
necessary to determine whether a foreign-made item incorporating U.S.
parts, components, or materials is subject to the EAR. If your foreign-
made item is described in an entry on the CCL and the Country Chart
requires a license to your export or reexport destination, you should
determine whether the controlled U.S.-origin commodities, software, or
technology incorporated into the foreign-made item exceeds the de
minimis level applicable to the ultimate destination of the foreign-
made item, as follows:
(i) A 10% de minimis level to embargoed and terrorist-supporting
countries; or
(ii) A 25% de minimis level to all other countries.
(2) Guidance for calculations. For guidance on how to calculate the
U.S.-controlled content, refer to Supplement No. 2 to part 734 of the
EAR. Note that certain rules issued by the Office of Foreign Assets
Control, certain exports from abroad by U.S.-owned or controlled
entities may be prohibited notwithstanding the de minimis provisions of
the EAR. In addition, the de minimis exclusions from the parts and
components rule do not relieve U.S. persons of the obligation to
refrain from supporting the proliferation of weapons of mass-
destruction and missiles as provided in General Prohibition Seven (U.S.
Person Proliferation Activity) described in Sec. 736.2(b)(7) of the
EAR.
(f) Step 11: Foreign-produced direct product. The following
considerations are appropriate for items abroad and are the same
considerations necessary to determine whether a foreign-produced direct
product is subject to the EAR under Step 6 in Sec. 732.2(f) of this
part.
(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) (Sec. 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) Country scope of prohibition. Your export or reexport
destination for the direct product is Cuba, Libya, North Korea, or a
destination in Country Group D:1 (see Supplement No. 1 to part 740 of
the EAR) (reexports of foreign-produced direct products exported to
other destinations are not subject to General Prohibition Three
described in Sec. 736.2(b)(3) of the EAR);
(ii) Scope of technology or software used to create direct products
subject to the prohibition. Technology or software that was used to
create the foreign-produced direct product, and such technology or
software that was subject to the EAR and required a written assurance
as a supporting document for a license or as a precondition for the use
of License Exception TSR described Sec. 740.19 of the EAR (reexports of
foreign-produced direct products created with other technology and
software are not subject to General Prohibition Three); and
(iii) Scope of direct products subject to the prohibition. The
foreign-produced direct products are controlled for national security
reasons indicated in an ECCN on the CCL (reexports of foreign-produced
direct products not subject to national security controls are not
subject to General Prohibition Three).
(2) License Exceptions. Each License Exception described in part
740 of the EAR overcomes General Prohibition Three (Foreign-Produced
Direct Product Reexports) if all terms and conditions of a given
License Exception are met by the exporter or reexporter.
(g) Step 12: Persons denied export privileges. (1) Determine
whether your transferee, ultimate end-user, any intermediate consignee,
or any other party to a transaction is a person denied export
privileges. (See part 764 of the EAR). While it is not a violation of
General Prohibition Four (Denial Orders) (Sec. 736.2(b)(4) of the EAR)
to fail to check the Denied Persons List prior to a transfer, it is
nonetheless a violation of the EAR to engage in any activity that
violates the terms or conditions of a denial order. General Prohibition
Four (Denial Orders) applies to all items subject to the EAR, i.e. both
items on the CCL and within EAR99.
(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 BXA,
something that is rarely granted.
(h) STEP 13: Prohibited end-uses and end-users. (1) Review the end-
uses and end-users prohibited under General Prohibition Five (End-Use
and End-User) (Sec. 736.2(b)(5) of the EAR) described in part 744 of
the EAR. Part 744 of the EAR contains all the end-use and end-user
license requirements, and those are in addition to the license
requirements under General Prohibitions One (Exports and Reexports),
Two (Parts and Components Reexports), and Three (Foreign-produced
Direct Product Reexports). Unless otherwise indicated, the license
requirements of General Prohibition Five (End-Use and End-User)
described in part 744 of the EAR apply to all items subject to the EAR,
i.e. both items on the CCL and within EAR99. Moreover, the requirements
of General Prohibition Five (End-Use and End-User) are in addition to
various end-use and end-user limitations placed on certain License
Exceptions.
(2) There are no License Exceptions to General Prohibition Five
(End-Use and End-User) (Sec. 736.2(b)(5) of the EAR) described in part
740 of the EAR.
(i) Step 14: Embargoed countries and special destinations. If your
destination for any item is Bosnia-Herzegovina,
[[Page 12744]]
Croatia, Cuba, Iran, Iraq, Libya, North Korea, Rwanda, or Serbia and
Montenegro, you must consider the requirements of part 746 of the EAR.
Unless otherwise indicated, General Prohibition Six (Embargo) applies
to all items subject to the EAR, i.e. both items on the CCL and within
EAR99. You may not make an export or reexport contrary to the
provisions of part 746 of the EAR without a license unless:
(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) (Sec. 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) Step 15: Proliferation activity of U.S. persons unrelated to
exports and reexports. (1) Review the scope of activity prohibited by
General Prohibition Seven (U.S. Person Proliferation Activity)
(Sec. 736.2(b)(7) of the EAR) as that activity is described in
Sec. 744.6 of the EAR. Keep in mind that such activity is not limited
to exports and reexports and is not limited to items subject to General
Prohibition One (Exports and Reexports), Two (Parts and Components
Reexports), and Three (Foreign-Produced Direct Product Reexports).
Moreover, such activity extends to services and dealing in wholly
foreign-origin items in support of the specified proliferation activity
and is not limited to items listed on the CCL or included in EAR99.
(2) Review the definition of U.S. Person in part 744 of the EAR.
(k) Step 16: In-transit. Shippers and operators of vessels or
aircraft should review General Prohibition Eight (In-Transit) to
determine the countries in which you may not unladen or ship certain
items in-transit. General Prohibition Eight applies to all items
subject to the EAR, i.e. both items on the CCL and within EAR99.
(l) Step 17: Review orders, terms, and conditions. Review the
orders, terms, and conditions applicable to your transaction. General
Prohibition Nine (Orders, Terms, and Conditions) prohibits the
violation of any orders, terms, and conditions imposed under the EAR.
Terms and conditions are frequently contained in licenses. In addition,
the ten general prohibitions (part 736 of the EAR) and the License
Exceptions (part 740 of the EAR) impose terms and conditions or
limitations on your proposed transactions and use of License
Exceptions. A given license or License Exception may not be used unless
each relevant term or condition is met.
(m) Step 18: Review the ``Know Your Customer'' Guidance and General
Prohibition Ten (Knowledge Violation to Occur). License requirements
under the EAR are determined solely by the classification, end-use,
end-user, ultimate destination, and conduct of U.S. persons. Supplement
No. 1 to part 732 of the EAR is intended to provide helpful guidance
regarding the process for the evaluation of information about
customers, end-uses, and end-users. General Prohibition Ten (Knowledge
Violation to Occur) prohibits anyone from proceeding with a transaction
with knowledge that a violation of the EAR has occurred or is about to
occur. It also prohibits related shipping, financing, and other
services. General Prohibition Ten applies to all items subject to the
EAR, i.e. both items on the CCL and within EAR99.
(n) Step 19: Complete the review of the general prohibitions. After
completion of Steps described in this section and review of all ten
general prohibitions in part 736 of the EAR, including cross-referenced
regulations in the EAR, you will know which, if any, of the ten general
prohibitions of the EAR apply to you and your contemplated transaction
or activity.
(1) If none of the ten general prohibitions is applicable to your
export from the United States, no license from BXA is required, you do
not need to qualify for a License Exception under part 740 of the EAR.
You should skip the Steps in Sec. 732.4 of this part regarding License
Exceptions and proceed directly to the Steps in Sec. 732.5 of this part
regarding recordkeeping, clearing the U.S. Customs Service with the
appropriate Shipper's Export Declaration, 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.
Sec. 732.4 Steps regarding License Exceptions.
(a) Introduction to Steps for License Exceptions. If your export or
reexport is subject to the EAR and is subject to General Prohibitions
One (Exports and Reexports), Two (Parts and Components Reexports), or
Three (Foreign-Produced Direct Product Reexports), consider the steps
listed in paragraph (b) of this section. If your export or reexport is
subject to General Prohibitions Four (Denial Orders), Seven (U.S.
Person Proliferation Activity), Eight (In-Transit), Nine (Orders,
Terms, and Conditions), or Ten (Knowledge Violation to Occur), there
are no License Exceptions available for your export or reexport. If
your export is subject to General Prohibition Five (End-Use End-User),
consult part 744 of the EAR. If your export or reexport is subject to
General Prohibition Six (Embargo), consult part 746 of the EAR for
applicable License Exceptions.
(b) Steps for License Exceptions. (1) Step 20: Applicability of
General Prohibitions. Determine whether any one or more of the general
prohibitions described in Sec. 736.2(b) of the EAR apply to your export
or reexport. If no general prohibition applies to your export or
reexport, then you may proceed with your export or reexport and need
not review part 740 of the EAR regarding License Exceptions. You are
reminded of your recordkeeping obligations related to the clearance of
the U.S. Customs Service provided in parts 762 and 758 of the EAR.
(2) Step 21: Applicability of restrictions on all License
Exceptions. Determine whether any one or more of the restrictions in
Sec. 740.2 of the EAR applies to your export or reexport. If any one or
more of these restrictions apply, there are no License Exceptions
available to you, and you must either obtain a license or refrain from
the export or reexport.
(3) Step 22: Terms and conditions of the License Exceptions. (i) If
none of the restrictions in Sec. 740.2 of the EAR applies, then review
each of the License Exceptions to determine whether any one of them
authorizes your export or reexport. Eligibility for License Exceptions
is based on the item, the country of ultimate destination, the end-use,
and the end-user, along with any special conditions imposed within a
specific License Exception.
(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
[[Page 12745]]
Exception until you have determined that no License Exception is
available.
(iii) License Exception groupings TMP, RPL, BAG, AVS, GOV, and TSU
authorize exports notwithstanding the provisions of the CCL. License
Exceptions in the list-based grouping (LST) 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.
(4) Step 23: Scope of License Exceptions. Some License Exceptions
are limited by country or by type of item.
(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) Step 24: Compliance with all terms and conditions. If a License
Exception is available, you may proceed with your export or reexport.
However, you must meet all the terms and conditions required by the
License Exception that you determined authorized your export or
reexport. You must also consult part 758 and 762 of the EAR to
determine your recordkeeping and documentation requirements.
(6) Step 25: License requirements. If no License Exception is
available, then you must either obtain a license before proceeding with
your export or reexport or you must refrain from the proposed export or
reexport.
(7) Step 26: License applications. If you are going to file a
license application with BXA, you should first review the requirements
at part 748 of the EAR. Exporters, reexporters, and exporters from
abroad should review the instructions concerning applications and
required support documents prior to submitting an application for a
license.
Sec. 732.5 Steps regarding Shipper's Export Declaration, Destination
Control Statements, record keeping, license applications, and other
requirements.
(a) Step 27--Shipper's Export Declaration. You should review
Sec. 758.3 of the EAR to determine what notations you must enter on the
Shipper's Export Declaration (SED). These steps should be reviewed by
exporters. Reexporters and firms exporting from abroad may skip Steps
27 through 29 and proceed directly to Sec. 732.6 of this part.
(1) NLR. The term ``NLR'' represents exports of listed items when
no license is required. Such exports do not require that you qualify
for a License Exception. The symbol ``NLR'' is required on the SED
under two circumstances. First, NLR is the correct symbol when
exporting an item subject to the EAR not listed on the CCL. Such items
are classified EAR99. Secondly, certain items are listed on the CCL but
do not require a license to all destinations under General Prohibitions
One (Exports and Reexports in the Form Received), Two (Parts and
Components Reexports), or Three (Foreign-Produced Direct Product
Reexports) (Sec. 736.2 (b)(1), (b)(2), or (b)(3) of the EAR). Such
items do not have an ``X'' in the appropriate cell on the Country
Chart. If General Prohibitions Four through Ten (Sec. 736.2 (b)(4) of
the EAR) through (b)(10) of the EAR) also do not apply, you must clear
exports of such items by entering the symbol ``NLR'' in the appropriate
place on the SED.
(2) License Exception group symbol. You must enter on any required
SED the letter code (e.g., LST, TMP) of the group of License Exceptions
under which you are exporting. In the case of License Exceptions
grouped under LST, the ECCN of the item being exported must also be
entered when an SED is required. Please refer to Sec. 758.3 of the EAR
for detailed information on use of SEDs.
(3) License number. If you are exporting under a license, enter the
license number on the SED as required by Sec. 758.3 of the EAR.
(b) Step 28: Destination Control Statement. You are required to
enter an appropriate Destination Control Statement (DCS) on commercial
documents in accordance with the DCS requirements of Sec. 758.6 of the
EAR. Exporters should review Sec. 758.6 of the EAR and use the DCS as
required. Reexporters and exporters from abroad should review
Sec. 752.6 for DCS requirements when using a Special Comprehensive
License. Otherwise, DCS requirements do not apply to reexports and
exports from abroad.
(c) Step 29: Recordkeeping. Records of transactions involving
exports under any license or License Exception must be maintained in
accordance with the recordkeeping requirements of part 762 of the EAR.
Sec. 732.6 Steps for other requirements.
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 Sec. 758.2 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 subject to the EAR are delivered to the destination to which
they are licensed or authorized by a License Exception or some other
provision of the regulations in Sec. 758.4 through Sec. 758.6 of the
EAR.
(c) Duty of carriers to return or unload shipments at the direction
of U.S. Government officials (see Sec. 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.
Supplement No. 1--BXA's ``Know Your Customer'' Guidance and Red
Flags
``Know Your Customer'' Guidance
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) BXA 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) Decide whether there are ``red flags''. Take into account
any abnormal circumstances in a transaction that indicate that the
export may be destined for an inappropriate end-use, end-user, or
destination. Such circumstances are referred to as ``red flags''.
Included among examples
[[Page 12746]]
of red flags are orders for items that are inconsistent with the
needs of the purchaser, a customer declining installation and
testing when included in the sales price or when normally requested,
or requests for equipment configurations that are incompatible with
the stated destination (e.g., 120 volts in a country with 220
volts). Commerce has developed lists of such red flags that are not
all-inclusive but are intended to illustrate the types of
circumstances that should cause reasonable suspicion that a
transaction will violate the EAR.
(2) If there are ``red flags'', inquire. If there are no ``red
flags'' in the information that comes to your firm, you should be
able to proceed with a transaction in reliance on information you
have received. That is, absent ``red flags'' (or an express
requirement in the EAR), there is no affirmative duty upon exporters
to inquire, verify, or otherwise ``go behind'' the customer's
representations. However, when ``red flags'' are raised in
information that comes to your firm, you have a duty to check out
the suspicious circumstances and inquire about the end-use, end-
user, or ultimate country of destination. The duty to check out
``red flags'' is not confined to the use of License Exceptions
affected by the ``know'' or ``reason to know'' language in the EAR.
Applicants for licenses are required by part 748 of the EAR to
obtain documentary evidence concerning the transaction, and
misrepresentation or concealment of material facts is prohibited,
both in the licensing process and in all export control documents.
You can rely upon representations from your customer and repeat them
in the documents you file unless red flags oblige you to take
verification steps.
(3) Do not self-blind. Do not cut off the flow of information
that comes to your firm in the normal course of business. For
example, do not instruct the sales force to tell potential customers
to refrain from discussing the actual end-use, end-user, and
ultimate country of destination for the product your firm is seeking
to sell. Do not put on blinders that prevent the learning of
relevant information. An affirmative policy of steps to avoid
``bad'' information would not insulate a company from liability, and
it would usually be considered an aggravating factor in an
enforcement proceeding.
(4) Employees need to know how to handle ``red flags''.
Knowledge possessed by an employee of a company can be imputed to a
firm so as to make it liable for a violation. This makes it
important for firms to establish clear policies and effective
compliance procedures to ensure that such knowledge about
transactions can be evaluated by responsible senior officials.
Failure to do so could be regarded as a form of self-blinding.
(5) Reevaluate all the information after the inquiry. The
purpose of this inquiry and reevaluation is to determine whether the
``red flags'' can be explained or justified. If they can, you may
proceed with the transaction. If the ``red flags'' cannot be
explained or justified and you proceed, you run the risk of having
had ``knowledge'' that would make your action a violation of the
EAR.
(6) Refrain from the transaction or advise BXA and wait. If you
continue to have reasons for concern after your inquiry, then you
should either refrain from the transaction or submit all the
relevant information to BXA in the form of an application for a
validated license or in such other form as BXA may specify.
(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. BXA 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.
Red Flags
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 which the product is being shipped. For example,
semiconductor manufacturing equipment would be of little use in a
country without an electronics industry.
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.
PART 734--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS
Sec.
734.1 Introduction.
734.2 Important EAR terms and principles.
734.3 Items subject to the EAR.
734.4 De minimis U.S. content.
734.5 Activities of U.S. and foreign persons subject to the EAR.
734.6 Assistance available from BXA for determining licensing and
other requirements.
734.7 Published information and software.
734.8 Information resulting from fundamental research.
734.9 Educational information.
734.10 Patent applications.
734.11 Government-sponsored research covered by contract controls.
734.12 Effect on foreign laws and regulations.
Supplement No. 1 to Part 734--Questions and Answers--Technology and
Software Subject to the EAR
Supplement No. 2 to Part 734--Calculation of Values for DE MINIMIS
Rules
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 734.1 Introduction.
(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 your item or activity is
not 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.
Sec. 734.2 Important EAR terms and principles.
(a) Subject to the EAR--Definition. (1) ``Subject to the EAR'' is a
term used in the EAR to describe those items and
[[Page 12747]]
activities over which BXA exercises regulatory jurisdiction under the
EAR. Conversely, items and activities that are not subject to the EAR
are outside the regulatory jurisdiction of the EAR and are not affected
by these regulations. The items and activities subject to the EAR are
described in Sec. 734.2 through Sec. 734.5 of this part. You should
review the Commerce Control List (CCL) and any applicable parts of the
EAR to determine whether an item or activity is subject to the EAR.
However, if you need help in determining whether an item or activity is
subject to the EAR, see Sec. 734.6 of this part. Publicly available
technology and software not subject to the EAR are described in
Sec. 734.7 through Sec. 734.11 and Supplement No. 1 to this part.
(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 BXA 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) Export and reexport. (1) Definition of export. ``Export'' means
an actual shipment or transmission of items subject to the EAR out of
the United States; or release of technology or software subject to the
EAR to a foreign national in the United States, as described in
paragraph (b)(2)(ii) of this section. See part 772 of the EAR for the
definition that applies to exports of satellites subject to the EAR.
(2) Export of technology or software. ``Export'' of technology or
software includes:
(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
Sec. 736.2(b)(10) of the EAR.
(3) Definition of ``release'' of technology or software. Technology
or software is ``released'' for export through:
(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) Definition of reexport. ``Reexport'' means an actual shipment
or transmission of items subject to the EAR from one foreign country to
another foreign country; or release of technology or software subject
to the EAR to a foreign national outside the United States, as
described in paragraph (b)(5) of this section. See part 772 of the EAR
for the definition that applies to reexports of satellites subject to
the EAR.
(5) Reexport of technology or software. Any release of technology
or source code subject to the EAR to a foreign national of another
country is a deemed reexport to the home country or countries of the
foreign national. However, this deemed reexport definition does not
apply to persons lawfully admitted for permanent residence. The term
``release'' is defined in paragraph (b)(3) of this section. Note that
the release of any item to any party with knowledge or reason to know a
violation is about to occur is prohibited by Sec. 736.2(b)(10) of the
EAR.
(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.
Sec. 734.3 Items subject to the EAR.
(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
incorporated abroad into foreign-made products, U.S. origin software
commingled with foreign software, and U.S. origin technology commingled
with foreign technology, in quantities exceeding de minimis levels as
described in Sec. 734.4 and Supplement No. 2 of this part;
(4) Certain foreign-made direct products of U.S. origin technology
or software, as described in Sec. 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 Sec. 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) Department of State. The International Traffic in Arms
Regulations (22 CFR part 121) administered by the Office of Defense
Trade Controls relate to defense articles and defense services on the
U.S. Munitions List. Section 38 of the Arms Export Control Act (22
U.S.C. 2778).
(ii) Treasury Department, Office of Foreign Assets Control (OFAC).
Regulations administered by OFAC implement broad controls and embargo
transactions with certain foreign countries. These regulations include
controls on exports and reexports to
[[Page 12748]]
certain countries (31 CFR chapter V). Trading with the Enemy Act (50
U.S.C. app. section 1 et seq.), and International Emergency Economic
Powers Act (50 U.S.C. 1701, et seq.)
(iii) U.S. Nuclear Regulatory Commission (NRC). Regulations
administered by NRC control the export and reexport of commodities
related to nuclear reactor vessels (10 CFR part 110). Atomic Energy Act
of 1954, as amended (42 U.S.C. part 2011 et seq.).
(iv) Department of Energy (DOE). Regulations administered by DOE
control the export and reexport of technology related to the production
of special nuclear materials (10 CFR part 810). Atomic Energy Act of
1954, as amended (42 U.S.C. section 2011 et seq.).
(v) Patent and Trademark Office (PTO). Regulations administered by
PTO provide for the export to a foreign country of unclassified
technology in the form of a patent application or an amendment,
modification, or supplement thereto or division thereof (37 CFR part
5). BXA has delegated authority under the Export Administration Act to
the PTO to approve exports and reexports of such technology which is
subject to the EAR. Exports and reexports of such technology not
approved under PTO regulations must comply with the EAR.
(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 whole or in
part, the content of any of the above; exposed and developed motion
picture film and soundtrack; and advertising printed matter exclusively
related thereto.
(3) Publicly available technology and software that:
(i) Are already published or will be published as described in
Sec. 734.7 of this part;
(ii) Arise during, or result from, fundamental research, as
described in Sec. 734.8 of this part;
(iii) Are educational, as described in Sec. 734.9 of this part; or
(iv) Are included in certain patent applications, as described in
Sec. 734.10 of this part.
(4) Foreign made items that have de minimis U.S. content based on
the principles described in Sec. 734.4 of this part.
(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 not listed
on the CCL are designated as ``EAR99.''
Sec. 734.4 De minimis U.S. content.
(a) There is no de minimis level for the export from a foreign
country of a foreign-made computer exceeding 7000 MTOPS containing
U.S.-origin controlled semiconductors (other than memory circuits)
classified under ECCN 3A001 or high speed interconnect devices (ECCN
4A003.g) to Computer Tier 3 and 4 countries described in Sec. 742.12 of
the EAR.
(b) Except as provided in paragraph (a) of this section for certain
computers, for embargoed countries in part 746 of the EAR, and for
countries named as terrorist-supporting countries in part 744 of the
EAR, the following are not subject to 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.
(c) Except as provided in paragraph (a) of this section for certain
computers, for all other countries not included in paragraph (b) of
this section, the following are not subject to the EAR:
(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.
(d) For purposes of determining de minimis levels, technology and
source code used to design or produce foreign-made commodities or
software are not considered to be incorporated into such foreign-made
commodities or software. Commodities subject only to short supply
controls are not included in calculating U.S. content.
(e) You are responsible for making the necessary calculations to
determine whether the de minimis provisions apply to your situation.
See Supplement No. 2 to part 734 for guidance regarding calculation of
U.S. controlled content.
(f) See Sec. 770.3 of the EAR for principles that apply to
commingled U.S.-origin technology and software.
Sec. 734.5 Activities of U.S. and foreign persons subject to the EAR.
The following kinds of activities are subject to the EAR:
(a) Certain activities of U.S. persons related to the proliferation
of chemical or biological weapons or of missile technology as described
in Sec. 744.6 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.
Sec. 734.6 Assistance available from BXA for determining licensing and
other requirements.
(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 BXA 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, Office 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, BXA is the
only agency that has the responsibility for determining whether an item
or activity
[[Page 12749]]
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 BXA licensing or other
requirements you may ask BXA for help by following the procedures
described in Sec. 748.3 of the EAR.
Sec. 734.7 Published information and software.
(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 attend and attendees
are permitted to take notes or otherwise make a personal record (not
necessarily a recording) of the proceedings and presentations.
(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).
Sec. 734.8 Information resulting from fundamental research.
(a) Fundamental research. Paragraphs (b) through (d) of this
section and Sec. 734.11 of this part provide specific rules that will
be used to determine whether research in particular institutional
contexts qualifies as ``fundamental research''. The intent behind these
rules is to identify as ``fundamental research'' basic and applied
research in science and engineering, where the resulting information is
ordinarily published and shared broadly within the scientific
community. Such research can be distinguished from proprietary research
and from industrial development, design, production, and product
utilization, the results of which ordinarily are restricted for
proprietary reasons or specific national security reasons as defined in
Sec. 732.10 of this part. (See Supplement No. 1 to this part, Question
D(8)).
(b) University based research. (1) Research conducted by
scientists, engineers, or students at a university normally will be
considered fundamental research, as described in paragraphs (b) (2)
through (6) of this section. (``University'' means any accredited
institution of higher education located in the United States.)
(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 Sec. 734.11 of this part will apply if a
university or its researchers accept specific national security
controls (as defined in Sec. 732.11 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) Research based at Federal agencies or FFRDCs. Research
conducted by scientists or engineers working for a Federal agency or a
Federally Funded Research and Development Center (FFRDC) may be
designated as ``fundamental research'' within any appropriate system
devised by the agency or the FFRDC to control the release of
information by such scientists and engineers. (See Supplement No. 1 to
this part, Questions D(8) and D(11).)
(d) Corporate research. (1) Research conducted by scientists or
engineers working for a business entity will be considered
``fundamental research'' at such time and to the extent that the
researchers are free to make scientific and technical information
resulting from the research publicly available without restriction or
delay based on proprietary concerns or specific national security
controls as defined in Sec. 734.11 of this part.
(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
[[Page 12750]]
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) Research based elsewhere. Research conducted by scientists or
engineers who are not working for any of the institutions described in
paragraphs (b) through (d) of this section will be treated as corporate
research, as described in paragraph (d) of this section. (See
Supplement No. 1 to this part, Question D(8).)
Sec. 734.9 Educational information.
``Educational information'' referred to in Sec. 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 Sec. 734.8(b) of
this part. (See Supplement No. 1 to this part, Question C(1) through
C(6).)
Sec. 734.10 Patent applications.
The information referred to in Sec. 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; 1 or
\1\ Regulations issued by the Patent and Trademark Office in 37
CFR part 5 provide for the export to a foreign country of
unclassified technical data in the form of a patent application or
an amendment, modification, or supplement thereto or division
thereof.
---------------------------------------------------------------------------
(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.
Sec. 734.11 Government-sponsored research covered by contract
controls.
(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, Sec. 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).)
Sec. 734.12 Effect on foreign laws and regulations.
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.
Supplement No. 1 to Part 734--Questions and Answers--Technology and
Software Subject to 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 BXA
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. This Supplement is
divided into nine sections according to topic as follows:
Section A: Publication of technology and exports and reexports
of technology that has been or will be published.
Section B: Release of technology at conferences.
Section C: Educational instruction.
Section D: Research, correspondence, and informal scientific
exchanges.
Section E: Federal contract controls.
Section F: Commercial consulting.
Section G: Software.
Section H: Availability in a public library.
Section I: Miscellaneous.
Section A: Publication
Question A(1): I plan to publish in a foreign journal a
scientific paper describing the results of my research, which is in
an area listed in the EAR as requiring a license to all countries
except Canada. Do I need a license to send a copy to my publisher
abroad?
Answer: No. This export transaction is not subject to the EAR.
The EAR do not cover technology that is already publicly available,
as well as technology that is made public by the transaction in
question (Secs. 734.3 and 734.7 of this part). Your research results
would be made public by the planned publication. You would not need
a license.
Question A(2): Would the answer differ depending on where I work
or where I performed the research?
Answer: No. Of course, the result would be different if your
employer or another sponsor of your research imposed restrictions on
its publication (Sec. 734.8 of this part).
Question (A)3: Would I need a license to send the paper to the
editors of a foreign journal for review to determine whether it will
be accepted for publication?
Answer: No. This export transaction is not subject to the EAR
because you are submitting the paper to the editors with the
intention that the paper will be published if favorably received
(Sec. 734.7(a)(4)(iii) of this part).
Question A(4): The research on which I will be reporting in my
paper is supported by a grant from the Department of Energy (DOE).
The grant requires prepublication clearance by DOE. Does that make
any difference under the Export Administration Regulations?
Answer: No, the transaction is not subject to the EAR. But if
you published in violation of any Department of Energy controls you
have accepted in the grant, you may be subject to appropriate
administrative, civil, or criminal sanctions under other laws.
Question A(5): We provide consulting services on the design,
layout, and construction of integrated circuit plants and production
lines. A major part of our business is the publication for sale to
clients of detailed handbooks and reference manuals on key aspects
on the design and manufacturing processes. A typical cost of
publishing such a handbook and manual might be $500; the typical
sales price is about $15,000. Is the publication and sale of such
handbooks or manuals subject to the EAR?
Answer: Yes. The price is above the cost of reproduction and
distribution (Sec. 734.7(a)(1) of this part). Thus, you would need
to obtain a license or qualify for a License Exception before you
could export or reexport any of these handbooks or manuals.
Question A(6): My Ph.D. thesis is on technology, listed in the
EAR as requiring a license to all destinations except Canada, which
has never been published for general distribution. However, the
thesis is available at the institution from which I took the degree.
Do I need a license to send another copy to a colleague overseas?
Answer: That may depend on where in the institution it is
available. If it is not readily available in the university library
(e.g., by filing in open stacks with a reference in the
[[Page 12751]]
catalog), it is not ``publicly available'' and the export or
reexport would be subject to the EAR on that ground. The export or
reexport would not be subject to the EAR if your Ph.D. research
qualified as ``fundamental research'' under Sec. 734.8 of this part.
If not, however, you will need to obtain a license or qualify for a
License Exception before you can send a copy out of the country.
Question A(7): We sell electronically recorded information,
including software and databases, at wholesale and retail. Our
products are available by mail order to any member of the public,
though intended for specialists in various fields. They are priced
to maximize sales to persons in those fields. Do we need a license
to sell our products to foreign customers?
Answer: You would not need a license for otherwise controlled
technology or software if the technology and software are made
publicly available at a price that does not exceed the cost of
production and distribution to the technical community. Even if
priced at a higher level, the export or reexport of the technology
or software source code in a library accessible to the public is not
subject to the EAR (Sec. 734.7(a) of this part).
Section B: Conferences
Question B(1): I have been invited to give a paper at a
prestigious international scientific conference on a subject listed
as requiring a license under the EAR to all countries, except
Canada. Scientists in the field are given an opportunity to submit
applications to attend. Invitations are given to those judged to be
the leading researchers in the field, and attendance is by
invitation only. Attendees will be free to take notes, but not make
electronic or verbatim recordings of the presentations or
discussions. Some of the attendees will be foreigners. Do I need a
license to give my paper?
Answer: No. Release of information at an open conference and
information that has been released at an open conference is not
subject to the EAR. The conference you describe fits the definition
of an open conference (Sec. 734.7(d) of this part).
Question B(2): Would it make any difference if there were a
prohibition on making any notes or other personal record of what
transpires at the conference?
Answer: Yes. To qualify as an ``open'' conference, attendees
must be permitted to take notes or otherwise make a personal record
(although not necessarily a recording). If note taking or the making
of personal records is altogether prohibited, the conference would
not be considered ``open''.
Question B(3): Would it make any difference if there were also a
registration fee?
Answer: That would depend on whether the fee is reasonably
related to costs and reflects an intention that all interested and
technically qualified persons should be able to attend
(Sec. 734.7(d)(4)(ii) of this part).
Question B(4): Would it make any difference if the conference
were to take place in another country?
Answer: No.
Question B(5): Must I have a license to send the paper I propose
to present at such a foreign conference to the conference organizer
for review?
Answer: No. A license is not required under the EAR to submit
papers to foreign organizers of open conferences or other open
gatherings with the intention that the papers will be delivered at
the conference, and so made publicly available, if favorably
received. The submission of the papers is not subject to the EAR
(Sec. 734.7(d)(4)(iii) of this part).
Question B(6): Would the answers to any of the foregoing
questions be different if my work were supported by the Federal
Government?
Answer: No. You may export and reexport the papers, even if the
release of the paper violates any agreements you have made with your
government sponsor. However, nothing in the EAR relieves you of
responsibility for conforming to any controls you have agreed to in
your Federal grant or contract.
Section C: Educational Instruction
Question C(1): I teach a university graduate course on design
and manufacture of very high-speed integrated circuitry. Many of the
students are foreigners. Do I need a license to teach this course?
Answer: No. Release of information by instruction in catalog
courses and associated teaching laboratories of academic
institutions is not subject to the EAR (Sec. 734.9 of this part).
Question C(2): Would it make any difference if some of the
students were from countries to which export licenses are required?
Answer: No.
Question C(3): Would it make any difference if I talk about
recent and as yet unpublished results from my laboratory research?
Answer: No.
Question C(4): Even if that research is funded by the
Government?
Answer: Even then, but you would not be released from any
separate obligations you have accepted in your grant or contract.
Question C(5): Would it make any difference if I were teaching
at a foreign university?
Answer: No.
Question C(6): We teach proprietary courses on design and
manufacture of high-performance machine tools. Is the instruction in
our classes subject to the EAR?
Answer: Yes. That instruction would not qualify as ``release of
educational information'' under Sec. 734.9 of this part because your
proprietary business does not qualify as an ``academic institution''
within the meaning of Sec. 734.9 of this part. Conceivably, however,
the instruction might qualify as ``release at an open * * * seminar,
* * * or other open gathering'' under Sec. 734.7(d) of this part.
The conditions for qualification of such a seminar or gathering as
``open'', including a fee ``reasonably related to costs (of the
conference, not of producing the data) and reflecting an intention
that all interested and technically qualified persons be able to
attend,'' would have to be satisfied.
Section D: Research, Correspondence, and Informal Scientific
Exchanges
Question D(1): Do I need a license in order for a foreign
graduate student to work in my laboratory?
Answer: Not if the research on which the foreign student is
working qualifies as ``fundamental research'' under Sec. 734.8 of
this part. In that case, the research is not subject to the EAR.
Question D(2): Our company has entered into a cooperative
research arrangement with a research group at a university. One of
the researchers in that group is a PRC national. We would like to
share some of our proprietary information with the university
research group. We have no way of guaranteeing that this information
will not get into the hands of the PRC scientist. Do we need to
obtain a license to protect against that possibility?
Answer: No. The EAR do not cover the disclosure of information
to any scientists, engineers, or students at a U.S. university in
the course of industry-university research collaboration under
specific arrangements between the firm and the university, provided
these arrangements do not permit the sponsor to withhold from
publication any of the information that he provides to the
researchers. However, if your company and the researchers have
agreed to a prohibition on publication, then you must obtain a
license or qualify for a License Exception before transferring the
information to the university. It is important that you as the
corporate sponsor and the university get together to discuss whether
foreign nationals will have access to the information, so that you
may obtain any necessary authorization prior to transferring the
information to the research team.
Question D(3): My university will host a prominent scientist
from the PRC who is an expert on research in engineered ceramics and
composite materials. Do I require a license before telling our
visitor about my latest, as yet unpublished, research results in
those fields?
Answer: Probably not. If you performed your research at the
university, and you were subject to no contract controls on release
of the research, your research would qualify as ``fundamental
research'' (Sec. 734.8(a) of this part). Information arising during
or resulting from such research is not subject to the EAR
(Sec. 734.3(b)(3) of this part).
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 Export Administration, P.O. Box 273, Washington, DC 20044.
Question D(4): Would it make any difference if I were proposing
to talk with a PRC expert in China?
Answer: No, if the information in question arose during or
resulted from the same ``fundamental research.''
[[Page 12752]]
Question D(5): Could I properly do some work with him in his
research laboratory inside China?
Answer: Application abroad of personal knowledge or technical
experience acquired in the United States constitutes an export of
that knowledge and experience, and such an export may be subject to
the EAR. If any of the knowledge or experience you export in this
way requires a license under the EAR, you must obtain such a license
or qualify for a License Exception.
Question D(6): I would like to correspond and share research
results with an Iranian expert in my field, which deals with
technology that requires a license to all destinations except
Canada. Do I need a license to do so?
Answer: Not as long as we are still talking about information
that arose during or resulted from research that qualifies as
``fundamental'' under the rules spelled out in Sec. 734.8(a) of this
part.
Question D(7): Suppose the research in question were funded by a
corporate sponsor and I had agreed to prepublication review of any
paper arising from the research?
Answer: Whether your research would still qualify as
``fundamental'' would depend on the nature and purpose of the
prepublication review. If the review is intended solely to ensure
that your publications will neither compromise patent rights nor
inadvertently divulge proprietary information that the sponsor has
furnished to you, the research could still qualify as
``fundamental.'' But if the sponsor will consider as part of its
prepublication review whether it wants to hold your new research
results as trade secrets or otherwise proprietary information (even
if your voluntary cooperation would be needed for it to do so), your
research would no longer qualify as ``fundamental.'' As used in
these regulations it is the actual and intended openness of research
results that primarily determines whether the research counts as
``fundamental'' and so is not subject to the EAR.
Question D(8): In determining whether research is thus open and
therefore counts as ``fundamental,'' does it matter where or in what
sort of institution the research is performed?
Answer: In principle, no. ``Fundamental research'' is performed
in industry, Federal laboratories, or other types of institutions,
as well as in universities. The regulations introduce some
operational presumptions and procedures that can be used both by
those subject to the regulations and by those who administer them to
determine with some precision whether a particular research activity
is covered. Recognizing that common and predictable norms operate in
different types of institutions, the regulations use the
institutional locus of the research as a starting point for these
presumptions and procedures. Nonetheless, it remains the type of
research, and particularly the intent and freedom to publish, that
identifies ``fundamental research,'' not the institutional locus
(Sec. 734.8(a) of this part).
Question D(9): I am doing research on high-powered lasers in the
central basic-research laboratory of an industrial corporation. I am
required to submit the results of my research for prepublication
review before I can publish them or otherwise make them public. I
would like to compare research results with a scientific colleague
from Vietnam and discuss the results of the research with her when
she visits the United States. Do I need a license to do so?
Answer: You probably do need a license (Sec. 734.8(d) of this
part). However, if the only restriction on your publishing any of
that information is a prepublication review solely to ensure that
publication would compromise no patent rights or proprietary
information provided by the company to the researcher your research
may be considered ``fundamental research,'' in which case you may be
able to share information because it is not subject to the EAR. Note
that the information will be subject to the EAR if the
prepublication review is intended to withhold the results of the
research from publication.
Question D(10): Suppose I have already cleared my company's
review process and am free to publish all the information I intend
to share with my colleague, though I have not yet published?
Answer: If the clearance from your company means that you are
free to make all the information publicly available without
restriction or delay, the information is not subject to the EAR.
(Sec. 734.8(d) of this part)
Question D(11): I work as a researcher at a Government-owned,
contractor-operated research center. May I share the results of my
unpublished research with foreign nationals without concern for
export controls under the EAR?
Answer: That is up to the sponsoring agency and the center's
management. If your research is designated ``fundamental research''
within any appropriate system devised by them to control release of
information by scientists and engineers at the center, it will be
treated as such by the Commerce Department, and the research will
not be subject to the EAR. Otherwise, you would need to obtain a
license or qualify for a License Exception, except to publish or
otherwise make the information public (Sec. 734.8(c) of this part).
Section E: Federal Contract Controls
Question E(1): In a contract for performance of research entered
into with the Department of Defense (DOD), we have agreed to certain
national security controls. DOD is to have ninety days to review any
papers we proposed before they are published and must approve
assignment of any foreign nationals to the project. The work in
question would otherwise qualify as ``fundamental research'' section
under Sec. 734.8 of this part. Is the information arising during or
resulting from this sponsored research subject to the EAR?
Answer: Under Sec. 734.11 of this part, any export or reexport
of information resulting from government-sponsored research that is
inconsistent with contract controls you have agreed to will not
qualify as ``fundamental research'' and any such export or reexport
would be subject to the EAR. Any such export or reexport that is
consistent with the controls will continue to be eligible for export
and reexport under the ``fundamental research'' rule set forth in
Sec. 734.8(a) of this part. Thus, if you abide by the specific
controls you have agreed to, you need not be concerned about
violating the EAR. If you violate those controls and export or
reexport information as ``fundamental research'' under Sec. 734.8(a)
of this part, you may subject yourself to the sanctions provided for
under the EAR, including criminal sanctions, in addition to
administrative and civil penalties for breach of contract under
other law.
Question E(2): Do the Export Administration Regulations restrict
my ability to publish the results of my research?
Answer: The Export Administration Regulations are not the means
for enforcing the national security controls you have agreed to. If
such a publication violates the contract, you would be subject to
administrative, civil, and possible criminal penalties under other
law.
Section F: Commercial Consulting
Question F(1): I am a professor at a U.S. university, with
expertise in design and creation of submicron devices. I have been
asked to be a consultant for a ``third-world'' company that wishes
to manufacture such devices. Do I need a license to do so?
Answer: Quite possibly you do. Application abroad of personal
knowledge or technical experience acquired in the United States
constitutes an export of that knowledge and experience that is
subject to the Export Administration Regulations. If any part of the
knowledge or experience your export or reexport deals with
technology that requires a license under the EAR, you will need to
obtain a license or qualify for a License Exception.
Section G: Software 2
\2\ Exporters should note that these provisions do not apply to
software controlled under the International Traffic in Arms
Regulations (e.g., certain encryption software).
---------------------------------------------------------------------------
Question G(1): Is the export or reexport of software in machine
readable code subject to the EAR when the source code for such
software is publicly available?
Answer: If the source code of a software program is publicly
available, then the machine readable code compiled from the source
code is software that is publicly available and therefore not
subject to the EAR.
Question G(2): Is the export or reexport of software sold at a
price that does not exceed the cost of reproduction and distribution
subject to the EAR?
Answer: Software in machine readable code is publicly available
if it is available to a community at a price that does not exceed
the cost of reproduction and distribution. Such reproduction and
distribution costs may include variable and fixed allocations of
overhead and normal profit for the reproduction and distribution
functions either in your company or in a third party distribution
system. In your company, such costs may not include recovery for
development, design, or acquisition. In this case, the provider of
the software does not receive a fee for the inherent value of the
software.
[[Page 12753]]
Question G(3): Is the export or reexport of software subject to
the EAR if it is sold at a price BXA concludes in a classification
letter to be sufficiently low so as not to subject it to the EAR?
Answer: In response to classification requests, BXA may choose
to classify certain software as not subject to the EAR even though
it is sold at a price above the costs of reproduction and
distribution as long as the price is nonetheless sufficiently low to
qualify for such a classification in the judgment of BXA.
Section H: Available in a Public Library
Question H(1): Is the export or reexport of information subject
to the EAR if it is available in a library and sold through an
electronic or print service?
Answer: Electronic and print services for the distribution of
information may be relatively expensive in the marketplace because
of the value vendors add in retrieving and organizing information in
a useful way. If such information is also available in a library--
itself accessible to the public--or has been published in any way,
that information is ``publicly available'' for those reasons, and
the information itself continues not to be subject to the EAR even
though you access the information through an electronic or print
service for which you or your employer pay a substantial fee.
Question H(2): Is the export or reexport of information subject
to the EAR if the information is available in an electronic form in
a library at no charge to the library patron?
Answer: Information available in an electronic form at no charge
to the library patron in a library accessible to the public is
information publicly available even though the library pays a
substantial subscription fee for the electronic retrieval service.
Question H(3): Is the export or reexport of information subject
to the EAR if the information is available in a library and sold for
more than the cost of reproduction and distribution?
Answer: Information from books, magazines, dissertations,
papers, electronic data bases, and other information available in a
library that is accessible to the public is not subject to the EAR.
This is true even if you purchase such a book at more than the cost
of reproduction and distribution. In other words, such information
is ``publicly available'' even though the author makes a profit on
your particular purchase for the inherent value of the information.
Section I: Miscellaneous
Question I(1): The manufacturing plant that I work at is
planning to begin admitting groups of the general public to tour the
plant facilities. We are concerned that a license might be required
if the tour groups include foreign nationals. Would such a tour
constitute an export? If so, is the export subject to the EAR?
Answer: The EAR define exports and reexports of technology to
include release through visual inspection by foreign nationals of
U.S.-origin equipment and facilities. Such an export or reexport
qualifies under the ``publicly available'' provision and would not
be subject to the EAR so long as the tour is truly open to all
members of the public, including your competitors, and you do not
charge a fee that is not reasonably related to the cost of
conducting the tours. Otherwise, you will have to obtain a license,
or qualify for a License Exception, prior to permitting foreign
nationals to tour your facilities (Sec. 734.7 of this part).
Question I(2): Is the export or reexport of information subject
to the EAR if the information is not in a library or published, but
sold at a price that does not exceed the cost of reproduction and
distribution?
Answer: Information that is not in a library accessible to the
public and that has not been published in any way, may nonetheless
become ``publicly available'' if you make it both available to a
community of persons and if you sell it at no more than the cost of
reproduction and distribution. Such reproduction and distribution
costs may include variable and fixed cost allocations of overhead
and normal profit for the reproduction and distribution functions
either in your company or in a third party distribution system. In
your company, such costs may not include recovery for development,
design, or acquisition costs of the technology or software. The
reason for this conclusion is that the provider of the information
receives nothing for the inherent value of the information.
Question I(3): Is the export or reexport of information
contributed to an electronic bulletin board subject to the EAR?
Answer: Assume each of the following:
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.
Question I(4): Is the export or reexport of patented information
fully disclosed on the public record subject to the EAR?
Answer: Information to the extent it is disclosed on the patent
record open to the public is not subject to the EAR even though you
may use such information only after paying a fee in excess of the
costs of reproduction and distribution. In this case the seller does
receive a fee for the inherent value of the technical data; however,
the export or reexport of the information is nonetheless not subject
to the EAR because any person can obtain the technology from the
public record and further disclose or publish the information. For
that reason, it is impossible to impose export controls that deny
access to the information.
Supplement No. 2 to Part 734--Calculation of Values for De Minimis
Rules
(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, according to the CCL (part 774
of the EAR) and the Country Chart (part 738 of the EAR), 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).
(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 BXA 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 de minimis level, then the foreign-made item is not
subject to the EAR by reason of Sec. 734.4 of this part, the
classification of a foreign-made item is irrelevant in determining
the scope of the EAR, and you should skip Step 4 in Sec. 732.2(d)
and go on to consider Step 6 in Sec. 732.2(f) of the EAR regarding
the foreign-produced direct product rule.
(b) One-time report prior to reliance upon the de minimis
exclusion.
(1) Report requirement. Before you may rely upon the de minimis
exclusion for foreign software and technology commingled with U.S.
software or technology, you must file a one-time report for the
foreign software or technology. The report must include the
percentage of U.S.-content by value and a description of your
calculations including relevant values, assumptions, and the basis
or methodologies for making the percentage calculation. The three
criteria important to BXA in its review of your report will be the
export price of the U.S.-content, the assumption regarding future
sales of software, and the choice of the scope of foreign
technology. Your methodologies must be based upon the accounting
standards used in the operation of your business, and you must
specify that standard in your report. Regardless of the accounting
systems,
[[Page 12754]]
standard, or conventions you use in the operation of your business,
you may not depreciate the fair market values reported or otherwise
reduce the fair market values by other accounting conventions such
as depreciation. You may rely upon the de minimis exclusion from the
commingled rule only to the extent you have reported the relevant
calculations, values, assumptions, and the basis or methodologies
for the calculations. These values may be historic or projected. You
may rely on projected values only to the extent that and for so long
as they remain consistent with your report or future values reduce
the U.S.-content under your reported assumptions, basis, and
methodologies. You are not required to file the above report if you
do not choose to take advantage of the de minimis exclusion from the
commingled rule.
(2) Export price. The report must include a description of the
U.S.-content including its classification on the Commerce Control
List, its performance characteristics and features, and the method
of calculating its fair market value. The fair market value shall be
the arms-length transaction price, if it is available. If an arms-
length transaction price is unavailable, then the report will
describe the valuation method chosen to calculate or derive the fair
market value. Such methods may include comparable market prices or
costs of production and distribution. This rule does not require
calculations based upon any one accounting system or U.S. accounting
standards. However, you must specify the accepted accounting
standards you have chosen, and cost-based methods of valuation must
be based upon records you maintain in the normal course of business.
You should also indicate whether reported values are actual arms-
length market prices or derived from comparable transactions or
costs of production, overhead, and profit. For example, if you chose
to make calculations under the transfer pricing rules of the United
States Internal Revenue Code at section 482, your report should
indicate that this is the source for your methodology, and you
should also indicate which of the several methodologies in these
transfer pricing rules you have chosen.
(3) Future software sales. For calculations of U.S.-content in
foreign software, you shall include your estimate of future software
sales in units and value along with the rationale and basis for
those estimates in the report.
(4) Foreign technology and software. For calculations of U.S.-
content in foreign technology and software, you shall include in the
report a description of the foreign technology or software and a
description of its fair market value along with the rationale and
basis for the selection and valuation of such foreign software or
technology. The report does not require information regarding
destinations and end users for reexport. The purpose of the report
is solely to permit the U.S. Government to evaluate the
reasonableness of U.S.-content calculations.
(5) Report and wait. If you have not been contacted by BXA
concerning your report within thirty days after filing the report
with BXA, you may rely upon the calculations in your report and the
de minimis exclusions for software and technology for so long as you
are not contacted by BXA. BXA may contact you concerning your report
to inquire of you further or to indicate that BXA does not accept
the assumptions or rationale for your calculations. If you receive
such a contact or communication from BXA, you may not rely upon the
de minimis exclusions for software and technology in Sec. 734.4 of
this part until BXA has indicated whether or not you may do so in
the future. You must include in your report the name, title,
address, telephone number, and facsimile number of the person BXA
may contact concerning your report.
PART 736--GENERAL PROHIBITIONS
Sec.
736.1 Introduction.
736.2 General prohibitions and determination of applicability.
Supplement No. 1--General Orders
Supplement No. 2--Administrative Orders
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; E.O. 12938, 3 CFR, 1994
Comp., p. 950; Notice of August 15, 1995 (60 FR 42767, August 17,
1995).
Sec. 736.1 Introduction.
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 Sec. 736.2(a) of this part and upon the general
prohibitions described in Sec. 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.
Sec. 736.2 General prohibitions and determination of applicability.
(a) Information or facts that determine the applicability of the
general prohibitions. The following five types of facts determine your
obligations under the ten general prohibitions and the EAR generally:
(1) Classification of the item. The classification of the item on
the Commerce Control List (see part 774 of the EAR);
(2) Destination. The country of ultimate destination for an export
or reexport (see parts 738 and 774 of the EAR concerning the Country
Chart and the Commerce Control List);
(3) End-user. The ultimate end-user (see General Prohibition Four
(paragraph (b)(4) of this section) and parts 744 and 764 of the EAR for
a reference to the list of persons you may not deal with);
(4) End-use. The ultimate end-use (see General Prohibition Five
(paragraph (b)(5) of this section) and part 744 of the EAR for general
end-use restrictions); and
(5) Conduct. Conduct such as contracting, financing, and freight
forwarding in support of a proliferation project as described in part
744 of the EAR.
(b) General prohibitions. The following ten general prohibitions
describe certain exports, reexports, and other conduct, subject to the
scope of the EAR, in which you may not engage unless you either have a
license from the Bureau of Export Administration (BXA) or qualify under
part 740 of the EAR for a License Exception from each applicable
general prohibition in this paragraph. The License Exceptions at part
740 of the EAR apply only to General Prohibitions One (Exports and
Reexports in the Form Received), Two (Parts and Components Reexports),
and Three (Foreign-Produced Direct Product Reexports); however,
selected License Exceptions are specifically referenced and authorized
in part 746 of the EAR concerning embargo destinations and in
Sec. 744.2(c) of the EAR regarding nuclear end-uses.
[[Page 12755]]
(1) General Prohibition One--Export and reexport of controlled
items to listed countries (Exports and Reexports). You may not, without
a license or License Exception, export any item subject to the EAR to
another country or reexport any item of U.S.-origin if each of the
following is true:
(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.) 1 Note that each
License Exception described at part 740 of the EAR supersedes General
Prohibition One if all terms and conditions of a given License
Exception are met by the exporter or reexporter.
\1\ See part 738 of the EAR for selected controls that are not
specified on the Country Chart.
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(2) General Prohibition Two--Reexport and export from abroad of
foreign-made items incorporating more than a de minimis amount of
controlled U.S. content (Parts and Components Reexports).
(i) You may not, without a license or License Exception, export,
reexport or export from abroad any foreign-made commodity, software, or
technology incorporating U.S.-origin commodities, software, or
technology respectively that is controlled to the country of ultimate
destination if the foreign-made item meets all three of the following
conditions:
(A) It incorporates more than the de minimis amount of controlled
U.S. content, as defined in Sec. 734.4 of the EAR concerning the scope
of the EAR;
(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 at part 740 of the EAR
supersedes General Prohibition One if all terms and conditions of a
given License Exception are met by the exporter or reexporter.
(3) General Prohibition Three--Reexport and export from abroad of
the foreign-produced direct product of U.S. technology and software
(Foreign-Produced Direct Product Reexports).
(i) Country scope of prohibition. You may not export, reexport, or
export from abroad items subject to the scope of this General
Prohibition Three to Cuba, North Korea, Libya, or a destination in
Country Group D:1 (See Supplement No. 1 to part 740 of the EAR).
(ii) Product scope of foreign-made items subject to prohibition.
This General Prohibition 3 applies if an item meets either the
Conditions defining the direct product of technology or the Conditions
defining the direct product of a plant in paragraph (b)(3)(ii)(A) of
this section:
(A) Conditions defining direct product of technology. Foreign-made
items are subject to this General Prohibition 3 if they meet both of
the following conditions:
(1) They are the direct product of technology or software that
requires a written assurance as a supporting document for a license or
as a precondition for the use of License Exception TSR at Sec. 740.3(d)
of the EAR, and
(2) They are subject to national security controls as designated on
the applicable ECCN of the Commerce Control List at part 774 of the
EAR.
(B) Conditions defining direct product of a plant. Foreign-made
items are also subject to this General Prohibition 3 if they are the
direct product of a complete plant or any major component of a plant if
both of the following conditions are met:
(1) Such plant or component is the direct product of technology
that requires a written assurance as a supporting document for a
license or as a precondition for the use of License Exception TSR at
Sec. 740.3(d) of the EAR, and
(2) Such foreign-made direct products of the plant or component are
subject to national security controls as designated on the applicable
ECCN of the Commerce Control List at part 774 of the EAR.
(iii) License Exceptions. Each License Exception described at part
740 of the EAR supersedes this General Prohibition Three if all terms
and conditions of a given exception are met by the exporter or
reexporter.
(4) General Prohibition Four (Denial Orders)--Engaging in actions
prohibited by a denial order. (i) You may not take any action that is
prohibited by a denial order issued under part 766 of the EAR,
Administrative Enforcement Proceedings. These orders prohibit many
actions in addition to direct exports by the person denied export
privileges, including some transfers within a single country either in
the United States or abroad by other persons. You are responsible for
ensuring that any of your transactions in which a person who is denied
export privileges is involved do not violate the terms of the order.
The names of persons denied export privileges are published in the
Federal Register and are also included on the Denied Persons List,
which is referenced in Supplement No. 2 to part 764 of the EAR,
Enforcement. The terms of the standard denial order are set forth in
Supplement No. 1 to part 764. You should note that some denial orders
differ from the standard denial order. BXA may, on an exceptional
basis, authorize activity otherwise prohibited by a denial order. See
Sec. 764.3(a)(3) of the EAR.
(ii) There are no License Exceptions described in part 740 of the
EAR that authorize conduct prohibited by this General Prohibition Four.
(5) General Prohibition Five--Export or reexport to prohibited end-
uses or end-users (End-Use End-User). You may not, without a license,
knowingly export or reexport any item subject to the EAR to an end-user
of end-use that is prohibited by part 744 of the EAR.
(6) General Prohibition Six--Export or reexport to embargoed
destinations (Embargo). (i) You may not, without a license or License
Exception authorized under part 746, export or reexport any item
subject to the EAR to a country that is embargoed by the United States
or otherwise made subject to controls as both are described at part 746
of the EAR.
(ii) License Exceptions to this General Prohibition Six are
described at part 746 of the EAR on Embargoes and Other Special
Controls; and unless a License Exception is authorized in part 746 of
the EAR, the License Exceptions at part 740 of the EAR are not
available to overcome this general prohibition.
(7) General Prohibition Seven--Support of Proliferation Activities
(U.S. Person Proliferation Activity). If you are a U.S. Person as that
term is defined at Sec. 744.6(c) of the EAR, you may not engage in any
activities prohibited by Sec. 744.6 (a) or (b) of the EAR which
prohibits the performance, without a license from BXA, of certain
financing, contracting, service, support, transportation, freight
forwarding, or employment that you know will assist in certain
proliferation activities described further at part 744 of the EAR.
There are no License Exceptions to this General Prohibition Seven in
part 740 of the EAR unless specifically authorized in that part.
(8) General Prohibition Eight--In transit shipments and items to be
[[Page 12756]]
unladen from vessels or aircraft (Intransit). (i) Unlading and shipping
in transit. You may not export an item through or transit through a
country listed in (b)(8)(ii) of this section unless a License Exception
or license authorizes such an export directly to such a country of
transit.
(ii) Country scope. This General Prohibition Eight applies to
Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba,
Estonia, Georgia, Kazakhstan, Kyrgyzstan, Laos, Latvia, Lithuania,
Mongolia, North Korea, Russia, Tajikistan, Turkmenistan, Ukraine,
Uzbkeistan, Vietnam.
(9) General Prohibition Nine--Violation of any order, terms, and
conditions (Orders, Terms, and Conditions). You may not violate terms
or conditions of a license or of a License Exception issued under or
made a part of the EAR, and you may not violate any order issued under
or made a part of the EAR. There are no License Exceptions to this
General Prohibition Nine in part 740 of the EAR. Supplements Nos. 1 and
2 to this part provide for certain General Orders and Administrative
Orders.
(10) General Prohibition Ten--Proceeding with transactions with
knowledge that a violation has occurred or is about to occur (Knowledge
Violation to Occur). You may not sell, transfer, export, reexport,
finance, order, buy, remove, conceal, store, use, loan, dispose of,
transfer, transport, forward, or otherwise service, in whole or in
part, any item subject to the EAR and exported or to be exported with
knowledge that a violation of the Export Administration Regulations,
the Export Administration Act or any order, license, License Exception,
or other authorization issued thereunder has occurred, is about to
occur, or is intended to occur in connection with the item. Nor may you
rely upon any license or License Exception after notice to you of the
suspension or revocation of that license or exception. There are no
License Exceptions to this General Prohibition Ten in part 740 of the
EAR.
Supplement No. 1 to Part 736--General Orders
[Reserved]
Supplement No. 2 to Part 736--Administrative Orders
Administrative Order One: Disclosure of License Issuance and
Other Information. Consistent with section 12(c) of the Export
Administration Act of 1979, as amended, information obtained by the
U.S. Department of Commerce for the purpose of consideration of or
concerning license applications, as well as related information,
will not be publicly disclosed without the approval of the Secretary
of Commerce. Shipper's Export Declarations also are exempt from
public disclosure, except with the approval of the Secretary of
Commerce, in accordance with Sec. 301(g) of Title 13, United States
Code.
Administrative Order Two: Conduct of Business and Practice in
Connection with Export Control Matters.
(a) Conduct of business and practice in connection with export
control matters.
(1) Exclusion of persons guilty of unethical conduct or not
possessing required integrity and ethical standards.
(i) Who may be excluded. Any person, whether acting on his own
behalf or on behalf of another, who shall be found guilty of
engaging in any unethical activity or who shall be demonstrated not
to possess the required integrity and ethical standards, may be
excluded from (denied) export privileges on his own behalf, or may
be excluded from practice before BXA on behalf of another, in
connection with any export control matter, or both, as provided in
part 764 of the EAR.
(ii) Grounds for exclusion. Among the grounds for exclusion are
the following:
(A) Inducing or attempting to induce by gifts, promises, bribes,
or otherwise, any officer or employee of BXA 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;
(B) Offering or making gifts or promises thereof to any such
officer or employee for any other reason;
(C) Soliciting by advertisement or otherwise the handling of
business before BXA on the representation, express or implied, that
such person, through personal acquaintance or otherwise, possesses
special influence over any officer or employee of BXA;
(D) 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
(E) 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.
(iii) Definition. As used in this Administration Order, the
terms ``practice before BXA'' and ``appear before BXA'' include:
(A) The submission on behalf of another of applications for
export licenses or other documents required to be filed with BXA, or
the execution of the same;
(B) Conferences or other communications on behalf of another
with officers or employees of BXA for the purpose of soliciting or
expediting approval by BXA 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 BXA;
(C) Participating on behalf of another in any proceeding pending
before BXA; and
(D) Submission to a customs official on behalf of another of a
license or Shipper's Export Declaration or other export control
document.
(iv) Proceedings. All proceedings under this Administrative
Order shall be conducted in the same manner as provided in part 766
of the EAR.
(2) Employees and former employees. Persons who are or at any
time have been employed on a full-time or part-time, compensated or
uncompensated, basis by the U.S. Government are subject to the
provisions of 18 U.S.C. 203, 205, and 207 (Pub. L. 87-849, 87th
Congress) in connection with representing a private party or
interest before the U.S. Department of Commerce in connection with
any export control matter.
PART 738--COMMERCE CONTROL LIST OVERVIEW AND THE COUNTRY CHART
Sec.
738.1 Introduction.
738.2 Commerce Control List (CCL) structure.
738.3 Commerce Country Chart structure.
738.4 Determining whether a license is required.
Supplement No. 1 to Part 738--Commerce Country Chart
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C.
287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; Sec. 201, Pub. L. 104-
58, 109 Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C.
2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50
U.S.C. app. 5; E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of
August 15, 1995 (60 FR 42767, August 17, 1995).
Sec. 738.1 Introduction.
(a) Commerce Control List scope. (1) In this part, references to
the EAR are references to 15 CFR chapter VII, subchapter C. The Bureau
of Export Administration (BXA) maintains the Commerce Control List
(CCL) within the Export Administration Regulations (EAR), which
includes items (i.e., commodities, software, and technology) subject to
the export licensing authority of BXA. The CCL does not include those
items exclusively controlled for export or reexport by another
department or agency of the U.S. Government. In instances where
agencies other than the Department of Commerce administer
[[Page 12757]]
controls over related items, entries in the CCL contain a reference to
these controls.
(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) Commerce Country Chart scope. BXA also maintains the Commerce
Country Chart. The Commerce Country Chart, located in Supplement No. 1
to part 738, contains licensing requirements based on destination and
Reason for Control. In combination with the CCL, the Commerce Country
Chart allows you to determine whether a license is required for items
on the CCL to any country in the world.
Sec. 738.2 Commerce Control List (CCL) structure.
(a) Categories. The CCL is divided into 10 categories, numbered as
follows:
0--Nuclear Materials, Facilities and Equipment and Miscellaneous
1--Materials, Chemicals, ``Microorganisms,'' and Toxins
2--Materials Processing
3--Electronics
4--Computers
5--Telecommunications and Information Security
6--Lasers and Sensors
7--Navigation and Avionics
8--Marine
9--Propulsion Systems, Space Vehicles and Related Equipment
(b) Groups. Within each category, items are arranged by group. Each
category contains the same five groups. Each Group is identified by the
letters A through E, as follows:
A--Equipment, Assemblies and Components
B--Test, Inspection and Production Equipment
C--Materials
D--Software
E--Technology
(c) Order of review. In order to classify your item against the
CCL, you should begin with a review of the general characteristics of
your item. This will usually guide you to the appropriate category on
the CCL. Once the appropriate category is identified, you should match
the particular characteristics and functions of your item to a specific
ECCN. If the ECCN contains a list under the ``Items'' heading, you
should review the list to determine within which subparagraph(s) your
items are identified.
(d) Entries. (1) Composition of an entry. Within each group,
individual items are identified by an Export Control Classification
Number (ECCN). Each number consists of a set of digits and a letter.
The first digit identifies the general category within which the entry
falls (e.g., 3A001). The letter immediately following this first digit
identifies under which of the five groups the item is listed (e.g.,
3A001). The second digit differentiates individual entries by
identifying the type of controls associated with the items contained in
the entry (e.g., 3A001). Listed below are the Reasons for Control
associated with this second digit.
0: National Security reasons (including Dual Use and International
Munitions List) and Items on the NSG Dual Use Annex and Trigger List
1: Missile Technology reasons
2: Nuclear Nonproliferation reasons
3: Chemical & Biological Weapons reasons
9: Anti-terrorism, Crime Control, Regional Stability, Short Supply, UN
Sanctions, etc.
(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., 3A001)
serve to differentiate between multilateral and unilateral entries. An
entry with the number ``9'' as the second digit, identifies the entire
entry as controlled for a unilateral concern (e.g., 2B991 for anti-
terrorism reasons). If the number ``9'' appears as the third digit, the
item is controlled for unilateral purposes based on a proliferation
concern (e.g., 2A292 is controlled for unilateral purposes based on
nuclear nonproliferation concerns).
(2) Reading an ECCN. A brief description is provided next to each
ECCN. Following this description is the actual entry containing
``License Requirements,'' ``License Exceptions,'' and ``List of Items
Controlled'' sections. A brief description of each section and its use
follows:
(i) License Requirements. This section contains a separate line
identifying all possible Reasons for Control in order of precedence,
and two columns entitled ``Control(s)'' and ``Country Chart''.
(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:
AT Anti-Terrorism
CB Chemical & Biological Weapons
CC Crime Control
MT Missile Technology
NS National Security
NP Nuclear Nonproliferation
RS Regional Stability
SS Short Supply
XP Computers
(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) License Exceptions. This section provides a brief eligibility
statement for each ECCN-driven License Exception that may be applicable
to your transaction, and should be consulted only AFTER you have
determined a license is required based on an analysis of the entry and
the Country Chart. The brief eligibility statement in this section is
provided to assist you in deciding which ECCN-driven License Exception
related to your particular item and destination you should explore
prior to submitting an application. The word ``Yes'' (followed in some
instances by the scope of Yes) appears next to each available ECCN-
driven License Exception. ``N/A'' will be noted for License Exceptions
that are not available within a particular entry. If one or more
License Exceptions appear to apply to your transaction, you must
consult part 740 of the EAR to review the conditions and restrictions
applicable to each available License Exception.
(iii) List of Items Controlled. (A) Units. The unit of measure
applicable to each entry is identified in the ``Units'' header. Most
measurements used in the CCL are expressed in metric units with an
inch-pound conversion where appropriate. Note that in some ECCNs the
inch-pound unit will be listed first. In instances where other units
are in general usage or specified by law, these will be used instead of
metric. Generally, when there is a difference
[[Page 12758]]
between the metric and inch-pound figures, the metric standard will be
used for classification and licensing purposes.
(B) Related definitions. This header identifies, where appropriate,
definitions or parameters that apply to all items controlled by the
entry. The information provided in this section is unique to the entry,
and hence not listed in the definitions contained in part 772 of the
EAR.
(C) Related controls. If another U.S. government agency or
department has export licensing authority over items related to those
controlled by an entry, a statement is included identifying the agency
or department along with the applicable regulatory cite. An additional
cross-reference may be included in instances where the scope of
controls differs between a CCL entry and its corresponding entry on
list maintained by the European Union. This information is provided to
assist readers who use both lists.
(D) Items. This header contains a positive list of all items
controlled by a particular entry and must be reviewed to determine
whether your item is controlled by that entry. In some entries, the
list is contained within the entry heading. In these entries a note is
included to direct you to the entry heading.
Sec. 738.3 Commerce Country Chart structure.
(a) Scope. The Commerce Country Chart (Country Chart) allows you to
determine, based on the Reason(s) for Control associated with your
item, if you need a license to export or reexport your item to a
particular destination. There are only two instances where the chart
cannot be used for this purpose:
(1) Items controlled for short supply reasons. Due to the unique
nature of these controls, entries controlled for Short Supply reasons
will send you directly to part 754 of the EAR. Part 754 of the EAR is
self-contained and includes information on licensing requirements,
licensing policies, and all available License Exceptions, for items
controlled for Short Supply reasons.
(2) Unique entries. The following are unique entries where you do
not need to consult the Country Chart to determine whether a license is
required.
(A) ECCNs 0A983 and 5A980. A license is required for all
destinations of items controlled under these entries. No License
Exceptions apply. If your item is controlled by 0A983 or 5A980 you
should proceed directly to part 748 of the EAR for license application
instructions and Sec. 742.11 or Sec. 742.13 of the EAR for information
on the licensing policy relevant to these types of applications.
(B) ECCNs 0A986, 0A988, 1A988, 2A994, 2D994, 2E994 and 2B985. A
license is required for items controlled under these entries only to
the specific countries identified within each entry.
(b) Countries. The first column of the Country Chart lists all
countries in alphabetical order. There are a number of destinations
that are not listed in the Country Chart contained in Supplement No. 1
to part 738. If your destination is not listed on the Country Chart and
such destination is a territory, possession, or department of a country
included on the Country Chart, the EAR accords your destination the
same licensing treatment as the country of which it is a territory,
possession, or department. For example, if your destination is the
Cayman Islands, a dependent territory of the United Kingdom, consult
the United Kingdom on the Country Chart for licensing requirements.
(c) Columns. Stretching out to the right are horizontal headers
identifying the various Reasons for Control. Under each Reason for
Control header are diagonal column identifiers capping individual
columns. Each column identifier consists of the two letter Reason for
Control and a column number. (e.g., CB Column 1). The column
identifiers correspond to those listed in the ``Country Chart'' header
within the ``License Requirements'' section of each ECCN.
(d) Cells. The symbol ``X'' is used to denote licensing
requirements on the Country Chart. If an ``X'' appears in a particular
cell, transactions subject to that particular Reason for Control/
Destination combination require a license. There is a direct
correlation between the number of ``X''s applicable to your transaction
and the number of licensing reviews your application will undergo.
Sec. 738.4 Determining whether a license is required.
(a) Using the CCL and the Country Chart. (1) Overview. Once you
have determined that your item is controlled by a specific ECCN, you
must use information contained in the ``License Requirements'' section
of that ECCN in combination with the Country Chart to decide whether a
license is required.
(2) License decision making process. The following decision making
process must be followed in order to determine whether a license is
required to export or reexport a particular item to a specific
destination:
(i) Examine the appropriate ECCN in the CCL. Is the item you intend
to export or reexport controlled for a single Reason for Control?
(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) Review the Country Chart. With each of the applicable Country
Chart Column identifiers noted, turn to the Country Chart (Supplement
No. 1 to part 738). Locate the correct Country Chart column identifier
on the diagonal headings, and determine whether an ``X'' is marked in
the cell next to the country in question for each Country Chart column
identified in the applicable ECCN. If your item is subject to more than
one reason for control, repeat this step using each unique Country
Chart column identifier.
(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 General Prohibitions Four through
Ten do not apply to your proposed transaction, 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 BXA on your
license application.
[[Page 12759]]
(b) Sample analysis using the CCL and Country Chart. (1) Scope. The
following sample entry and related analysis is provided to illustrate
the type of thought process you must complete in order to determine
whether a license is required to export or reexport a particular item
to a specific destination using the CCL in combination with the Country
Chart.
(2) Sample CCL entry.
2A000: Entry heading.
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
NP applies to 2A000.b.................. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5,000
GBS: Yes
CIV: N/A
List of Items Controlled
Unit: Number
Related Definition: N/A
Related Controls: N/A
Items:
a. Having x.
b. Having z.
(3) Sample analysis. After consulting the CCL, I determine my item,
valued at $10,000, is classified under ECCN 2A000.a. I read that the
entire entry is controlled for national security, and anti-terrorism
reasons. Since my item is classified under paragraph .a, and not .b, I
understand that though nuclear nonproliferation controls apply to a
portion the entry, they do not apply to my item. I note that the
appropriate Country Chart column identifiers are NS Column 2 and AT
Column 1. Turning to the Country Chart, I locate my specific
destination, India, and see that an ``X'' appears in the NS Column 2
cell for India, but not in the AT Column 1 cell. I understand that a
license is required, unless my transaction qualifies for a License
Exception or Special Comprehensive License. From the License Exception
LVS value listed in the entry, I know immediately that my proposed
transaction exceeds the value limitation associated with LVS. Noting
that License Exception GBS is ``Yes'' for this entry, I turn to part
740 of the EAR to review the provisions related to use of GBS.
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BILLING CODE 3510-DT-C
[[Page 12768]]
PART 740--LICENSE EXCEPTIONS
Sec.
740.1 Introduction.
740.2 Restrictions on all License Exceptions.
740.3 License Exceptions based on the Commerce Control List (LST).
740.4 Temporary imports, exports, and reexports (TMP).
740.5 Servicing and replacement of parts and equipment (RPL).
740.6 Governments and international organizations (GOV).
740.7 Gift parcels and humanitarian donations (GFT).
740.8 Technology and software--unrestricted (TSU).
740.9 Baggage (BAG).
740.10 Aircraft and vessels (AVS).
740.11 Additional Permissive Reexports (APR).
Supplement No. 1 to Part 740--Country Groups
Supplement No. 2 to Part 740--Items That May Be Donated to Meet Basic
Human Needs Under the Humanitarian License Exception
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 740.1 Introduction.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C.
(a) Scope. A ``License Exception'' is an authorization contained in
this part that allows you to export or reexport, under stated
conditions, items subject to the Export Administration Regulations
(EAR) that would otherwise require a license under General Prohibitions
One, Two, or Three, as indicated under one or more of the Export
Control Classification Numbers (ECCN) in the Commerce Control List
(CCL) in part 774 of the EAR. If your export or reexport is subject to
General Prohibition Six for embargoed destinations, refer to part 746
of the EAR concerning embargoed destinations to determine the
availability of any License Exception. Special commodity controls apply
to short supply items. Exceptions for items listed on the CCL as
controlled for Short Supply reasons are found in part 754 of the EAR.
If your export or reexport is subject General Prohibition Seven,
consult part 744 of the EAR. If your export or reexport is subject to
General Prohibitions Four, Five, Eight, Nine, or Ten, then no License
Exceptions apply.
(b) Certification. By using any of the License Exceptions you are
certifying that the terms, provisions, and conditions for the use of
the License Exception described in the EAR have been met. Please refer
to part 758 of the EAR for clearance of shipments and documenting the
use of License Exceptions.
(c) License Exception groupings and symbols. License Exceptions are
grouped together; each grouping bears a three letter symbol that will
be used for export clearance purposes (see paragraph (d) of this
section). Additionally, each License Exception bears a separate
designator, of three or four letters, for convenience in distinguishing
between License Exceptions and for recordkeeping purposes.
(d) Shipper's Export Declaration. (1) Clearing exports under
License Exceptions. You must enter on any required Shipper's Export
Declaration (SED) the letter code (e.g., LST, TMP) of the grouping of
License Exceptions under which you are exporting. In the case of
License Exceptions available under LST, except License Exception TSR
(Technology and Software under Restriction), the ECCN of the item being
exported must also be entered. Please refer to Sec. 758.3 of the EAR
for the use of SEDs.
(2) Clearing exports when no license is required (NLR). Certain
items are listed on the CCL but do not require a license to certain
destinations under General Prohibitions One, (Exports and Reexports in
the Form Received), Two (Parts and Components Reexports), or Three
(Foreign Produced Direct Product Reexports) (Sec. 732.6 (b)(1), (b)(2),
or (b)(3) of the EAR). (You will have determined this by consulting the
Country Chart and finding no ``X'' in the box(es) at the
intersection(s) of your country of destination and the column headings
assigned to your item by the CCL.) If General Prohibitions Four through
Ten (Sec. 732.6 (b)(4) through (b)(10) of the EAR) also do not apply,
you must clear exports of such items by entering the symbol ``NLR'' in
the appropriate place on the Shippers Export Declaration. The term
``NLR'' represents exports of listed items when no license is required.
Such exports do not require that you qualify for a License Exception.
(e) Destination Control Statement. You may be required to enter an
appropriate Destination Control Statement on commercial documents in
accordance with the Destination Control Statement requirements of
Sec. 758.5 of the EAR.
(f) Recordkeeping. Records of transactions involving exports under
any of the License Exceptions must be maintained in accordance with the
recordkeeping requirements of part 762 of the EAR.
Sec. 740.2 Restrictions on all License Exceptions.
(a) You may not use any License Exception if any one or more of the
following apply:
(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 is contrary to a Denial Order. See part 764 of the
EAR for a description of Denial Orders.
(3) You know that the item will be reexported and such reexport is
subject to one of the ten General Prohibitions, is not eligible for a
License Exception, and has not been authorized by BXA.
(4) You know that the export will be used for certain end-uses or
is for certain end-users as provided and prohibited in part 744 of the
EAR.
(5) The item is for surreptitious interception of wire or oral
communications controlled under ECCN 5A980, unless you are a U.S.
Government agency (see Sec. 740.6(b)(2)(ii) of this part, Governments
(GOVT)).
(6) The commodity you are shipping is a specially designed crime
control and detection instrument or equipment as described in
Sec. 742.7 of the EAR and you are not shipping to Iceland, New Zealand,
or countries listed in Country Group A:1 (see Supplement No. 1 to part
740), unless the shipment is authorized under License Exception BAG,
Sec. 740.9(e) of this part (shotguns and shotgun shells).
(b) All License Exceptions are subject to revision, suspension, or
revocation, in whole or in part, without notice. It may be necessary
for BXA 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.
Sec. 740.3 License Exceptions based on the Commerce Control List
(LST).
These License Exceptions are listed on the CCL. Each is designated
by a three-letter symbol that appears both in the paragraph of this
section describing its terms and on the CCL. All list-based License
Exceptions use the symbol ``LST'' on shipping documentation for export
clearance purposes.
(a) Shipments of Limited Value (LVS). (1) Scope. License Exception
LVS authorizes the export and reexport in a single shipment of eligible
commodities as identified by ``LVS--$(value limit)'' on the CCL.
(2) Eligible Destinations. This License Exception is available for
all destinations in Country Group B (see
[[Page 12769]]
Supplement No. 1 to part 740), provided that the net value of the
commodities included in the same order and controlled under the same
ECCN entry on the CCL does not exceed the amount specified in the LVS
paragraph for that entry.
(3) Definitions. (i) Order. The term ``order'' as used in this
Sec. 740.3 means a communication from a person in a foreign country, or
that person's representative, expressing an intent to import
commodities from the exporter. Although all of the details of the order
need not be finally determined at the time of export, terms relating to
the kinds and quantities of the commodities to be exported, as well as
the selling prices of these commodities, must be finalized before the
goods can be exported under License Exception LVS.
(ii) Net value: for LVS shipments. The actual selling price of the
commodities that are included in the same order and are controlled
under the same entry on the CCL, less shipping charges, or the current
market price of the commodities to the same type of purchaser in the
United States, whichever is the larger. In determining the actual
selling price or the current market price of the commodity, the value
of containers in which the commodity is being exported may be excluded.
The value for LVS purposes is that of the controlled commodity that is
being exported, and may not be reduced by subtracting the value of any
content that would not, if shipped separately, be subject to licensing.
Where the total value of the containers and their contents must be
shown on Shipper's Export Declarations under one Schedule B Number, the
exporter, in effecting a shipment under this License Exception, must
indicate the ``net value'' of the contained commodity immediately below
the description of the commodity.
(iii) Single shipment. All commodities moving at the same time from
one exporter to one consignee or intermediate consignee on the same
exporting carrier even though these commodities will be forwarded to
one or more ultimate consignees. Commodities being transported in this
manner will be treated as a single shipment even if the commodities
represent more than one order or are in separate containers.
(4) Additional eligibility requirements and restrictions. (i)
Eligible orders. To be eligible for this License Exception, orders must
meet the following criteria:
(A) Orders must not exceed the applicable ``LVS'' dollar value
limits. An order is eligible for shipment under LVS when the ``net
value'' of the commodities controlled under the same entry on the CCL
does not exceed the amount specified in the ``LVS'' paragraph for that
entry. An LVS shipment may include more than one eligible order because
LVS eligibility is based on the ``net value'' of the commodities in
each order, instead of the ``net value'' of the commodities in the
shipment.
(B) Orders may not be split to meet the applicable LVS dollar
limits. An order that exceeds the applicable LVS dollar value limit may
not be misrepresented as two or more orders, or split among two or more
shipments, to give the appearance of meeting the applicable LVS dollar
value limit. However an order that meets all the LVS eligibility
requirements, including the applicable LVS dollar value limit, may be
split among two or more shipments.
(C) Orders must be legitimate. Exporters and consignees may not,
either collectively or individually, structure or adjust orders to meet
the applicable LVS dollar value limits.
(ii) Restriction on annual value of LVS orders. The total value of
exports per calendar year to the same ultimate or intermediate
consignee of commodities classified under a single ECCN may not exceed
12 times the LVS value limit for that ECCN. This annual value limit
applies to shipments to the same ultimate consignee even though the
shipments are made through more than one intermediate consignee. There
is no restriction on the number of orders that may be included in a
shipment, except that the annual value limit per ECCN must not be
exceeded.
(iii) Orders where two or more LVS dollar value limits apply. An
order may include commodities that are controlled under more than one
entry on the CCL. In this case, the net value of the entire order may
exceed the LVS dollar value for any single entry on the CCL. However,
the net value of the commodities controlled under each ECCN entry shall
not exceed the LVS dollar value limit specified for that entry.
Example to paragraph (iii): 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.
(iv) Prohibition against evasion of license requirements. Any
activity involving the use of this License Exception to evade license
requirements is prohibited. Such devices include, but are not limited
to, the splitting or structuring of orders to meet applicable LVS
dollar value limits, as prohibited by paragraphs (a)(4)(i) (B) and (C)
of this section.
(5) Reexports. Commodities may be reexported under this License
Exception, provided that they could be exported from the United States
to the new country of destination under LVS.
(b) Shipments to Country Group B countries (GBS). License Exception
GBS authorizes exports and reexports to Country Group B (see Supplement
No. 1 to part 740) of those commodities controlled for national
security reasons and identified by ``GBS--Yes'' on the CCL.
(c) Civil end-users (CIV). (1) Scope. License Exception CIV
authorizes exports and reexports of national security controlled items
identified by ``CIV--Yes'' on the CCL only to civil end-users for civil
end-uses in Country Group D:1. (See Supplement No. 1 to part 740.) CIV
may not be used for exports and reexports to military end-users or to
known military uses. Such exports and reexports will continue to
require a license. In addition to conventional military activities,
military uses include any proliferation activities described and
prohibited by part 744 of the EAR. A license is also required for
transfer to military end-users or end-uses in eligible countries of
items exported under CIV.
(d) Technology and software under restriction (TSR). (1) Scope.
License Exception TSR permits exports and reexports of technology and
software subject to national security controls and identified by
``TSR--Yes'' in entries on the CCL only to the destinations in Country
Group B. (See Supplement No. 1 to part 740.) A written assurance is
required from the consignee before exporting under this License
Exception.
(i) Required assurance for export of technology. You may not export
or reexport technology under this License Exception until you have
received from the importer a written assurance that, without a BXA
license or License Exception, the importer will not:
(A) Reexport or release the technology to a national of a country
in Country Groups D:1 or E:2; or
(B) 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, Sec. 736.2(b)(3) of the EAR); or
[[Page 12770]]
(C) If the direct product of the technology is a complete plant or
any major component of a plant, 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 or is subject to State Department controls under the U.S. Munitions
List (22 CFR part 121).
(ii) Required assurance for export of software. You may not export
or reexport software under this License Exception until you have
received from the importer a written assurance that, without a BXA
license or License Exception, the importer will neither:
(A) 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
(B) 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, Sec. 736.2(b)(3) of the EAR).
(iii) Form of written assurance. The required assurance may be made
in the form of a letter or any other written communication from the
importer, or the assurance may be incorporated into a licensing
agreement that specifically includes the assurances. An assurance
included in a licensing agreement is acceptable only if the agreement
specifies that the assurance will be honored even after the expiration
date of the licensing agreement. If such a written assurance is not
received, License Exception TSR is not applicable and a license is
required. The license application must include a statement explaining
why assurances could not be obtained.
(iv) Other License Exceptions. The requirements in this License
Exception do not apply to the export of technology or software under
other License Exceptions, or to the export of technology or software
included in an application for the foreign filing of a patent, provided
the filing is in accordance with the regulations of the U.S. Patent
Office.
(2) Reserved.
(e) Computers (CTP). (1) Scope. License Exception CTP authorizes
exports and reexports of computers and specially designed components
therefor, exported or reexported separately or as part of a system, and
related equipment therefor when exported or reexported with these
computers as part of a system, for consumption in Computer Tier
countries as provided by this section. You may not use this License
Exception to export or reexport items that you know will be used to
enhance the CTP beyond the eligibility limit allowed to your country of
destination. When evaluating your computer to determine License
Exception CTP eligibility, use the CTP parameter to the exclusion of
other technical parameters for computers classified under ECCN 4A003,
except of parameters specified as Missile Technology (MT) concerns,
4A003.e (equipment performing analog-to-digital conversions exceeding
the limits in ECCN 3A001.a.5), and graphic accelerators or graphic
coprocessors exceeding a ``3-D vector rate'' of 10,000,000. This
License Exception does not authorize export or reexport of such graphic
accelerators or coprocessors, or of computers controlled for MT
reasons.
(2) Computer Tier 1. (i) Eligible countries. The countries that are
eligible to receive exports and reexports under this License Exception
are Australia, Austria, Belgium, Denmark, Finland, France, Germany,
Greece, the Holy See, Iceland, Ireland, Italy, Japan, Liechtenstein,
Luxembourg, Mexico, Monaco, Netherlands, New Zealand, Norway, Portugal,
San Marino, Spain, Sweden, Switzerland, Turkey, and the United Kingdom.
(ii) Eligible Computers. The computers eligible for License
Exception CTP are those with a CTP greater than 2,000 MTOPS.
(3) Computer Tier 2. (i) Eligible countries. The countries that are
eligible to receive exports under this License Exception include
Antigua and Barbuda, Argentina, Bahamas, Barbados, Bangladesh, Belize,
Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei, Burkina Faso, Burma,
Burundi, Cambodia, Cameroon, Cape Verde, Central Africa, Chad, Chile,
Colombia, Congo, Costa Rica, Cote d'Ivoire, Cyprus, Czech Republic,
Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea,
Eritrea, Ethiopia, Fiji, Gabon, Gambia (The), Ghana, Grenada,
Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hong Kong,
Hungary, Indonesia, Jamaica, Kenya, Kiribati, Korea (Republic of),
Laos, Lesotho, Liberia, Madagascar, Malawi, Malaysia, Maldives, Mali,
Malta, Marshall Islands, Mauritius, Micronesia (Federated States of),
Mozambique, Namibia, Nauru, Nepal, Nicaragua, Niger, Nigeria, Palau,
Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Rwanda,
St. Kitts & Nevis, St. Lucia, St. Vincent and Grenadines, Sao Tome &
Principe, Senegal, Seychelles, Sierra Leone, Singapore, Slovak
Republic, Slovenia, Solomon Islands, Somalia, South Africa, Sri Lanka,
Surinam, Swaziland, Taiwan, Tanzania, Togo, Tonga, Thailand, Trinidad
and Tobago, Tuvalu, Uganda, Uruguay, Venezuela, Western Sahara, Western
Samoa, Zaire, Zambia, and Zimbabwe.
(ii) Eligible computers. The computers eligible for License
Exception CTP are those having a Composite Theoretical Performance
(CTP) greater than 2000, but equal to or less than 10,000 Millions of
Theoretical Operations Per Second (MTOPS).
(4) Computer Tier 3. (i) Eligible countries. The countries that are
eligible to receive exports and reexports under this License Exception
are Afghanistan, Albania, Algeria, Andorra, Angola, Armenia,
Azerbaijan, Bahrain, Belarus, Bosnia & Herzegovina,1 Bulgaria,
China (People's Republic of), Comoros, Croatia,2 Djibouti, Egypt,
Estonia, Georgia, India, Israel, Jordan, Kazakhstan, Kuwait,
Kyrgyzstan, Latvia, Lebanon, Lithuania, Macedonia (The Former Yugoslav
Republic of), Mauritania, Moldova, Mongolia, Morocco, Oman, Pakistan,
Qatar, Romania, Russia, Saudi Arabia, Serbia & Montenegro, Tajikistan,
Tunisia, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan,
Vanuatu, Vietnam, and Yemen.
\1\ Except as provided in 31 CFR part 585.
\2\ Except as provided in 31 CFR part 585.
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(ii) Eligible computers. The computers eligible for License
Exception CTP are those having a Composite Theoretical Performance
(CTP) greater than 2,000 Millions of Theoretical Operations Per Second
(MTOPS), but less than or equal to 7,000 MTOPS.
(iii) Eligible exports. Only exports and reexports to permitted
end-users and end-uses located in countries in Computer Tier 3. License
Exception CTP does not authorize exports and reexports to Computer Tier
3 for military end-users and end-uses and nuclear, chemical,
biological, or missile end-users and end-uses defined in part 744 of
the EAR. Exports and reexports under this License Exception may not be
made to known military end-users or to known military end-uses or known
proliferation end-uses or end-users defined in part 744 of the EAR.
Such exports and reexports will continue to require a license and will
be considered on a case-by-case basis. Retransfers to military end-
users or end-uses and defined proliferation end-users and end-uses in
eligible countries are strictly prohibited without prior authorization.
(5) Restrictions. (i) Computers eligible for License Exception CTP
may not be accessed either physically or computationally by nationals
of Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria, except that
commercial
[[Page 12771]]
consignees described in Sec. 742.12 of the EAR are prohibited only from
giving such nationals user-accessible programmability.
(ii) Computers, software and specially designed technology eligible
for License Exception CTP may not be reexported/retransferred without
prior authorization from BXA i.e., a license, a permissive reexport,
another License Exception, or ``No License Required''. This restriction
must be conveyed to the consignee, via the Destination Control
Statement, see Sec. 758.5 of the EAR.
(6) Recordkeeping requirements. In addition to the recordkeeping
requirements in part 762 of the EAR, you must keep records of each
export under License Exception CTP. These records will be made
available to the U.S. Government on request. The records must include
the following information:
(i) Date of shipment;
(ii) Name and address of the end-user and each intermediate
consignee;
(iii) CTP of each computer in shipment;
(iv) Volume of computers in shipment;
(v) Dollar value of shipment; and
(vi) End-use.
Sec. 740.4 Temporary imports, exports, and reexports (TMP).
These License Exceptions authorize various temporary exports and
reexports (TEMP); exports and reexports of items temporarily in the
United States (TUS); and exports and reexports of beta test software
(BETA). License Exceptions in Sec. 740.4 of this part use the symbol
``TMP'' for export clearance purposes.
(a) Temporary exports (TEMP). (1) Scope. You may export and
reexport commodities and software for temporary use abroad (including
use in international waters) subject to the conditions and exclusions
described in paragraph (a)(4) of this section. Commodities and software
shipped under this License Exception must be returned to the country
from which they were exported as soon as practicable but, except in
circumstances described in this section, no later than one year from
the date of export. This requirement does not apply if the commodities
and software are consumed or destroyed in the normal course of
authorized temporary use abroad or an extension or other disposition is
permitted by the EAR or in writing by BXA.
(2) Eligible commodities and software. The following commodities
and software are eligible to be shipped under this License Exception:
(i) Tools of trade. Usual and reasonable kinds and quantities of
commodities and software for use by employees of the exporter in a
lawful enterprise or undertaking of the exporter. Eligible commodities
and software may include, but are not limited to, such equipment as is
necessary to commission or service goods, provided that the equipment
is appropriate for this purpose and that all goods to be commissioned
or serviced are of foreign origin, or if subject to the EAR, have been
legally exported or reexported. The commodities and software must
remain under the effective control of the exporter or the exporter's
employee. The shipment of commodities and software may accompany the
individual departing from the United States or may be shipped
unaccompanied within one month before the individual's departure from
the United States, or at any time after departure. No tools of the
trade may be taken to Country Group E:2, and only equipment necessary
to commission or service goods may be taken as tools of trade to
Country Group D:1. (See Supplement No. 1 to part 740.)
(ii) Kits consisting of replacement parts. Kits consisting of
replacement parts may be exported or reexported under this section to
all destinations, except Country Group E:2 (see Supplement No. 1 to
part 740), provided that:
(A) The parts would qualify for shipment under paragraph (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 RPL and the defective parts returned (see PTS, Sec. 740.5(a)
of this part).
(iii) Exhibition and demonstration in Country Group B. Commodities
and software for exhibition or demonstration in Country Group B (see
Supplement No. 1 to part 740) may be exported or reexported under this
provision provided that the exporter maintains ownership of the
commodities and software while they are abroad and provided that the
exporter, an employee of the exporter, or the exporter's designated
sales representative retains effective control over the commodities and
software while they are abroad. The commodities and software may not be
used for their intended purpose while abroad, except to the minimum
extent required for effective demonstration. The commodities and
software may not be exhibited or demonstrated at any one site more than
120 days after installation and debugging, unless authorized by BXA.
However, before or after an exhibition or demonstration, pending
movement to another site, return to the United States or the foreign
reexporter, or BXA approval for other disposition, the commodities and
software may be placed in a bonded warehouse or a storage facility
provided that the exporter retains effective control over their
disposition. The export documentation for this type of transaction must
show the U.S. exporter as ultimate consignee, in care of the person who
will have control over the commodities and software abroad.
(iv) Inspection and calibration. Commodities to be inspected,
tested, calibrated or repaired abroad.
(v) Containers. Containers for which another License Exception is
not available and that are necessary for export of commodities.
However, this License Exception does not authorize the export of the
container's contents, which, if not exempt from licensing, must be
separately authorized for export under either a License Exception or a
license.
(vi) Broadcast material. (A) Video tape containing program material
recorded in the country of export to be publicly broadcast in another
country.
(B) Blank video tape (raw stock) for use in recording program
material abroad.
(vii) Assembly in Mexico. Commodities to be exported to Mexico
under Customs entries that require return to the United States after
processing, assembly, or incorporation into end products by companies,
factories, or facilities participating in Mexico's in-bond
industrialization program (Maquilladora), provided that all resulting
end-products (or the commodities themselves) are returned to the United
States.
(viii) News media. (A) Commodities necessary for news-gathering
purposes (and software necessary to use such commodities) may accompany
``accredited'' news media personnel (i.e., persons with credentials
from a news gathering or reporting firm) to Country Groups D:1 or E:2
(see Supplement No. 1 to part 740) if the commodities:
(1) Are retained under ``effective control'' of the exporting news
gathering firm;
(2) Remain in the physical possession of the news media personnel.
The term physical possession for purposes of this paragraph
(a)(2)(viii), news media, is defined as maintaining effective measures
to prevent unauthorized access (e.g., securing equipment in
[[Page 12772]]
locked facilities or hiring security guards to protect the equipment);
and
(3) Are removed with the news media personnel at the end of the
trip.
(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 Export Administration, Office of Enforcement
Support, Room H4069, 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 this
License Exception is being used properly.
(C) Commodities or software necessary for news-gathering purposes
that accompany news media personnel to all other destinations shall be
exported or reexported under paragraph (a)(2)(i), tools of trade, of
this section if owned by the news gathering firm, or if they are
personal property of the individual news media personnel. Note that
paragraphs (a)(2)(i), tools of trade and (a)(2)(viii), news media, of
this section do not preclude independent ``accredited'' contract
personnel, who are under control of news gathering firms while on
assignment, from utilizing these provisions, provided that the news
gathering firm designate an employee of the contract firm to be
responsible for the equipment.)
(3) Special restrictions. (i) Destinations. (A) No commodity or
software may be exported under this License Exception to Country Group
E:2 (see Supplement No. 1 to part 740) except as permitted by paragraph
(a)(2)(viii), news media, of this section;
(B) No commodity or software may be exported under this License
Exception to Country Group D:1 (see Supplement No. 1 to part 740)
except:
(1) Commodities and software exported under paragraph (a)(2)(viii),
news media, of this section;
(2) Commodities and software exported under paragraph (a)(2)(i),
tools of trade, of this section; and
(3) Commodities exported as kits of replacement parts, consistent
with the requirements of paragraph (a)(2)(ii) of this section.
(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) Ineligible commodities or software. Commodities or software
that will be used outside of Country Group A:4 (Nuclear Suppliers
Group) (see Supplement No. 1 to part 740) either directly or indirectly
in any sensitive nuclear activity as described in Sec. 744.2 of the EAR
may not be exported or reexported to any destination under this License
Exception.
(iii) Use or disposition. No commodity or software may be exported
or reexported under this License Exception if:
(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 of this License Exception; or
(C) The commodity or software is for lease or rental abroad.
(4) Return or disposal of commodities and software. All commodities
and software exported or reexported under this License Exception must,
if not consumed or destroyed in the normal course of authorized
temporary use abroad, be returned as soon as practicable but no later
than one year after the date of export, to the United States or other
country from which the commodities and software were exported under
this License Exception, or shall be disposed of or retained in one of
the following ways:
(i) Permanent export or reexport. If the exporter or the reexporter
wishes to sell or otherwise dispose of the commodities or software
abroad, except as permitted by this or other applicable License
Exception, the exporter must request authorization by submitting a
license application to BXA at the address listed in part 748 of the
EAR. (See part 748 of the EAR for more information on license
applications.) The request should comply with all applicable provisions
of the EAR covering export directly from the United States to the
proposed destination. The request must also be supported by any
documents that would be required in support of an application for
export license for shipment of the same commodities or software
directly from the United States to the proposed destination. BXA will
advise the exporter of its decision.
(ii) Use of a license. An outstanding license may also be used to
dispose of commodities or software covered by the License Exception
described in this section, provided that the outstanding license
authorizes direct shipment of the same commodity or software to the
same new ultimate consignee in the new country of destination.
(iii) Authorization to retain abroad beyond one year. If the
exporter wishes to retain a commodity or software abroad beyond the 12
months authorized by paragraph (a) of this section, the exporter must
request authorization by submitting Form BXA-748P, Multipurpose
Application, 90 days prior to the expiration of the 12 month period.
The request must be sent to BXA at the address listed in part 748 of
the EAR and should include the name and address of the exporter, the
date the commodities or software were exported, a brief product
description, and the justification for the extension. If BXA approves
the extension request, the exporter will receive authorization for a
one-time extension not to exceed six months. BXA normally will not
allow an extension for commodities or software that have been abroad
more than 12 months, nor will a second six month extension be
authorized. Any request for retaining the commodities or software
abroad for a period exceeding 18 months must be made in accordance with
the requirements of paragraph (a)(4)(i) of this section.
(5) Reexports. Commodities and software legally exported from the
United States may be reexported to a new country(ies) of destination
under this License Exception provided its terms and conditions are met
and the commodities and software are returned to the country from which
the reexport occurred.
(b) Exports of items temporarily in the United States (TUS).
Scope. License Exception TUS, describes the conditions for
exporting foreign-origin items temporarily in the United States.
Specifically, this License Exception includes the export of items
moving in transit through the United States, imported for display at a
U.S. exhibition or trade fair, returned because unwanted, or returned
because refused entry.
Note 1 to paragraph (b) of this section: 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.
Note 2 to paragraph (b) of this section: 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
[[Page 12773]]
vessel or aircraft on which they entered, and (b) they are not
originally manifested to the United States.)
(1) Items moving in transit through the United States. Subject to
the following conditions, this License Exception authorizes export of
items moving in transit through the United States under a
Transportation and Exportation (T. & E.) customs entry or an Immediate
Exportation (I.E.) customs entry made at a U.S. Customs Office.
(i) Items controlled for national security, nuclear proliferation,
missile technology, or chemical and biological weapons reasons may not
be exported to Country Group D:1, 2, 3, or 4 (see Supplement No. 1 to
part 740), respectively, under License Exception TUS.
(ii) Items may not be exported to Country Group E:2 under this
License Exception.
(iii) The following may not be exported in transit from the United
States under License Exception TUS:
(A) Commodities shipped to the United States under an International
Import Certificate, Form BXA-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 this License Exception 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 applicable U.S. License Exception other than
TUS 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 7513,3 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.
\3\ The complete names of these forms are: Commerce Form 7513,
``Shipper's Export Declaration for Intransit Goods''; Customs Form
7512, ``Transportation Entry and Manifest of Goods Subject to
Customs Inspection and Permit.''
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(2) Items imported for display at U.S. exhibitions or trade fairs.
Subject to the following conditions, License Exception TUS authorizes
the export of items that were imported into the United States for
display at an exhibition or trade fair and were either entered under
bond or permitted temporary free import under bond providing for their
export and are being exported in accordance with the terms of that
bond.
(i) Items may be exported to the country from which imported into
the United States. However, items originally imported from Cuba or
North Korea 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 (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, missile
technology, chemical and biological weapons reasons, or nuclear
proliferation, respectively.
(3) Return of unwanted shipments. A foreign-origin item may be
returned under this License Exception to the country from which it was
imported if its characteristics and capabilities have not been enhanced
while in the United States. No foreign-origin items may be returned to
Cuba, Libya, or North Korea.
(4) Return of shipments refused entry. Shipments of items refused
entry by the U.S. Customs Service, the Food and Drug Administration, or
other U.S. Government agency may be returned to the country of origin,
except to:
(i) A destination in Cuba, Libya, or North Korea; 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) Exports of beta test software (BETA). (1) Scope. This License
Exception authorizes exports and reexports to eligible countries of
beta test software intended for distribution to the general public.
(2) Eligible countries. The countries that are eligible to receive
exports and reexports under License Exception BETA are all countries
except those Country Groups E:2.
(3) Eligible software. All software that is controlled by the CCL
(part 774 of the EAR), and under Commerce licensing jurisdiction, is
eligible for export and reexport under this License Exception, subject
to the restrictions in this section.
(4) Conditions for use. Any beta test software program may be
exported or reexported to eligible countries if all of the conditions
under this section are met:
(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 found in Supplement No. 2 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) Importer Statement. Prior to shipping any eligible software
under BETA, the exporter or reexporter must obtain the following
statement from the testing consignee, which may be included in a
contract, non-disclosure agreement, or other document that identifies
the importer, the software to be exported, the country of destination,
and the testing consignee.
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) Use limitations. Only testing consignees that provide the
importer statement required by paragraph (c)(5) of this section may
execute any software received under this License Exception.
(7) Return or disposal of software. All beta test software exported
under this License Exception must be destroyed abroad or returned to
the exporter within 30 days of the end of the beta test period as
defined by the software producer or, if the software producer does not
define a test period, within 30 days of completion of the consignee's
role in the test. Among other methods, this requirement may be
satisfied by a software module that will destroy the software and all
its copies at or before the end of the beta test period.
Sec. 740.5 Servicing and replacement of parts and equipment (RPL).
These License Exceptions authorize exports and reexports associated
with one-for-one replacement of parts (PTS) or servicing and
replacement of equipment (SNR). The symbol ``RPL'' is
[[Page 12774]]
used on shipping documentation for export clearance purposes.
(a) Parts (PTS). (1) Scope. This License Exception authorizes the
export and reexport of one-for-one replacement parts for previously
exported equipment.
(2) One-for-one replacement of parts. (i) The term ``replacement
parts'' as used in this section means parts needed for the immediate
repair of equipment, including replacement of defective or worn parts.
(It includes subassemblies but does not include test instruments or
operating supplies). (The term ``subassembly'' means a number of
components assembled to perform a specific function or functions within
a commodity. One example would be printed circuit boards with
components mounted thereon. This definition does not include major
subsystems such as those composed of a number of subassemblies.) Items
that improve or change the basic design characteristics, e.g., as to
accuracy, capability, performance or productivity, of the equipment
upon which they are installed, are not deemed to be replacement parts.
For kits consisting of replacement parts, consult Sec. 740.4(a)(2)(ii)
of this part (TEMP).
(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. 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) Exclusions. (i) No replacement parts may be exported under this
License Exception to repair a commodity exported under a license if
that license included a condition that any subsequent replacement parts
must be exported only under a license.
(ii) No parts may be exported under this License Exception 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 under PTS to any destination except
Iceland, New Zealand, or the countries listed in Country Group A:1 (see
Supplement No. 1 to part 740) if the item is to be incorporated into or
used in nuclear weapons, nuclear explosive devices, nuclear testing
related to activities described in Sec. 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 Sec. 744.2(a) of the EAR.
(iv) No replacement parts shall be exported under this License
Exception to Cuba, Iran, Iraq, Sudan, Syria, Libya, or North Korea
(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) 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 Sec. 734.4(b)(2) (ii) and (iii) of the EAR.
(4) Reexports. Parts exported from the United States may be
reexported to a new country of destination, provided that the
restrictions described in paragraphs (a) (2) and (3) of this section
are met. A party reexporting U.S.-origin one-for-one replacement parts
shall ensure that the commodities being repaired were shipped to their
present location in accordance with U.S. law and continue to be legally
used, and that either before or promptly after reexport of the
replacement parts, the replaced parts are either destroyed or returned
to the United States, or to the foreign firm in Country Group B (see
Supplement No. 1 to part 740) that shipped the replacement parts.
(b) Servicing and Replacement (SNR). (1) Scope. This License
Exception SNR authorizes the export and reexport of items that were
returned to the United States for servicing and the replacement of
defective or unacceptable U.S.-origin commodities and software.
(2) Commodities and software sent to a United States or foreign
party for servicing. (i) Definition. ``Servicing'' as used in this
section means inspection, testing, calibration or repair, including
overhaul and reconditioning. The servicing shall not have improved or
changed the basic characteristics, e.g., as to accuracy, capability,
performance, or productivity of the commodity or software as originally
authorized for export or reexport.
(ii) Return of serviced commodities and software. When the serviced
commodity or software is returned, it may include any replacement or
rebuilt parts necessary to its repair and may be accompanied by any
spare part, tool, accessory, or other item that was sent with it for
servicing.
(iii) Commodities and software imported from Country Group D:1
except the PRC. Commodities and software legally exported or reexported
to a consignee in Country Group D:1 (except the People's Republic of
China (PRC)) (see Supplement No. 1 to part 740) that are sent to the
United States or a foreign party for servicing may be returned under
this License Exception to the country from which it was sent, provided
that both of the following conditions are met:
(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) Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. No
repaired commodity or software may be exported or reexported to Cuba,
Iran, Iraq, Libya, North Korea, Sudan, or Syria under this section.
(3) Replacements for defective or unacceptable U.S.-origin
equipment.
(i) Subject to the following conditions, commodities or software
may be exported or reexported to replace defective or otherwise
unusable (e.g., erroneously supplied) items.
(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 BXA.
(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
[[Page 12775]]
originally approved for export or reexport under a license issued by
BXA.
(D) No shipment may be made to Cuba, Iran, Iraq, Libya, North
Korea, Sudan, or Syria, 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) Special conditions applicable to exports to Country Group B
and Country Group D:1. (See Supplement No. 1 to part 740.) In addition
to the general conditions in paragraph (b)(3)(i) of this section, the
following conditions apply to exports or reexports of replacements for
defective or unacceptable U.S.-origin commodities or software to a
destination in Country Group B or Country Group D:1:
(A) By making such an export or reexport, the exporter represents
that all the requirements of paragraph (c) of this section 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 U.S.
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.
Sec. 740.6 Governments and international organizations (GOV).
These Licenses Exceptions authorize exports and reexports for
international nuclear safeguards (SAFE); U.S. government agencies or
personnel, and agencies of cooperating governments (GOVT). The License
Exceptions in Sec. 740.6 of this part use the symbol ``GOV'' for export
clearance purposes.
(a) International Safeguards (SAFE). (1) Scope. You may export and
reexport commodities or software to the International Atomic Energy
Agency (IAEA) and the European Atomic Energy Community (Euratom), and
reexports by IAEA and Euratom for official international safeguard use,
as follows:
(i) Commodities or software consigned to the IAEA at its
headquarters in Vienna, 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, services, and information 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 establishes and
administers safeguards designed to ensure that special nuclear
materials and other related nuclear facilities, services, and
information are not diverted from peaceful purposes to non-peaceful
purposes.
(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 Sec. 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) Exclusions. No computers with a CTP greater than 10,000 MTOPS
may be exported or reexported to countries listed in Computer Tiers 3
or 4 under License Exception SAFE. See Sec. 742.12 of the EAR for a
complete list of the countries within Computer Tiers 3 and 4.
(b) Governments (GOVT). (1) Scope. License Exception (GOVT)
authorizes exports and reexports of the items listed in paragraph
(b)(2) of this section to personnel and agencies of the U.S. Government
or agencies of cooperating governments.
(2) Eligibility. (i) Items for personal use by personnel and
agencies of the U.S. Government. License Exception GOVT is available
for items in quantities sufficient only for the personal use of members
of the U.S. Armed Forces or civilian personnel of the U.S. Government
(including U.S. representatives to public international organizations),
and their immediate families and servants. Items for personal use
include household effects, food, beverages, and other daily
necessities.
(ii) Items for official use by personnel and agencies of the U.S.
Government. This License Exception is available for items consigned to
and for the official use of any agency of the U.S. Government.
(iii) Items for official use within national territory by agencies
of cooperating governments. This License Exception is available for all
items consigned to and for the official use of any agency of a
cooperating government within the territory of any cooperating
government, except:
(A) Computers with a CTP greater than 10,000 MTOPS when destined
for Argentina, Hong Kong, South Korea, Singapore, or Taiwan;
(B) Items identified on the Commerce Control List as controlled for
missile technology (MT), chemical and biological warfare (CB), or
nuclear nonproliferation (NP) reasons; or
(C) Regional stability items controlled under Export Control
Classification Numbers (ECCNs) 6A002, 6A003, 6D102, 6E001, 6E002,
7D001, 7E001, 7E002, and 7E101, as described in Sec. 742.6(a)(1) of the
EAR.
(iv) Diplomatic and consular missions of a cooperating government.
This License Exception is available for all items consigned to and for
the official use of a diplomatic or consular mission of a cooperating
government located in any country in Country Group B (see Supplement
No. 1 to part 740), except:
(A) Computers with a CTP greater than 10,000 MTOPS when destined
for Argentina, Hong Kong, South Korea, Singapore, or Taiwan;
(B) Items identified on the Commerce Control List as controlled for
missile technology (MT), chemical and biological warfare (CB), or
nuclear nonproliferation (NP) reasons; or
[[Page 12776]]
(C) Regional stability items controlled under Export Control
Classification Numbers (ECCNs) 6A002, 6A003, 6D102, 6E001, 6E002,
7D001, 7E001, 7E002, and 7E101, as described in Sec. 742.6(a)(1) of the
EAR.
(3) Definitions. (i) ``Agency of the U.S. Government'' includes all
civilian and military departments, branches, missions, government-owned
corporations, and other agencies of the U.S. Government, but does not
include such national agencies as the American Red Cross or
international organizations in which the United States participates
such as the Organization of American States. Therefore, shipments may
not be made under this License Exception to these non-government
national or international agencies, except as provided in (b)(2)(i) of
this section for U.S. representatives to these organizations.
(ii) ``Agency of a cooperating government'' includes all civilian
and military departments, branches, missions, and other governmental
agencies of a cooperating national government. Cooperating governments
are the national governments of countries listed in Country Group A:1
(see Supplement No. 1 to part 740) and the national governments of
Argentina, Austria, Finland, Ireland, Korea (Republic of), Singapore,
Sweden, and Switzerland.
Sec. 740.7 Gift parcels and humanitarian donations (GFT).
(a) Gift parcels (GIFT). (1) Scope. This License Exception (GIFT)
authorizes exports and reexports of gift parcels by an individual
(donor) addressed to an individual, or a religious, charitable or
educational organization (donee) located in any destination for the use
of the donee or the donee's immediate family (and not for resale). The
gift parcel must be provided free of charge to the donee. However,
payment by the donee of any handling charges or of any fees levied by
the importing country (e.g., import duties, taxes, etc.) is not
considered to be a cost to the donee for purposes of this definition of
``gift parcel.'' 4
\4\ Many foreign countries permit the entry, duty-free, of gift
parcels that conform to regulations regarding contents and marking.
To secure this advantage, the sender should show the words ``U.S.A.
Gift Parcel'' on the addressee side of the package and on any
required customs declarations. Information regarding the foreign
postal regulations is available at local post offices. Senders of
gift parcels who wish information regarding import duties of a
foreign country should contact the nearest Commercial Office,
Consulate or Embassy of the country concerned.
Note to paragraph (a) of this section: A gift parcel, within the
context of this License Exception GIFT, 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 Sec. 734.2(b) of
the EAR, must be licensed by BXA. (See Sec. 748.9(e) of the EAR for
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licensing of multiple gift parcels).
(2) Commodity, value and other limitations. (i) Eligible
commodities. The commodities eligible for this License Exception are as
follows:
(A) The commodity must not be controlled for chemical and
biological weapons (CB), missile technology (MT), national security
(NS), or nuclear proliferation (NP) (see Commerce Control List, part
774 of the EAR); and
(B) The commodity must be of a type and in quantities normally
given as gifts between individuals.
(1) For Cuba, the only commodities that may be included in a gift
parcel are the following items from Supplement No. 1 to part 746 of the
EAR: food, vitamins, seeds, medicines, medical supplies and devices,
hospital supplies and equipment, equipment for the handicapped,
clothing, personal hygiene items, veterinary medicines and supplies,
fishing equipment and supplies, soap-making equipment, and in addition
receive-only radio equipment for reception of commercial/civil AM/FM
and short wave publicly available frequency bands, and batteries for
such equipment.
(2) For all other destinations, eligible commodities include all
items described in paragraph (a)(2)(i)(B)(1) of this section as well as
all other items normally sent as gifts. Gold bullion, gold taels, and
gold bars are prohibited as are items intended for resale or reexport.
Example to paragraph (a) of this section. A watch or piece of
jewelry is normally sent as a gift. However, multiple watches,
either in one package or in subsequent shipments, would not qualify
for such gift parcels because the quantity exceeds that normally
given between individuals. Similarly, a sewing machine or bicycle,
within the dollar limits of this License Exception, may be an
appropriate gift. However, subsequent shipments of the same item to
the same donee would not be a gift normally given between
individuals.
(3) For purposes of paragraph (a)(2)(ii)(B) of this section,
clothing is appropriate, except that export of military wearing apparel
to Country Group D:1 or E:2 under this License Exception is
specifically prohibited, regardless of whether all distinctive U.S.
military insignia, buttons, and other markings are removed.
(ii) Import requirements. The commodities must be acceptable in
type and quantity by the recipient country for import as gifts.
Commodities exceeding the import limits may not be included in gift
parcels.
(iii) Frequency. Except for gift parcels of food to Cuba, not more
than one gift parcel may be sent from the same donor to the same donee
in any one calendar month. Parties seeking authorization to exceed this
limit due to compelling humanitarian concerns (e.g., gifts of medicine
to relatives) should submit a license application (BXA-748P) with
complete justification.
(iv) Value. The combined total domestic retail value of all
commodities included in a gift parcel may not exceed $400, except for
gift parcels to Cuba where the value of non-food items may not exceed
$200. There is no dollar value limit on food contained in a gift parcel
to Cuba.
(3) How to export gift parcels. (i) A gift parcel must be sent
directly to the donee by the individual donor, or for such donor by a
commercial or other gift-forwarding service or organization. Each gift
parcel must show, on the outside wrapper, the name and address of the
donor, as well as the name and address of the donee, regardless of
whether sent by the donor or by a forwarding service.
(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) Humanitarian donations (NEED). (1) Scope. License Exception
NEED authorizes exports by groups or organizations of donations to meet
basic human needs when those groups or organizations have experience in
maintaining a verifiable system of distribution that ensures delivery
to the intended beneficiaries.
(2) Basic human needs. Under License Exception NEED, basic human
needs are defined as those requirements essential to individual well-
being: health, food, clothing, shelter, and education. These needs are
considered to extend beyond those of an emergency nature and those that
meet direct needs for mere subsistence.
(3) Eligible donors. Eligible donors are U.S. charitable
organizations that have an established record of involvement in
donative programs and experience in maintaining and verifying a system
of distribution to ensure delivery of commodities and software to the
intended beneficiaries. Eligible
[[Page 12777]]
distribution arrangements may consist of any one or more of the
following:
(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) Donations. To qualify for export under this License Exception,
the items must be provided free of charge to the beneficiary. The
payment by the beneficiary, however, of normal handling charges or fees
levied by the importing country (e.g., import duties, taxes, etc.) is
not considered to be a cost to the beneficiary for purposes of this
section.
(5) Ineligible commodities and software. The following commodities
and software are not eligible for this License Exception:
(i) Commodities and software controlled for national security,
chemical or biological weapons, and nuclear non-proliferation, 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 Sec. 746.2(a)(3)
of the EAR.
(6) Eligible items. Eligible commodities and software are those
listed in Supplement No. 2 to part 740.
(7) Additional recordkeeping requirements. In addition to the
recordkeeping requirements in part 762 of the EAR, donors must keep
records containing the following information:
(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
(vi) Information concerning the source of funding for the donative
programs and the projected annual value of exports under this License
Exception.
Sec. 740.8 Technology and software--unrestricted (TSU).
(a) Operating technology and software (OTS). (1) Scope. This
License Exception permits exports and reexports of operation technology
and software. ``Operation technology'' is the minimum technology
necessary for the installation, operation, maintenance (checking), and
repair of those products that are lawfully exported or reexported under
a license, a License Exception, or NLR. The ``minimum necessary''
operation technology does not include technology for development or
production and includes use technology only to the extent required to
ensure safe and efficient use of the product. Individual entries in the
software and technology subcategories of the CCL may further restrict
the export or reexport of operation technology under this License
Exception.
(2) Provisions and Destinations. (i) Provisions. Operation software
may be exported or reexported under this License Exception provided
that both of the following conditions are met:
(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) Destinations. Operation software and technology may be
exported or reexported to any destination to which the equipment for
which it is required has been or is being legally exported or
reexported.
(b) Sales technology (STS). (1) Scope. This License Exception
authorizes exports and reexports of sales technology. ``Sales
technology'' is data supporting a prospective or actual quotation, bid,
or offer to sell, lease, or otherwise supply any item.
(2) Provisions and destinations. (i) Provisions. Sales technology
may be exported or reexported under this License Exception provided
that:
(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) Destinations. Sales technology may be exported or reexported
to any destination.
Note: 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 Export Administration.
(c) Software updates (SUD). This License Exception authorizes
exports and reexports of software updates that are intended for and are
limited to correction of errors (``fixes'' to ``bugs'') in software
lawfully exported or reexported (original software). Such software
updates may be exported or reexported only to the same consignee to
whom the original software was exported or reexported, and such
software updates may not enhance the functional capacities of the
original software. Such software updates may be exported or reexported
to any destination to which the software for which they are required
has been legally exported or reexported.
(d) General Software Note (GSN): ``mass market'' software. (1)
Scope. This License Exception authorizes exports and reexports of
``mass market'' software subject to the General Software Note (see
Supplement No. 2 to part 774 of the EAR; also referenced in this
section).5
\5\ ``Mass market'' software may fall under the classification
of ``general use'' software for export clearance purposes. Exporters
should consult the Census Bureau FTSR for possible SED requirements.
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(2) Provisions and destinations.
(i) Destinations. This License Exception is available to all
destinations except Cuba, Iran, Libya, North Korea, Sudan, and Syria.
(ii) Provisions. This License Exception is available for software
that is generally available to the public by being:
(A) Sold from stock at retail selling points, without restriction,
by means of:
(1) Over the counter transactions;
(2) Mail order transactions; or
(3) Telephone call transactions; and
(B) Designed for installation by the user without further
substantial support by the supplier.
Sec. 740.9 Baggage (BAG).
(a) Scope. This License Exception authorizes individuals leaving
the United States and crew members of exporting carriers to take to any
destination, as personal baggage, the classes of commodities and
software described in this section.
[[Page 12778]]
(b) Eligibility. Individuals leaving the United States may export
and reexport any of the following commodities or software to any
destination or series of destinations. Crew members may export and
reexport only commodities and software described in paragraphs (b)(1)
and (b)(2) of this section to any destination.
(1) Personal effects. Usual and reasonable kinds and quantities for
personal use of wearing apparel, articles of personal adornment, toilet
articles, medicinal supplies, food, souvenirs, games, and similar
personal effects, and their containers.
(2) Household effects. Usual and reasonable kinds and quantities
for personal use of furniture, household effects, household
furnishings, and their containers.
(3) Vehicles. Usual and reasonable kinds and quantities of
vehicles, such as passenger cars, station wagons, trucks, trailers,
motorcycles, bicycles, tricycles, perambulators, and their containers.
(4) Tools of trade. Usual and reasonable kinds and quantities of
tools, instruments, or equipment and their containers for use in the
trade, occupation, employment, vocation, or hobby of the traveler.
(c) Limits on eligibility. The export of any commodity or software
may be limited or prohibited, if the kind or quantity is in excess of
the limits described in this section. In addition, the commodities or
software must be:
(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, or by the crew
members of exporting carriers;
(3) Not intended for sale; and
(4) Not exported under a bill of lading as cargo if exported by
crew members.
(d) Special provision: unaccompanied baggage. Individuals departing
the United States may ship unaccompanied baggage, which is baggage sent
from the United States on a carrier other than that on which an
individual departs. Crew members of exporting carriers may not ship
unaccompanied baggage. Unaccompanied shipments under this License
Exception shall be clearly marked ``BAGGAGE.'' Shipments of
unaccompanied baggage may be made at the time of, or within a
reasonable time before or after departure of the consignee or owner
from the United States. Personal baggage controlled for chemical and
biological weapons (CB), missile technology (MT), national security
(NS) or nuclear nonproliferation (NP) must be shipped within 3 months
before or after the month in which the consignee or owner departs the
United States. However, commodities controlled for CB, MT, NS or NP may
not be exported under this License Exception to Country Group D or
Country Group E:2. (See Supplement No. 1 to part 740.)
(e) Special provisions: shotguns and shotgun shells. (1) A United
States citizen or a permanent resident alien leaving the United States
may export or reexport shotguns with a barrel length of 18 inches or
over and shotgun shells under this License Exception, subject to the
following limitations:
(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.
(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)).
Sec. 740.10 Aircraft and vessels (AVS).
These License Exceptions authorize 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 use on a vessel or
aircraft; and exports to vessels or planes of U.S. or Canadian registry
and U.S. or Canadian Airlines' installations or agents. Generally, no
License Exception symbol is necessary for export clearance purposes;
however, when necessary, the symbol ``AVS'' may be used.
(a) Aircraft on temporary sojourn. (1) Foreign registered aircraft.
An operating civil aircraft of foreign registry that has been in the
United States on a temporary sojourn may depart from the United States
under its own power for any destination, provided that:
(i) No sale or transfer of operational control of the aircraft to
nationals of Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria 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 Cuba, Iran, Iraq,
Libya, North Korea, Sudan, or Syria; 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) U.S. registered aircraft. (i) A civil aircraft of U.S. registry
operating under an Air Carrier Operating Certificate, Commercial
Operating Certificate, or Air Taxi Operating Certificate issued by the
Federal Aviation Administration or conducting flights under operating
specifications approved by the Federal Aviation Administration pursuant
to 14 CFR part 129 of the regulations of the Federal Aviation
Administration, may depart from the United States under its own power
for any destination, 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; 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 Cuba, Iran, Iraq, Sudan, Syria, Libya, and North Korea (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
[[Page 12779]]
operated by a pilot currently licensed by that foreign country.
(3) Criteria. The following nine criteria each must be met if the
flight is to qualify as a temporary sojourn. To be considered a
temporary sojourn, the flight must not be for the purpose of sale or
transfer of operational control. An export is for the transfer of
operational control unless the exporter retains each of the following
indicia of control:
(i) Hiring of cockpit crew. Right to hire and fire the cockpit
crew.
(ii) Dispatch of aircraft. Right to dispatch the aircraft.
(iii) Selection of routes. Right to determine the aircraft's routes
(except for contractual commitments entered into by the exporter for
specifically designated routes).
(iv) Place of maintenance. Right to perform or obtain the principal
maintenance on the aircraft, which principal maintenance is conducted
outside Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria, under
the control of a party who is not a national of any of these countries.
(The minimum necessary in-transit maintenance may be performed in any
country).
(v) Location of spares. Spares are not located in Cuba, Iran, Iraq,
Libya, North Korea, Sudan, or Syria.
(vi) Place of registration. The place of registration is not
changed to Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria.
(vii) No transfer of technology. No technology is transferred to a
national of Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria,
except the minimum necessary in transit maintenance to perform flight
line servicing required to depart safely.
(viii) Color and logos. The aircraft does not bear the livery,
colors, or logos of a national of Cuba, Iran, Iraq, Libya, North Korea,
Sudan, or Syria.
(ix) Flight number. The aircraft does not fly under a flight number
issued to a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan, or
Syria as such a number appears in the Official Airline Guide.
(4) Reexports. Civil aircraft legally exported from the United
States may be reexported under this section, provided the restrictions
described in this paragraph (a) are met.
(b) Equipment and spare parts for permanent use on a vessel or
aircraft, and ship and plane stores. (1) Vessel. Equipment and spare
parts for permanent use on a vessel, when necessary for the proper
operation of such vessel, may be exported or reexported for use on
board a vessel of any registry, except a vessel registered in Country
Group D:1 (see Supplement No. 1 to part 740), Cuba, or North Korea, or
owned or controlled by, or under charter or lease to any of these
countries or their nationals. In addition, other equipment and services
for necessary repair to fishing and fishery support vessels of Country
Group D:1 or North Korea may be exported for use on board such vessels
when admitted into the United States under governing international
fishery agreements.
(2) Aircraft. Equipment and spare parts for permanent use on an
aircraft, when necessary for the proper operation of such aircraft, may
be exported or reexported for use on board an aircraft of any registry,
except an aircraft registered in, owned or controlled by, or under
charter or lease to a country included in Country Group D:1, Cuba,
Libya, or North Korea, or a national of any of these countries.
(3) Ship and plane stores. Usual and reasonable kinds and
quantities of the following commodities may be exported for use or
consumption on board an aircraft or vessel of any registry during the
outgoing and immediate return flight or voyage. (Note that fuel and
related commodities that qualify as ship or plane stores as described
in this License Exception must be exported under the short supply
License Exception SPR (see Sec. 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.
(c) Shipments to U.S. or Canadian vessels, planes and airline
installations or agents. (1) Exports to vessels or planes of U.S. or
Canadian registry. Export may be made of the commodities set forth in
paragraph (c)(3) of this section, for use by or on a specific vessel or
plane of U.S. or Canadian registry located at any seaport or airport
outside the United States or Canada except a port in Cuba, North Korea
or Country Group D:1 (excluding the PRC and Romania), (see Supplement
No. 1 to part 740) provided that such commodities are all of the
following: 6
\6\ Where a validated license is required, see Secs. 748.2 and
748.4(g) of the EAR.
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(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) is filed with the carrier, except that an SED is not required
when any of the commodities, other than fuel, is exported by U.S.
airlines to their own aircraft abroad for their use.
(2) Exports to U.S. or Canadian airline's installation or agent.
Exports of the commodities set forth in paragraph (c)(3) of this
section, except fuel, may be made to a U.S. or Canadian airline's
7 installation or agent in any foreign destination except Cuba,
North Korea, or Country Group D:1 (excluding the PRC and Romania), (see
Supplement No. 1 to part 740) provided such commodities are all of the
following:
\7\ See Part 772 of the EAR for definitions of United States
and Canadian airlines.
---------------------------------------------------------------------------
(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,
North Korea 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) is filed with the carrier, except that an SED 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) Applicable commodities. This paragraph (c) applies to the
following commodities, subject to the provisions in paragraph (c)(1)
and (c)(2) of this section:
Note to paragraph (c)(3) of this section: 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 Sec. 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
[[Page 12780]]
(vi) Equipment and spare parts.
Sec. 740.11 Additional permissive reexports (APR).
This License Exception allows the following reexports:
(a) Reexports from Country Group A:1 and cooperating countries.
Reexports may be made from Country Group A:1 or from cooperating
countries, provided that:
(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 nuclear
nonproliferation, missile technology or crime control reasons; and
(3) The reexport is destined to either:
(i) A country in Country Group B that is not also included in
Country Group D:2, D:3, or D:4; Cambodia; or Laos; and the commodity
being reexported is both controlled for national security reasons and
not controlled for export to Country Group A:1; or
(ii) A country in Country Group D:1 only (National Security) (see
Supplement No. 1 to part 740), other than Cambodia or Laos, and the
commodity being reexported is controlled for national security reasons.
(b) Reexports to and among Country Group A:1 and cooperating
countries. Reexports may be made to and among Country Group A:1 and
cooperating countries, provided that eligible commodities are for use
or consumption within a Country Group A:1 (see Supplement No. 1 to part
740) or cooperating country, or for reexport from such country in
accordance with other provisions of the EAR. All commodities except the
following are eligible for reexport to and among Country Group A:1 and
cooperating countries:
(1) Computers with a CTP greater than 10,000 MTOPS to Hong Kong and
South Korea;
(2) Commodities controlled for nuclear nonproliferation reasons.
(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 Sec. 734.4 of the
EAR.
(i) Reexport to Sudan of items controlled by ECCNs 2A994, 3A993,
5A992, 5A995, 6A990, 6A994, 7A994, 8A992, 8A994, 9A990, 9A992, and
9A994. 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 into foreign-made
products.
BILLING CODE 3510-DT-P
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Supplement No. 2 to Part 740--Items That May Be Donated To Meet Basic
Human Needs Under the Humanitarian License Exception
(a) Health
Equipment for the Handicapped
Hospital Supplies and Equipment
Laboratory Supplies and Equipment
Medical Supplies and Devices
Medicine-Processing Equipment
Medicines
Vitamins
Water Resources Equipment
Food
Agricultural Materials and Machinery Suited to Small-Scale Farming
Operations
Agricultural Research and Testing Equipment
Fertilizers
Fishing Equipment and Supplies Suited to Small-Scale Fishing
Operations
(b) Food
Insecticides
Pesticides
Seeds
Small-Scale Irrigation Equipment
Veterinary Medicines and Supplies
(c) Clothes and Household Goods
Bedding
Clothes
Cooking Utensils
Fabric
Personal Hygiene Items
Soap-Making Equipment
Weaving and Sewing Equipment
(d) Shelter
Building Materials
Hand Tools
(e) Education
Books
Individual School Supplies
School Furniture
Special Education Supplies and Equipment for the Handicapped
(f) Basic Support Equipment and Supplies Necessary To Operate and
Administer the Donative Program
Audio-Visual Aids for Training
Generators
Office Supplies and Equipment
PART 742--CONTROL POLICY--CCL BASED CONTROLS
Sec.
742.1 Introduction.
742.2 Proliferation of chemical and biological weapons.
742.3 Nuclear nonproliferation.
742.4 National security.
742.5 Missile technology.
742.6 Regional stability.
742.7 Crime control.
742.8 Anti-Terrorism: Iran.
742.9 Anti-Terrorism: Syria.
742.10 Anti-Terrorism: Sudan.
742.11 Specially designed implements of torture.
742.12 High performance computers.
742.13 Communications intercepting devices.
Supplement No. 1 to Part 742--Nonproliferation of Chemical and
Biological Weapons
Supplement No. 2 to Part 742--Anti-Terrorism Controls; Iran, Syria and
Sudan Contract Sanctity Dates and Related Policies
Supplement No. 3 to Part 742--High Performance Computers; Safeguard
Conditions and Related Information
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
18 U.S.C. 2510 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a;
E.O. 12058, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 3 CFR, 1993
Comp., p. 608; E.O. 12924, 3 CFR, 1994 Comp., p. 917; E.O. 12938, 3
CFR, 1994 Comp., p. 950; Notice of August 15, 1995 (60 FR 42767,
August 17, 1995).
Sec. 742.1 Introduction. In this part, references to the Export
Administration Regulations (EAR) are references to 15 CFR chapter VII,
subchapter C.
(a) Scope. This part describes all the reasons for control
reflected in the Country Chart in Supplement No. 1 to part 738 of the
EAR. In addition, it includes licensing requirements and licensing
policies for the following items that are not reflected on the Country
Chart: specially designed implements of torture, high performance
computers, and communications intercepting devices. This part is
organized so that it lists each reason for control in the order
(reading left to right) in which the control appears on the Country
Chart. In addition to describing the reasons for control and licensing
requirements and policies, this part describes any applicable contract
sanctity provisions that may apply to specific controls and includes a
description of any multilateral regime under which specific controls
are maintained.
(b) Reasons for control listed on the CCL not covered by this part.
This part describes the license requirements and the licensing policies
for all the ``Reasons for Control'' that are listed on the Commerce
Control List (CCL) except ``Short Supply'' and ``U.N. Sanctions,''
which do not appear on the Country Chart.
(1) Short Supply. ECCNs containing items subject to short supply
controls (``SS'') refer the exporter to part 754 of the EAR. These
ECCNs are: 0A980 (Horses for export by sea); 1C980 (certain inorganic
chemicals); 1C981 (Crude petroleum, including reconstituted crude
petroleum, tar sands, and crude shale oil); 1C982 (certain other
petroleum products); 1C983 (Natural gas liquids and other natural gas
derivatives); 1C984 (certain manufactured gas and synthetic natural gas
(except when commingled with natural gas and thus subject to export
authorization from the Department of Energy); and 1C988 (Western red
cedar (thuja plicata) logs and timber, and rough, dressed and worked
lumber containing wane).
(2) U.N. Sanctions. The United Nations imposes sanctions, short of
complete embargoes, against certain countries which may result in
controls that supplement those otherwise maintained under the EAR for
that particular country. This part does not address license
requirements and licensing policies for controls implementing U.N.
sanctions. CCL entries containing items subject to U.N. sanctions will
refer the exporter to part 746 of the EAR, Embargoes and Other Special
Controls, for any supplemental controls that may apply to exports and
reexports involving these countries.
(c) Exports and reexports involving Cuba, Libya, North Korea, Iraq,
Iran, and the Bosnian Serb-controlled areas of Bosnia-Herzegovina. This
part does not cover license requirements and licensing policies that
apply to exports and reexports to embargoed destinations (Cuba, Libya,
North Korea, Iraq, Iran and the Bosnian-Serb controlled areas of
Bosnia-Herzegovina). These comprehensive embargoes cover a broader
range of items than those reflected in the CCL. If you are exporting or
reexporting to any of these destinations, you should first review part
746 of the EAR, Embargoes and Other Special Controls.
(d) Anti-terrorism Controls on Cuba, Libya, Iran, Iraq, North
Korea, Sudan and Syria. Commerce maintains anti-terrorism controls on
Iran, Syria and Sudan under section 6(a) of the Export Administration
Act. Items controlled under section 6(a) to these three countries are
described in Supplement No. 2 to part 742. Commerce also maintains
controls under EAA section 6(j) of the EAA to Cuba, Libya, Iraq, Iran,
North Korea, Sudan and Syria. Items controlled to these seven countries
under EAA section 6(j) are also described in Supplement 2 to part 742.
The Secretaries of Commerce and State are required to notify
appropriate Committees of the Congress 30 days before issuing a license
for an item controlled under section 6(j) to Cuba, Libya, North Korea,
Iran, Iraq, Sudan or Syria. As noted in paragraph (c) of this section,
if you are exporting or reexporting to Cuba, Libya, Iran, Iraq and
North Korea, you should review Part 746 of the EAR, Embargoes and Other
Special Controls.
(e) End-user and end-use based controls. This part does not cover
prohibitions and licensing requirements for exports of items not
included on the
[[Page 12787]]
CCL that are subject to end-use and end-user controls: certain nuclear
end-uses; certain missile end-uses; certain chemical and biological
weapons end-uses; certain naval nuclear propulsion end-uses; certain
activities of U.S. persons; certain exports to and for the use of
certain foreign vessels or aircraft; and certain exports to all
countries for Libyan aircraft. Licensing requirements and policies for
these exports are contained in part 744 of the EAR.
(f) Overlapping license policies. Many items on the CCL are subject
to more than one type of control (e.g., national security (NS), missile
technology (MT), nuclear nonproliferation (NP), regional stability
(RS)). In addition, applications for all items on the CCL, other than
those controlled for short supply reasons, may be reviewed for missile
technology (see Sec. 742.5(b)(3) of this part), nuclear
nonproliferation (see Sec. 742.3(b)(2) of this part), or chemical and
biological weapons (see Sec. 742.3(b)(3) of this part), if the end-use
or end-user may be involved in certain proliferation activities.
Finally, many multilaterally controlled items are reviewed for anti-
terrorism reasons if they are destined for a terrorism-supporting
country (see paragraph (d) of this section). Your application for a
license will be reviewed under all applicable licensing policies. A
license will be issued only if an application can be approved under all
applicable licensing policies.
Sec. 742.2 Proliferation of chemical and biological weapons.
(a) License requirements. The following controls are maintained in
support of the U.S. foreign policy of opposing the proliferation and
illegal use of chemical and biological weapons:
(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 except Canada for the following:
(i) Human pathogens, zoonoses, toxins, animal pathogens,
genetically modified microorganisms and plant pathogens identified in
ECCNs 1C351, 1C352, 1C353 and 1C354; and
(ii) Technology (ECCN 1E391) 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 licensing requirement includes chemical mixtures
containing any chemicals identified in ECCN 1C350, except as specified
in 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.
(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 1E390) for the production and/or disposal of
chemical precursors described in ECCN 1C350, and technology involving
the following for facilities designed or intended to produce chemicals
described in ECCN 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.
(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 (see Supplement No. 1 to part 740 of the
EAR) for the following:
(i) Equipment and materials identified in ECCNs 2B350 and 2B351 on
the CCL, which can be used in the production of chemical weapons
precursors or chemical warfare agents, and equipment and materials
identified in ECCN 2B352, which can be used in the production of
biological agents; and
(ii) Technology (ECCN 2E301) for production of the commodities
covered in ECCNs 2B350, 2B351, 2B352, 2B353 and 2B354.
(b) Licensing policy. (1) License applications for the items
described in paragraph (a) of this section will be considered on a
case-by-case basis to determine whether the export or reexport would
make a material contribution to the design, development, production,
stockpiling, or use of chemical or biological weapons. When an export
or reexport is deemed to make such a contribution, the license will be
denied.
(2) The following factors are among those that will be considered
to determine what action should be taken on individual license
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, stockpiling, or
use of chemical or biological weapons;
(iii) The nonproliferation credentials of the importing country;
(iv) The types of assurances or guarantees against 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.
(3) BXA will review license applications in accordance with the
licensing policy described in paragraph (b)(2) 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) Are destined to any country except countries in Country Group
A:3 (see Supplement No. 1 to part 740 of the EAR) (Australia Group
members); and
(iii) 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) Contract sanctity. Contract sanctity dates are set forth in
Supplement No. 1 to part 742. Applicants who wish that a preexisting
contract be considered in reviewing their license applications must
submit documentation sufficient to establish the existence of such a
contract.
(d) Australia Group. The Australia Group, a multilateral body that
works to halt the spread of chemical and biological weapons, has
developed common control lists of items specifically related to
chemical and biological weapons. Australia Group members are listed in
Country Group A:3 (see Supplement No. 1 to part 740 of the EAR).
Controls on items listed in paragraph (a) of this section are
consistent with lists agreed to in the Australia Group.
Sec. 742.3 Nuclear nonproliferation.
(a) License requirements. Section 309(c) of the Nuclear Non-
Proliferation Act of 1978 requires BXA to identify items subject to the
EAR that could be of significance for nuclear explosive purposes if
used for activities other than those authorized at the time of export
or reexport. ECCNs on the CCL that include the symbol ``NP 1'' or ``NP
2'' in the ``Country Chart'' column of the ``License Requirements''
section identify items that could be of significance for nuclear
explosive purposes and are therefore subject to licensing
[[Page 12788]]
requirements under this part and under section 309(c) of the Nuclear
Non-Proliferation Act of 1978. These items are referred to as ``The
Nuclear Referral List'' and are subject to the following licensing
requirements:
(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).
(3) Other nuclear-related license requirements are described in
Secs. 744.2 and 744.5 of the EAR.
(b) Licensing policy. (1) To implement the controls in paragraph
(a) of this section, the following factors are among those used to
determine what action should be taken on individual applications:
(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 Sec. 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, BXA will review license applications in accordance
with the licensing policy described in paragraph (b) of this section
for items not on the Nuclear Referral List that:
(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) Contract sanctity. Contract sanctity provisions are not
available for license applications reviewed under this section.
(d) Nuclear Suppliers Group. Most items on the Nuclear Referral
List that require a license under NP Column No. 1 on the Country Chart
(see Supplement No. 1 to part 738 of the EAR) are contained in the
Annex to the ``Guidelines for Transfers of Nuclear-Related Dual-Use
Equipment, Material, and Related Technology'' (the Annex), as published
by the International Atomic Energy Agency in INFCIRC/254/Revision 1/
Part 2. The adherents to INFCIRC/254/Revision 1/Part 2, which includes
the Nuclear Suppliers Guidelines, have agreed to establish export
licensing procedures for the transfer of items identified in the Annex.
Items that are listed as requiring a license under NP Column No. 2 on
the Country Chart (see Supplement No. 1 to part 738 of the EAR) are not
included in the Annex and are controlled only by the United States.
Sec. 742.4 National security.
(a) License requirements. It is the policy of the United States to
restrict the export and reexport of items that would make a significant
contribution to the military potential of any other country or
combination of countries that would prove detrimental to the national
security of the United States. Accordingly, a license is required for
exports and reexports to all destinations, except Canada, for all items
in ECCNs on the CCL that include NS Column 1 in the Country Chart
column of the ``License Requirements'' section. A license is required
to all destinations except Country Group A:1 and cooperating countries
(see Supplement No. 1 to part 740) for all items in ECCNs on the CCL
that include NS Column 2 in the Country Chart column of the ``License
Requirements'' section. The purpose of the controls is to ensure that
these items do not make a contribution to the military potential of
countries in Country Group D:1 (see Supplement No. 1 to part 740 of the
EAR) that would prove detrimental to the national security of the
United States. License Exception GBS is available for the export and
reexport of certain national security controlled items to Country Group
B (see Sec. 740.3(b) and Supplement No. 1 to part 740 of the EAR).
(b) Licensing policy. (1) The policy for national security
controlled items exported or reexported to any country except a country
in Country Group D:1 (see Supplement No. 1 to part 740 of the EAR) is
to approve applications unless there is a significant risk that the
items will be diverted to a country in Country Group D:1.
(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 BXA 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
[[Page 12789]]
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, Bulgaria, Latvia, Kazakhstan, Lithuania,
Mongolia, and Russia are accorded enhanced favorable consideration
licensing treatment.
(6) The general policy for Cambodia and Laos is to approve license
applications when BXA 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) Contract sanctity. Contract sanctity provisions are not
available for license applications reviewed under this section.
(d) [Reserved]
Sec. 742.5 Missile technology.
(a) License requirements. (1) In support of U.S. foreign policy to
limit the proliferation of missiles, a license is required to export
and reexport items related to the design, development, production, or
use of missiles. These items are identified in ECCNs on the CCL as MT
Column No. 1 in the Country Chart column of the ``License
Requirements'' section. Licenses for these items are required to all
destinations, except Canada, as indicated by MT Column 1 of the Country
Chart (see Supplement No. 1 to part 738 of the EAR).
(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 at least 300 kilometers
(km).
(b) Licensing policy. (1) Applications to export and reexport items
identified in ECCNs on the CCL as MT Column No. 1 in the Country Chart
column of the ``License Requirements'' section will be considered on a
case-by-case basis to determine whether the export or reexport would
make a material contribution to the proliferation of missiles.
Applications for exports and reexports of such items contained in
Category 7A or described by ECCN 9A101 on the CCL will be considered
more favorably if such exports or reexports are determined to be
destined to a manned aircraft, satellite, land vehicle, or marine
vessel, in quantities appropriate for replacement parts for such
applications. When an export or reexport is deemed to make a material
contribution to the proliferation of missiles, the license will be
denied.
(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) Controls on other items. BXA 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 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) Contract sanctity. The following contract sanctity dates have
been established:
(1) License applications for batch mixers specified in ECCN 1B115.a
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) Missile Technology Control Regime. Missile Technology Control
Regime (MTCR) members are listed in Country Group A:2 (see Supplement
No. 1 to part 740 of the EAR). Controls on items identified in
paragraph (a) of this section are consistent with the list agreed to in
the MTCR and included in the MTCR Annex.
Sec. 742.6 Regional stability.
(a) License requirements. The following controls are maintained in
support of U.S. foreign policy to maintain regional stability:
(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, or .c; 6A003.b.3 and b.4; 6D102 (only
software for development of items in 6A002.a.1, a.2, a.3 or .c); 6E001
(only technology for development of items in 6A002.a.1, a.2, a.3, and
.c, or 6A003.b.3 and b.4); 6E002 (only technology for production of
items in 6A002.a.1, a.2, a.3, or .c, or 6A003.b.3 or b.4); 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).
(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 countries in Country Group A:1 (see Supplement
No. 1 to part 740 of the EAR), Iceland and New Zealand 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.
[[Page 12790]]
(b) Licensing policy. (1) Applications to export and reexport items
described in paragraph (a)(1) of this section will be reviewed on a
case-by-case basis to determine whether the export or reexport could
contribute directly or indirectly to any country's military
capabilities in a manner that would alter or destabilize a region's
military balance contrary to the foreign policy interests of the United
States.
(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 would contribute significantly to the destabilization of the
region to which the equipment is destined.
(c) Contract sanctity. Contract sanctity provisions are not
available for license applications reviewed under this section.
(d) U.S. controls. Although the United States seeks cooperation
from like-minded countries in maintaining regional stability controls,
at this time these controls are maintained only by the United States.
Sec. 742.7 Crime control.
(a) License requirements. In support of U.S. foreign policy to
promote the observance of human rights throughout the world, a license
is required to export and reexport crime control and detection
equipment, related technology and software as follows:
(1) Crime control and detection instruments and equipment and
related technology and software identified in the appropriate ECCNs on
the CCL under CC Column No. 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: 0A982, 0A984, 0A985, 0E984, 1A984, 3A980, 3A981,
3D980, 3E980, 4A003 (fingerprint computers only), 4A980, 4D001 (for
fingerprint computers only), 4D980, 4E001 (for fingerprint computers
only); 4E980, 6A002 (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 of 24 inches or more identified
in ECCN 0A984 on the CCL under CC Column No. 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 to part 738 of the
EAR).
(3) Shotguns with barrel length over 24 inches, identified in ECCN
0A984 on the CCL under CC Column No. 3 in the Country Chart column of
the ``License Requirements'' only if for sale or resale to police or
law enforcement entities to countries listed in CC Column 3 (Supplement
No. 1 to part 738 of the EAR).
(b) Licensing policy. Applications for items controlled under this
section will generally be considered favorably on a case-by-case basis
unless there is evidence that the government of the importing country
may have violated internationally recognized human rights and that the
judicious use of export controls would be helpful in deterring the
development of a consistent pattern of such violations or in distancing
the United States from such violations.
(c) Contract sanctity. Contract sanctity provisions are not
available for license applications reviewed under this section.
(d) U.S. controls . Although the United States seeks cooperation
from like-minded countries in maintaining controls on crime control and
detection items, at this time these controls are maintained only by the
United States.
Sec. 742.8 Anti-Terrorism: Iran.
(a) License requirements. (1) If AT column 1 or AT 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 for export to Iran for
anti-terrorism purposes. In addition, portable electric power
generators and related software and technology (ECCNs 2A994, 2D994 and
2E994) are controlled for export to Iran for anti-terrorism purposes.
See paragraph (a)(5) of this section for controls maintained by the
Department of the Treasury.
(2) If AT column 1 or AT 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 for reexport to Iran for anti-terrorism purposes,
except for ECCNs 2A994, 3A993, 5A992, 5A995, 6A990, 6A994, 7A994,
8A992, 8A994, 9A990, 9A992 and 9A994. In addition, items in these ECCNs
are not counted as controlled U.S. content for the purpose of
determining license requirements for U.S. parts, components or
materials incorporated into 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 Iran is
prohibited without a license. See Sec. 740.9 of the EAR for additional
information. See paragraph (a)(5) of this section for controls
maintained by the Department of the Treasury.
(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, BXA 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)(39) 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 Sec. 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 BXA is required.
(b) Licensing policy. (1) The Iran-Iraq Arms Non-Proliferation Act
of October 23, 1992, requires BXA to deny licenses for items controlled
to Iran for national security (section 5 of the 1979 EAA) or foreign
policy reasons (section 6 of the 1979 EAA), absent contract sanctity or
a Presidential waiver. License applications for which contract sanctity
is established may be considered under policies in effect prior to the
enactment of that Act. Otherwise, licenses for such items to Iran are
subject to a general policy of denial.
(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
[[Page 12791]]
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) Contract sanctity. Contract sanctity dates and related policies
for Iran are listed in Supplement No. 2 to part 742. Applicants who
wish a pre-existing contract to be considered must submit sufficient
evidence to establish the existence of a contract.
(d) U.S. controls. Although the United States seeks cooperation
from like-minded countries in maintaining anti-terrorism controls, at
this time these controls are maintained only by the United States.
Sec. 742.9 Anti-terrorism: Syria.
(a) License requirements. (1) If AT 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 for export and reexport to
Syria for anti-terrorism purposes.
(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, BXA
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)(39) of
Supplement No. 2 to part 742, are controlled to Syria under section
6(a) of the EAA.
(b) Licensing policy. (1) Applications for export and reexport to
all end-users in Syria of the following items will generally be denied:
(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 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 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. These are items controlled to
any destination for national security reasons and items controlled to
Syria for anti-terrorism purposes. 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 Syria will be included
as controlled US content for purposes of such license 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) Explosive device detectors controlled under ECCN 2A993.
(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.
Note to paragraph (b) of this section: 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) Contract sanctity. Contract sanctity dates and related
licensing policies for Syria are set forth in Supplement No. 2 to part
742. Applicants who wish a pre-existing contract to be considered must
submit sufficient documentation to establish the existence of a
contract.
(d) U.S. controls. Although the United States seeks cooperation
from like-minded countries in maintaining anti-terrorism controls, at
this time these controls are maintained only by the United States.
Sec. 742.10 Anti-terrorism: Sudan.
(a) License requirements. (1) If AT column 1 or AT column 2 1
of the Country Chart (Supplement No. 1 to part 738 of the EAR) is
indicated in the appropriate ECCN, a license is required for export to
Sudan for anti-terrorism purposes.
\1\ AT column 1 refers to items controlled to Iran, Sudan, and
Syria for anti-terrorism purposes. AT column 2 refers to additional
items controlled to Iran and Sudan for anti-terrorism purposes. In
addition, items included in ECCNs 2A994, 2D994 and 2E994 are
controlled to Iran for anti-terrorism purposes.
---------------------------------------------------------------------------
(2) If AT column 1 or AT 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 for reexport to Sudan for anti-terrorism purposes,
except for ECCNs 2A994, 3A993, 5A992, 5A995, 6A990, 6A994, 7A994,
8A992, 8A994, 9A990, 9A992 and 9A994. In addition, items in these ECCNs
are not counted as controlled U.S. content for the purpose
[[Page 12792]]
of determining license requirements for U.S. parts, components or
materials incorporated into 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. See Sec. 740.9 of the EAR for additional
information.
(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, BXA
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)(39) of Supplement No. 2 to part 742 are controlled to Sudan
under section 6(a) of the EAA.
(b) Licensing policy. (1) Applications for export and reexport to
all end-users in Sudan of the following items will generally be denied:
(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) Explosive device detectors controlled under ECCN 2A993.
(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 section, will 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 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.
Note to paragraph (b) of this section: 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) Contract sanctity. Contract sanctity dates and related
licensing information for Sudan are set forth in Supplement No. 2 to
part 742. Applicants who wish a pre-existing contract to be considered
must submit sufficient documentation to establish the existence of a
contract.
(d) U.S. controls. Although the United States seeks cooperation
from like-minded countries in maintaining anti-terrorism controls, at
this time these controls are maintained only by the United States.
Sec. 742.11 Specially designed implements of torture.
(a) License requirements. In support of U.S. foreign policy to
promote the observance of human rights throughout the world, a license
is required to export specially designed implements of torture
controlled by 0A983 to all destinations, including Canada.
(b) Licensing policy. Applications for such licenses will generally
be denied to all destinations.
(c) Contract sanctity. The contract sanctity date is November 9,
1995. Contract sanctity will be a factor in considering only
applications for export to the NATO countries, Japan, Australia, and
New Zealand.
(d) U.S. controls. Although the United States seeks cooperation
from like-minded countries in maintaining controls on implements of
torture, at this time these controls are maintained only by the United
States.
Sec. 742.12 High performance computers.
(a) License and recordkeeping requirements. (1) This section
contains special provisions for exports, reexports, and certain intra-
country transfers of high performance computers, including software,
and technology. This section affects the following ECCNs: 4A001, 4A002,
4A003, 4D001, 4D002, and 4E001. It applies to computers with a
Composite Theoretical Performance (CTP) greater than 2000, stated in
Million Theoretical Operations Per Second (MTOPS). Licenses are
required under this section for ECCN's having an ``XP'' under ``Reason
for Control'' when License Exception CTP is not available (see
Sec. 740.3(e) of the EAR). License requirements reflected in this
section are based on particular destinations, end-users, or end-uses.
For the calculation of CTP, see the Technical Note that follows the
Advisory Notes for Category 4 in the Commerce Control List. Note that
License Exception CTP contains restrictions on access by nationals of
certain countries, and on reexports and transfers of computers.
[[Page 12793]]
(2) In recognition of the strategic and proliferation significance
of high performance computers, a license is required for the export or
reexport of high performance computers to destinations, end-users, and
end-uses, as specified in this section and on the CCL. These license
requirements supplement requirements that apply for other control
reasons, such as nuclear nonproliferation provided in Sec. 742.3 of the
EAR. The license requirements described in this Sec. 742.12 are not
reflected on the Country Chart (Supplement No. 1 to part 738 of the
EAR). Four Computer Country Tiers have been established for the
purposes of these controls. Countries included in Computer Tiers 1, 2,
and 3 are listed in License Exception CTP in Sec. 740.3(e) of the EAR.
Computer Tier 4 consists of Cuba, Iran, Iraq, Libya, North Korea,
Sudan, and Syria.
(3) Exporters must keep accurate records of each export to any
destination of a computer with a CTP equal to or greater than 2,000
MTOPS, irrespective of whether the export is made under License
Exception or otherwise. These records will be made available to the
U.S. Government upon request. The records will include the following
information:
(i) Date of shipment;
(ii) Name and address of the end-user and each intermediate
consignee;
(iii) CTP of each computer in shipment;
(iv) Volume of computers in shipment;
(v) Dollar value of shipment; and
(vi) End-Use.
(4) Exporters are hereby notified that consistent with the
commitments reached with the Wassenaar Arrangement, exporters will be
required to submit to BXA consolidated reports on exports to certain
destinations every six months of computers with a CTP equal to or
greater than 2,000 MTOPS. These reports will include for each such
export all the information required to be kept pursuant to paragraph
(3) of Sec. 742.12(a). Exports of computers above 2,000 MTOPS to
certain destinations will be subject to the reporting requirement once
the initial elements of the Wassenaar Arrangement are adopted, and the
first report will be due thereafter.
(b) Licensing policy. Licensing policies described in this section
vary according to the country of destination, and the end-use or end-
user involved in the transaction. Note that in addition, license
applications for items covered by Sec. 742.12 will also be reviewed
under the nuclear nonproliferation licensing policy in Sec. 742.3(b).
In certain cases, licenses may be subject to safeguard conditions. The
specific conditions that may be imposed by BXA will depend on the
country of destination, and the end-use or end-user of the export. BXA
may also require end-use certification which, in appropriate cases, is
certified by the government of the importing country. The range of
possible safeguard conditions and related information are provided in
Supplement No. 3 to part 742.
(1) Computer Tier 1.
(i) License requirement. No license is required under this
Sec. 742.12 for exports or reexports of computers to and among
countries listed in Computer Tier 1, for consumption in such countries
or other disposition in accordance with the EAR.
(ii) Licensing policy. A license is not required under this
Sec. 742.12.
(2) Computer Tier 2.
(i) License requirement. A license is required to export or
reexport a computer having a Composite Theoretical Performance (CTP)
greater than 10,000 Millions of Theoretical Operations Per Second
(MTOPS) to a country in Computer Tier 2.
(ii) Licensing policy. License applications for a country in
Computer Tier 2 will generally be approved.
(3) Computer Tier 3.
(i) License requirement.
(A) A license is required to export or reexport computers with a
CTP greater than 2,000 MTOPS to countries in Computer Tier 3 to
military end-users and end-uses and to nuclear, chemical, biological,
or missile end-users and end-uses defined in part 744 of the EAR in
Computer Tier 3 countries.
(B) A license is required to export or reexport computers with a
CTP greater than 7,000 MTOPS to all end-users and end-uses located in
countries in Computer Tier 3.
(ii) Licensing policy. License applications for exports and
reexports to military end-users and end-uses and nuclear, chemical,
biological, or missile end-users and end-uses defined in part 744 of
the EAR in countries in Computer Tier 3 will be reviewed on a case-by-
case basis using the following criteria:
(A) The presence and activities of countries and end-users of
national security and proliferation concern and the relationships that
exist between the government of the importing country and such
countries and end-users;
(B) The ultimate consignee's participation in, or support of, any
of the following:
(1) Activities that involve national security concerns; or
(2) Nuclear, chemical, biological or missile proliferation
activities described in part 744 of the EAR;
(C) The extent to which the importing country is involved in
nuclear, chemical, biological, or missile proliferation activities
described in part 744 of the EAR;
(D) The end-user, whether the end-use is single-purpose or
multiple-purpose.
(iii) Licensing policy for other end-uses and end-users. License
applications for exports and reexports to other end-users and end-uses
located in countries in Computer Tier 3 will generally be approved.
(4) Computer Tier 4.
(i) License requirement. A license is required to export or
reexport any items covered by this section to a country in Country Tier
4.
(ii) Licensing policy. The licensing policies for countries in
Computer Tier 4 are the same as described in the following EAR
sections: for Sudan see Sec. 742.10(b); for Syria see Sec. 742.9(b);
for Cuba see Sec. 746.2; for Iran see Sec. 746.7; for Iraq see
Sec. 746.3; for Libya see Sec. 746.4; and for North Korea see
Sec. 746.5.
(c) Contract sanctity. Contract sanctity provisions are not
available for license applications involving exports and reexports of
high performance computers.
(d) High performance computer regime. The United States and Japan
participate in a high performance computer regime. Other countries are
expected to join. The regime provides uniform and effective safeguards
to protect high performance computers from unauthorized destinations,
end-users and end-uses.
Sec. 742.13 Communications intercepting devices.
(a) License requirement. (1) As set forth in ECCN 5A980, a license
is required for the export or reexport to any destination, including
Canada, of any electronic, mechanical, or other device primarily useful
for surreptitious interception of wire or oral communications. This
control implements a provision of the Omnibus Crime Control and Safe
Streets Act of 1968 (Public Law 90-361). This license requirement is
not reflected on the Country Chart (Supplement No. 1 to part 738 of the
EAR).
(2) Communications intercepting devices are electronic, mechanical,
or other devices that can be used for interception of wire or oral
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
[[Page 12794]]
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) Licensing policy. (1) License applications will generally be
approved for:
(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; and
(ii) Officers, agents, or employees of, or 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.
(2) Other applications will generally be denied.
(c) Contract sanctity. Contract sanctity provisions are not
available for license applications involving exports and reexports of
communications interception devices.
(d) U.S. controls. Controls on this equipment are maintained by the
United States government in accordance with the Omnibus Crime Control
and Safe Streets Act of 1968.
Supplement No. 1 to Part 742--Nonproliferation of Chemical and
Biological Weapons
Note: 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, methyl phosphonyldifluoride, 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, methylphosphonyl difluoride, phosphorus
oxychloride, and thiodiglycol is February 22, 1989.
(5) The contract sanctity date for exports to Iran, Libya 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, Libya 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, Libya or Syria, paragraph (5) of this
Supplement applies.
(8) The contract sanctity date for exports to all destinations
(except Iran, Libya 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), methylphosphonyl
dichloride, methylphosphonyl difluoride, phosphorus oxychloride,
phosphorous trichloride, thiodiglycol, thionyl chloride
triethanolamine, and trimethyl phosphite. (See also paragraphs (6)
and (7) of this Supplement.) For exports to Iran, Libya 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 ECCN 2B352; and
(iii) Technology (for the production of equipment and materials
described in 2B351 and 2B352) described in ECCN 2E301.
(10) The contract sanctity date for license applications subject
to Sec. 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,
Libya 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.
Supplement No. 2 to Part 742--Anti-Terrorism Controls; Iran, Syria, and
Sudan Contract Sanctity Dates and Related Policies
Note: 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. BXA will determine any applicable contract
sanctity date at the time an application with relevant supporting
documents is submitted.
(a) Terrorist-supporting countries. The Secretary of State has
designated Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria as
countries whose governments have repeatedly provided support for
acts of international terrorism under section 6(j) of the Export
Administration Act (EAA).
(b) Items controlled under EAA sections 6(j) and 6(a). Whenever
the Secretary of State determines that an export or reexport to any
of these countries could make a significant contribution to the
military potential of such country, including its military logistics
capability, or could enhance the ability of such country to support
acts of international terrorism, the item is subject to mandatory
control under section EAA 6(j) and the Secretaries of Commerce and
State are required to notify appropriate Committees of the Congress
30 days before a license for such an item may be issued.
(1) On December 28, 1993, the Secretary of State determined that
the export to Cuba, Libya, Iran, Iraq, 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, Sudan and Syria are:
[[Page 12795]]
(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)(39) of this Supplement; for Sudan,
items in paragraphs (c)(6) through (c)(14), and (c)(16) through
(c)(39) of this Supplement; 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)(39) of this Supplement.
(c) The license requirements and licensing policies for items
controlled for anti-terrorism reasons to Iran, Syria and Sudan are
generally described in Secs. 742.8, 742.9 and 742.10 of this part.
This Supplement provides guidance on licensing policies for Syria
and Sudan and related contract sanctity dates that may be available
for transactions benefitting from pre-existing contracts involving
Syria and Sudan. This supplement also provides information on
licensing policies and contract sanctity dates for Iran. 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 and 12959 of March 15, 1995
and May 6, 1995, 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) All items subject to national security controls.
(i) Iran. Applications for all end-users in Iran will generally
be denied.
(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, unless otherwise specified in paragraphs
(c)(2) through (c)(39) of this Supplement.
(ii) Syria. Applications for military end-users or military end-
uses in Syria will generally be denied. Applications for non-
military end-users or end-uses will be considered on a case-by-case
basis, unless otherwise specified in paragraphs (c)(2) through
(c)(39) of this Supplement. No contract sanctity date is available
for items valued at $7 million or more to military end-users or end-
uses. The contract sanctity date for all other items for all end-
users: December 16, 1986.
(iii) Sudan. Applications for military end-users or military
end-uses in Sudan will generally be denied. Applications for non-
military end-users or end-uses will be considered on a case-by-case
basis. Contract sanctity date: January 19, 1996, unless a prior
contract sanctity date applies (e.g., items first controlled to
Sudan for foreign policy reasons under EAA section 6(j) have a
contract sanctity date of December 28, 1993).
(2) All items subject to chemical and biological weapons
proliferation controls. Applications for all end-users in Iran,
Syria or Sudan of these items will generally be denied. See
Supplement No. 1 to part 742 for contract sanctity dates for Iran
and Syria. Contract sanctity date for Sudan: January 19, 1996,
unless a prior contract sanctity date applies (e.g., items first
controlled to Sudan for foreign policy reasons under EAA section
6(j) have a contract sanctity date of December 28, 1993), or unless
an earlier date for any item is listed in Supplement 1 to part 742.
(3) All items subject to missile proliferation controls (MTCR).
Applications for all end-users in Iran, Syria or Sudan will
generally be denied. Contract sanctity provisions for Iran and Syria
are not available. Contract sanctity date for Sudan: January 19,
1996, unless a prior contract sanctity date applies (e.g., items
first controlled to Sudan for foreign policy reasons under EAA
section 6(j) have a contract sanctity date of December 28, 1993).
(4) All items subject to nuclear weapons proliferation controls
(NRL).
(i) Iran. Applications for all end-users in Iran will generally
be denied. No contract sanctity date is available.
(ii) Syria. Applications for military end-users or end-uses to
Syria will generally be denied. Applications for non-military end-
users or end-uses will be considered on a case-by-case basis. No
contract sanctity date is available.
(iii) Sudan. Applications for military end-users or end-uses in
Sudan will generally be denied. Applications for export and reexport
to non-military end-users or end-uses will be considered on a case-
by-case basis. No contract sanctity date is available.
(5) All military-related items, i.e., applications for export
and reexport of items controlled by CCL entries ending with the
number ``18''.
(i) Iran. Applications for all end-users in Iran will generally
be denied. Contract sanctity date: see paragraph (c)(1)(i) of this
Supplement.
(ii) Syria. Applications for all end-users in Syria will
generally be denied. Contract sanctity date: see paragraph
(c)(1)(ii) of this Supplement.
(iii) Sudan. Applications for all end-users in Sudan will
generally be denied. Contract sanctity date for Sudan: January 19,
1996, unless a prior contract sanctity date applies (e.g., items
first controlled to Sudan for foreign policy reasons under EAA
section 6(j) have a contract sanctity date of December 28, 1993).
(6) All aircraft (powered and unpowered), helicopters, engines,
and related spare parts and components.
(i) Iran. Applications for all end-users in Iran will generally
be denied.
(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 9A994: October 22, 1987.
(ii) Syria. Applications for all end-users in Syria will
generally be denied.
(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 9A994: August 28, 1991.
(iii) Sudan. Applications for all end-users in Sudan will
generally be denied. Contract sanctity date: January 19, 1996.
(7) Heavy duty, on-highway tractors.
(i) Iran. Applications for all end-users in Iran will generally
be denied. Contract sanctity date: August 28, 1991.
(ii) Syria. Applications for military end-users or for military
end-uses in Syria will generally be denied. Applications for non-
military end-users or for non-military end-uses in Syria will be
considered on a case-by-case basis. Contract sanctity date: August
28, 1991.
(iii) Sudan. Applications for military end-users or for military
end-uses in Sudan will generally be denied. Applications for non-
military end-users or for non-military end-uses in Sudan will be
considered on a case-by-case basis. Contract sanctity date: January
19, 1996.
(8) Off-highway wheel tractors of carriage capacity 9t (10 tons)
or more.
(i) Iran. Applications for all end-users in Iran will generally
be denied. Contract sanctity date: October 22, 1987.
(ii) Syria. Applications for military end-users or for military
end-uses in Syria will generally be denied. Applications for non-
military end-users or for non-military end-uses in Syria will be
considered on a case-by-case basis. Contract sanctity date: August
28, 1991.
(iii) Sudan. Applications for military end-users or for military
end-uses in Sudan will generally be denied. Applications for non-
military end-users or for non-military end-uses in Sudan will be
considered on a case-by-case basis. Contract sanctity date: January
19, 1996.
(9) Large diesel engines (greater than 400 horsepower) and parts
to power tank transporters.
(i) Iran. Applications for all end-users in Iran will generally
be denied. Contract sanctity date: October 22, 1987.
(ii) Sudan. Applications for military end-users or for military
end-uses in Sudan will generally be denied. Applications for non-
military end-users or for non-military end-uses in Sudan will be
considered on a case-by-case basis. Contract sanctity date: January
19, 1996.
(10) Cryptographic, cryptoanalytic, and cryptologic equipment.
(i) Iran. Applications for all end-users in Iran will generally
be denied.
[[Page 12796]]
(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) Syria. A license is required for all national security-
controlled cryptographic, cryptoanalytic, and cryptologic equipment
to all end-users. Applications for all end-users in Syria will
generally be denied. Contract sanctity date for cryptographic,
cryptoanalytic, and cryptologic equipment that was subject to
national security controls on August 28, 1991: see paragraph
(c)(1)(ii) of this Supplement.
(iii) Sudan. Applications for all end-users in Sudan of any such
equipment will generally be denied. Contract sanctity date for
Sudan: January 19, 1996, unless a prior contract sanctity date
applies (e.g., items first controlled to Sudan for foreign policy
reasons under EAA section 6(j) have a contract sanctity date of
December 28, 1993).
(11) Navigation, direction finding, and radar equipment.
(i) Iran. Applications for all end-users in Iran will generally
be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan will generally be denied. Applications for non-
military end-users or for non-military end-uses in Sudan will be
considered on a case-by-case basis. Contract sanctity date for
Sudan: January 19, 1996, unless a prior contract sanctity date
applies (e.g., items first controlled to Sudan for foreign policy
reasons under EAA section 6(j) have a contract sanctity date of
December 28, 1993).
(12) Electronic test equipment.
(i) Iran. Applications for all end-users in Iran will generally
be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(13) Mobile communications equipment.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(14) Acoustic underwater detection equipment.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied.
(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) Syria. A license is required for acoustic underwater
detection equipment that was subject to national security controls
on August 28, 1991, to all end-users. Applications for military end-
users or for military end-uses in Syria will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis. Contract
sanctity date for acoustic underwater detection equipment that was
subject to national security controls on August 28, 1991: see
paragraph (c)(1)(ii) of this Supplement.
(iii) Sudan. Applications for military end-users or for military
end-uses to Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(15) Portable electric power generators.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied. Contract sanctity date: October
22, 1987.
(ii) Reserved.
(16) Vessels and boats, including inflatable boats.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(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) Syria. A license is required for national security-
controlled vessels and boats. Applications for military end-users or
for military end-uses in Syria of these items will generally be
denied. Applications for non-military end-users or for non-military
end-uses in Syria will be considered on a case-by-case basis.
Contract sanctity date for vessels and boats that were subject to
national security controls on August 28, 1991: see paragraph
(c)(1)(ii) of this Supplement.
(iii) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(17) Marine and submarine engines (outboard/inboard, regardless
of horsepower).
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
[[Page 12797]]
(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) Syria. A license is required for all marine and submarine
engines subject to national security controls to all end-users.
Applications for military end-users or for military end-uses in
Syria of these items will generally be denied. Applications for non-
military end-users or for non-military end-uses in Syria will be
considered on a case-by-case basis. Contract sanctity date for
marine and submarine engines that were subject to national security
controls on August 28, 1991: See paragraph (c)(1)(ii) of this
Supplement.
(iii) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(18) Underwater photographic equipment.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis.
(A) Contract sanctity date for underwater photographic 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 underwater photographic
equipment: August 28, 1991.
(iii) Sudan. Applications for military end-users or for military
end-uses in Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(19) Submersible systems.
(i) Iran. Applications for all end-users in Iran of such systems
will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such systems will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such systems will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(20) Scuba gear and related equipment.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied. No contract sanctity is
available for such items to Iran.
(ii) Sudan. Applications for military end-users and end-uses in
Sudan of these items will generally be denied. Applications for non-
military end-users or for non-military end-uses in Sudan will be
considered on a case-by-case basis. Contract sanctity date: January
19, 1996.
(21) Pressurized aircraft breathing equipment.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied. Contract sanctity date: October
22, 1987.
(ii) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date: January 19, 1996.
(22) Computer numerically controlled machine tools.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(23) Vibration test equipment.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(24) Digital computers with a CTP of 6 or above, assemblies,
related equipment, equipment for development or production of
magnetic and optical storage equipment, and materials for
fabrication of head/disk assemblies.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of
[[Page 12798]]
these items will generally be denied. Applications for non-military
end-users or for non-military end-uses will be considered on a case-
by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(25) Telecommunications equipment.
(i) A license is required for the following telecommunications
equipment:
(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) Iran. Applications for all end-users in Iran of such
equipment will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(26) Microprocessors operating at a clock speed over 25 MHz.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(A) Contract sanctity date for military end-users and end-uses
of microprocessors 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 microprocessors for
all end-users: August 28, 1991.
(ii) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(A) Contract sanctity date for microprocessors 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 microprocessors: August
28, 1991.
(iii) Sudan.Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(27) Semiconductor manufacturing equipment. For Iran, Syria or
Sudan, a license is required for all such equipment described in
ECCNs 3B001 and 3B991.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(A) Contract sanctity date for such 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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(28) Software specially designed for the computer-aided design
and manufacture of integrated circuits.
(i) Iran. Applications for all end-users in Iran of such
software will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such software will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such software will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(29) Packet switches. Equipment described in ECCNs 5A001.c and
5A994.
(i) Iran. Applications for all end-users in Iran of such
equipment will generally be denied.
(A) Contract sanctity date for military end-users and end-uses
in Iran of packet switches 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 packet switches for
all end-users: August 28, 1991.
(ii) Syria. Applications for military end-users or for military
end-uses in Syria of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such equipment will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(30) Specially designed software for air traffic control
applications that uses any digital signal processing techniques for
automatic target tracking or that has a facility for electronic
tracking.
[[Page 12799]]
(i) Iran. Applications for all end-users in Iran of such
software will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such software will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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 such software: August
28, 1991.
(iii) Sudan. Applications for military end-users or for military
end-uses in Sudan of such software will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(31) Gravity meters having static accuracy of less (better) than
100 microgal, or gravity meters of the quartz element (worden) type.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(32) Magnetometers with a sensitivity lower (better) than 1.0 nt
rms per square root Hertz.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(33) Fluorocarbon compounds described in ECCN 1C994 for cooling
fluids for radar.
(i) Iran. Applications for all end-users in Iran of such
compounds will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of such compounds will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of such compounds will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(34) High strength organic and inorganic fibers (kevlar)
described in ECCN 1C210.
(i) Iran. Applications for all end-users in Iran of such fibers
will generally be denied.
(A) Contract sanctity date for military end-users and end-uses
of high strength organic and inorganic fibers (kevlar) described in
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 1C210 for all end-users:
August 28, 1991.
(ii) Syria. Applications for military end-users or for military
end-uses in Syria of such fibers will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(A) Contract sanctity date for high strength organic and
inorganic fibers (kevlar) described in 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 1C210: August 28, 1991.
(iii) Sudan. Applications for military end-users or for military
end-uses in Sudan of such fibers will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(35) Machines described in ECCNs 2B003 and 2B993 for cutting
gears up to 1.25 meters in diameter.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(A) Contract sanctity date for military end-users and end-uses
of such 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 such machines for all
end-users: August 28, 1991.
(ii) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(36) Aircraft skin and spar milling machines.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
[[Page 12800]]
(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) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(37) Manual dimensional inspection machines described in ECCN
2B992.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(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) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(38) Robots capable of employing feedback information in real
time processing to generate or modify programs.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied.
(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 paragraph (c)(1)(i) of this Supplement.
(B) Contract sanctity date for all other such robots: August 28,
1991.
(ii) Syria. Applications for military end-users or for military
end-uses in Syria of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Syria will be considered on a case-by-case basis.
(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) Sudan. Applications for military end-users or for military
end-uses in Sudan of these items will generally be denied.
Applications for non-military end-users or for non-military end-uses
in Sudan will be considered on a case-by-case basis. Contract
sanctity date for Sudan: January 19, 1996, unless a prior contract
sanctity date applies (e.g., items first controlled to Sudan for
foreign policy reasons under EAA section 6(j) have a contract
sanctity date of December 28, 1993).
(39) Explosive device detectors.
(i) Iran. Applications for all end-users in Iran of these items
will generally be denied. Contract sanctity date: January 19, 1996.
(ii) Syria. Applications for all end-users in Syria of these
items will generally be denied. Contract sanctity date: January 19,
1996.
(iii) Sudan. Applications for all end-users in Sudan of these
items will generally be denied. Contract sanctity date: January 19,
1996.
Supplement No. 3 to Part 742--High Performance Computers; Safeguard
Conditions and Related Information
This Supplement sets forth the security conditions and safeguard
plans for the export, reexport, or in-country transfer of high
performance computers that may be imposed by BXA to certain
destinations. The licensing policies for the export, reexport, or
in-country transfer of high performance computers are set forth in
Sec. 742.12 of this part.
(a) Safeguard conditions. Following interagency review of the
application, the Bureau of Export Administration (BXA) will instruct
the exporter to submit a safeguard plan signed by the ultimate
consignee and certified by the export control authorities of the
importing country (see Certification by export control authorities
of importing country in this Supplement). The safeguard plan must
indicate that the ultimate consignee agrees to implement those
safeguards required by the BXA as a condition of issuing the
license. BXA will inform exporters concerning which of the following
safeguards will be imposed as license conditions:
(1) The applicant will assume responsibility for providing
adequate security against physical diversion of the computer during
shipment (e.g., delivery by either attended or monitored shipment,
using the most secure route possible--this precludes using the
services or facilities of any country in Computer Tier 4).
(2) There will be no reexport or intra-country transfer of the
computer without prior written authorization from BXA.
(3) The computer systems will be used only for those activities
approved on the license or reexport authorization.
(4) There will be no changes either in the end-users or the end-
uses indicated on the license without prior written authorization by
BXA.
(5) Only software that supports the approved end-uses will be
shipped with the computer system.
(6) The end-user will station security personnel at the computer
using facility to ensure that the appropriate security measures are
implemented.
(7) The exporter will station representatives at the computer
using facility, or make such individuals readily available, to guide
the security personnel in the implementation and operation of the
security measures.
(8) The security personnel will undertake the following measures
under the guidance of the exporter's representatives:
(i) The physical security of the computer using facility;
(ii) The establishment of a system to ensure the round-the-clock
supervision of computer security;
(iii) The inspection, if necessary, of any program or software
to be run on the computer system in order to ensure that all usage
conforms to the conditions of the license;
(iv) The suspension, if necessary, of any run in progress and
the inspection of any output generated by the computer to determine
whether the program runs or output conform with the conditions of
the license;
(v) The inspection of usage logs daily to ensure conformity with
the conditions of the license and the retention of records of these
logs for at least a year;
(vi) The determination of the acceptability of computer users to
ensure conformity with the conditions of the license;
(vii) The immediate reporting of any security breaches or
suspected security breaches to the government of the importing
country and to the exporter's representatives;
(viii) The execution of the following key tasks:
(A) Establishment of new accounts;
(B) Assignment of passwords;
(C) Random sampling of data;
(D) Generation of daily logs;
(ix) The maintenance of the integrity and security of tapes and
data files containing archived user files, log data, or system
backups.
(9) The exporter's representatives will be present when certain
key functions are being carried out (e.g., the establishment of new
accounts, the assignment of passwords, the random sampling of data,
the generating of daily logs, the setting of limits to computer
resources available to users in the development mode, the
certification of
[[Page 12801]]
programs for conformity to the approved end-uses before they are
allowed to run in the production mode, and the modification to
previously certified production programs).
(10) The security personnel and the exporter's representatives
will provide monthly reports on the usage of the computer system and
on the implementation of the safeguards.
(11) The computer system will be housed in one secure building
and protected against theft and unauthorized entry at all times.
(12) Restricted nationals, i.e., nationals of Computer Tier 4
countries, will not be allowed access to computers:
(i) No physical or computational access to computers may be
granted to restricted nationals without prior written authorization
from BXA, except that commercial consignees as described in this
Supplement are prohibited only from giving such nationals user-
accessible programmability without prior written authorization;
(ii) No passwords or IDs may be issued to restricted nationals;
(iii) No work may be performed on the computer on behalf of
restricted nationals; and
(iv) No conscious or direct ties may be established to networks
(including their subscribers) operated by restricted nationals.
(13) Physical access to the computer, the operator consoles, and
sensitive storage areas of the computer using facility will be
controlled by the security personnel, under the guidance and
monitoring of the exporter's representatives, and will be limited to
the fewest number of people needed to maintain and run the computer
system.
(14) The computer will be equipped with the necessary software
to: Permit access to authorized persons only, detect attempts to
gain unauthorized access, set and maintain limits on usage,
establish accountability for usage, and generate logs and other
records of usage. This software will also maintain the integrity of
data and program files, the accounting and audit system, the
password or computational access control system, and the operating
system itself.
(i) The operating system will be configured so that all jobs can
be designated and tracked as either program development jobs or as
production jobs.
(ii) In the program development mode, users will be free,
following verification that their application conforms to the agreed
end-use, to create, edit, or modify programs, to use utilities such
as editors, debuggers, or compilers and to verify program operation.
Programs in the development mode will be subject to inspection as
provided by paragraph (a)(8)(iii) of this Supplement.
(iii) In the production mode, users will have access to the full
range of computer resources, but will be prohibited from modifying
any program or using utilities that could modify any program. Before
being allowed to run in the production mode, a program will have to
be certified for conformity to approved end-uses by the security
personnel and the exporter's representatives.
(iv) Programs certified for execution in the production mode
will be protected from unauthorized modification by appropriate
software and physical security measures. Any modifications to
previously certified production programs will be approved by the
security personnel under the guidance and monitoring of the
exporter's representatives.
(v) The computer will be provided with accounting and audit
software to ensure that detailed logs are maintained to record all
computer usage. A separate log of security-related events will also
be kept.
(vi) For each job executed in the production mode, the operating
system will record execution characteristics in order to permit
generation of a statistical profile of the program executed.
(15) The source code of the operating system will be accessible
only to the exporter's representatives. Only those individuals will
make changes in this source code.
(16) The security personnel, under the guidance of the
exporter's representatives, will change passwords for individuals
frequently and at unpredictable intervals.
(17) The security personnel, under the guidance of the
exporter's representatives, will have the right to deny passwords to
anyone. Passwords will be denied to anyone whose activity does not
conform to the conditions of the license.
(18) Misuse of passwords by users will result in denial of
further access to the computer.
(19) The exporter's representatives will install a strict
password system and provide guidance on its implementation.
(20) Only the exporter's representatives will be trained in
making changes in the password system and only they will make such
changes.
(21) No computer will be networked to other computers outside
the computer center without prior authorization from BXA.
(22) Generally, remote terminals will not be allowed outside the
computer using facility without prior authorization by BXA. If
remote terminals are specifically authorized by the license:
(i) The terminals will have physical security equivalent to the
safeguards at the computer using facility;
(ii) The terminals will be constrained to minimal amounts of
computer resources (CPU time, memory access, number of input-output
operations, and other resources);
(iii) The terminals will not be allowed direct computational
access to the computer (i.e., the security personnel, under the
guidance of the exporter's representatives, will validate the
password and identity of the user of any remote terminals before any
such user is permitted to access the computer); all terminals will
be connected to the computer system by a dedicated access line and a
network access controller.
(23) There will be no direct input to the computer from remote
terminals. Any data originating from outside the computer using
facility, except for direct input from terminals within the same
compound as the computer using facility, will first be processed by
a separate processor or network access controller in order to permit
examination of the data prior to its entry into the computer.
(24) The exporter will perform all maintenance of the computer
system.
(25) Spare parts kept on site will be limited to the minimum
amount. Spares will be kept in an area accessible only to the
exporter's representatives. These representatives will maintain a
strict audit system to account for all spare parts.
(26) No development or production technology on the computer
system will be sent with the computer to the ultimate consignee.
(27) The end-user must immediately report any suspicions or
facts concerning possible violations of the safeguards to the
exporter and to the export control authorities of the importing
country.
(28) The exporter must immediately report any information
concerning possible violations of the safeguards to BXA. A violation
of the safeguards might constitute grounds for suspension or
termination of the license, preventing the shipment of unshipped
spare parts, or the denial of additional licenses for spare parts,
etc.
(29) The end-user will be audited quarterly by an independent
consultant who has been approved by the export control authorities
of the importing and exporting countries, but is employed at the
expense of the end-user. The consultant will audit the computer
usage and the implementation of the safeguards.
(30) The installation and operation of the computer will be
coordinated and controlled by the following management structure:
(i) Steering Committee. The Steering Committee will comprise
nationals of the importing country who will oversee the management
and operation of the computer.
(ii) Security Staff. The Security Staff will be selected by the
end-user or the government of the importing country to ensure that
the required safeguards are implemented. This staff will be
responsible for conducting an annual audit to evaluate physical
security, administrative procedures, and technical controls.
(iii) Technical Consultative Committee. This committee will
comprise technical experts from the importing country and the
exporting company who will provide guidance in operating and
maintaining the computer. At least one member of the committee will
be an employee of the exporter. The committee will approve all
accounts and maintain an accurate list of all users. In addition,
the committee will advise the Steering Committee and the Security
Staff concerning the security measures needed to ensure compliance
with the safeguards required by the license.
(31) An ultimate consignee who is a multiple-purpose end-user,
such as a university, will establish a peer review group comprising
experts who represent each department or application area authorized
for use on the computer under the conditions of the license. This
group shall have the following responsibilities:
(i) Review all requests for computer usage and make
recommendations concerning the acceptability of all projects and
users;
(ii) Submit these recommendations to the Security Staff and
Technical Consultative Committee for review and approval (see
paragraph (a)(28) of this Supplement);
(iii) Establish acceptable computer resource parameters for each
project and
[[Page 12802]]
review the results to verify their conformity with the authorized
end-uses, restrictions, and parameters; and
(iv) Prepare monthly reports that would include a description of
any runs exceeding the established parameters and submit them to the
security staff.
(32) The end-user will also cooperate with any post-shipment
inquiries or inspections by the U.S. Government or exporting company
officials to verify the disposition and/or use of the computer,
including access to the following:
(i) Usage logs, which should include, at a minimum, computer
users, dates, times of use, and amount of system time used;
(ii) Computer access authorization logs, which should include,
at a minimum, computer users, project names, and purpose of
projects.
(33) The end-user will also cooperate with the U.S. Government
or exporting company officials concerning the physical inspection of
the computer using facility, on short notice, at least once a year
and will provide access to all data relevant to computer usage. This
inspection will include:
(i) Analyzing any programs or software run on the computer to
ensure that all usage complies with the authorized end-uses on the
license. This will be done by examining user files (e.g., source
codes, machine codes, input/output data) that are either on-line at
the time of the inspection or that have been previously sampled and
securely stored.
(ii) Checking current and archived usage logs for conformity
with the authorized end-uses and the restrictions imposed by the
license.
(iii) Verifying the acceptability of all computer users in
conformity with the authorized end-uses and the restrictions imposed
by the license.
(34) Usage requests that exceed the quantity of monthly CPU time
specified on the license shall not be approved without prior written
authorization from the BXA. Requests for computational access
approval shall include a description of the intended purpose for
which access is sought.
(35) In addition to, or in lieu of, the normal access by on-site
exporting company staff or its representatives, the company, when
required by the exporting government, will provide a separate remote
electronic access capability to the computer for the purposes of
maintenance, troubleshooting, inspection of work in progress, and
auditing of all work performed on the computer. On-site and central
exporting company hardware and software maintenance facilities, at
the direction of the exporting company staff or its representatives,
to gather information such as:
(i) Statistical profiles of production jobs;
(ii) Logs of jobs run in both production and development mode;
(iii) Logs and reports of security related events.
If such method is used, the remote maintenance facilities will
be considered part of the operating system and protected
accordingly, and will be available only to exporting company
operational staff or its representatives. The maintenance hardware
and software and associated communication links will be protected to
ensure the integrity and authenticity of data and programs and to
prevent tampering with hardware.
(36) The export company staff or its representatives will be
required to provide personnel for a specified period of time at the
computer facility for management, operation, and safeguarding of the
computer.
(b) Certification by export control authorities of importing
country.
(1) The following importing government certification may be
required under Sec. 742.12 of this part:
This is to certify that (name of ultimate consignee) has
declared to (name of appropriate foreign government agency) that the
computer (model name) will be used only for the purposes specified
in the end-use statement and that the ultimate consignee will
establish and adhere to all the safeguard conditions and perform all
other undertakings described in the end-use statement.
The (name of appropriate foreign government agency) will advise
the United States Government of any evidence that might reasonably
indicate the existence of circumstances (e.g., transfer of
ownership) that could affect the objectives of the security
safeguard conditions.
(2) Other importing government assurances regarding prohibited
activities may also be required on a case-by-case basis.
(c) Commercial consignees.
Exports or reexports of computers that are solely dedicated to
the following non-scientific and non-technical commercial business
uses will usually be eligible for a reduced set of security
safeguard conditions:
(1) Financial services (e.g., banking, securities and commodity
exchanges);
(2) Insurance;
(3) Reservation systems;
(4) Point-of-sales systems;
(5) Mailing list maintenance for marketing purposes;
(6) Inventory control for retail/wholesale distribution.
PART 744--CONTROL POLICY: END-USER AND END-USE BASED
Sec.
744.1 General provisions.
744.2 Restrictions on certain nuclear end-uses.
744.3 Restrictions on certain missile end-uses.
744.4 Restrictions on certain chemical and biological weapons end-
uses.
744.5 Restrictions on certain maritime nuclear propulsion end-uses.
744.6 Restrictions on certain activities of U.S. persons.
744.7 Restrictions on certain exports to and for the use of certain
foreign vessels or aircraft.
744.8 Restrictions on certain exports to all countries for Libyan
aircraft.
Supplement No. 1 to Part 744--Missile Technology Projects
Supplement No. 2 to Part 744--[Reserved]
Supplement No. 3 to Part 744--Countries Not Subject to Certain Nuclear
End-Use Restrictions in Sec. 744.2(a)
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; E.O. 12058, 3 CFR, 1978
Comp., p. 179; E.O. 12851, 3 CFR 1993 Comp., p. 608; E.O. 12924, 3
CFR, 1994 Comp., p. 917; E.O. 12938, 3 CFR, 1994 Comp., p. 950;
Notice of August 15, 1995 (60 FR 42767, August 17, 1995).
Sec. 744.1 General provisions.
(a) Introduction. In this part, references to the EAR are
references to 15 CFR chapter VII, subchapter C. This part contains
prohibitions against exports, reexports, and selected transfers to
certain end-users and end-uses as introduced under General Prohibition
Four (Denial Orders) and prohibitions against exports or reexports to
certain end-uses as introduced, under General Prohibition Five (End-
use/End-users). Sections 744.2, 744.3, 744.4, and 744.5 prohibit
exports and reexports of items subject to the EAR to defined nuclear,
missile, chemical and biological weapons, and nuclear maritime end-
uses. Section 744.6 prohibits certain activities by U.S. persons in
support of certain nuclear, missile, chemical, or biological end-uses
regardless of whether that support involves the export or reexport of
items subject to the EAR. Sections 744.7 and 744.8 prohibit exports and
reexports of certain items for certain aircraft and vessels. In
addition, these sections include license review standards for export
license applications submitted as required by these sections. It should
also be noted that part 764 of the EAR prohibits exports, reexports and
certain in-country transfers of items subject to the EAR to denied
parties.
(b) Steps. The following are steps you should follow in using the
provisions of this part:
(1) Review end-use and end-user prohibitions. First, review each
end-use and end-user prohibition described in this part to learn the
scope of these prohibitions.
(2) Determine applicability. Second, determine whether any of the
end-use and end-user prohibitions described in this part are applicable
to your planned export, reexport, or other activity. See Supplement No.
1 to part 732 for guidance.
Sec. 744.2 Restrictions on certain nuclear end-uses.
(a) General prohibition. In addition to the license requirements
for items
[[Page 12803]]
specified on the CCL, you may not export or reexport to any
destination, other than countries in the Supplement No. 3 to this part,
any item subject to the EAR without a license if at the time of the
export or reexport you know 1 the item will be used directly or
indirectly in any one or more of the following activities described in
paragraphs (a)(1), (a)(2), and (a)(3) of this section:
\1\ Part 772 of the EAR defines ``knowledge'' for all of the
EAR except part 760, Restrictive Trade Practices and Boycotts. The
definition, which includes variants such as ``know'' and ``reason to
know'', encompasses more than positive knowledge. Thus, the use of
``know'' in this section in place of the former wording ``know or
have reason to know'' does not lessen or otherwise change the
responsibilities of persons subject to the EAR.
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(1) Nuclear explosive activities. Nuclear explosive activities,
including research on or development, design, manufacture,
construction, testing or maintenance of any nuclear explosive device,
or components or subsystems of such a device.\2\ \3\
\2\ Nuclear explosive devices and any article, material,
equipment, or device specifically designed or specially modified for
use in the design, development, or fabrication of nuclear weapons or
nuclear explosive devices are subject to export licensing or other
requirements of the Office of Defense Trade Controls, U.S.
Department of State, or the licensing or other restrictions
specified in the Atomic Energy Act of 1954, as amended. Similarly,
items specifically designed or specifically modified for use in
devising, carrying out, or evaluating nuclear weapons tests or
nuclear explosions (except such items as are in normal commercial
use for other purposes) are subject to the same requirements.
\3\ Also see Secs. 744.5 and 748.4 of the EAR for special
provisions relating to technical data for maritime nuclear
propulsion plants and other commodities.
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(2) Unsafeguarded nuclear activities. Activities including research
on, or development, design, manufacture, construction, operation, or
maintenance of any nuclear reactor, critical facility, facility for the
fabrication of nuclear fuel, facility for the conversion of nuclear
material from one chemical form to another, or separate storage
installation, where there is no obligation to accept International
Atomic Energy Agency (IAEA) safeguards at the relevant facility or
installation when it contains any source or special fissionable
material (regardless of whether or not it contains such material at the
time of export), or where any such obligation is not met.
(3) Safeguarded and unsafeguarded nuclear activities. Safeguarded
and unsafeguarded nuclear fuel cycle activities, including research on
or development, design, manufacture, construction, operation or
maintenance of any of the following facilities, or components for such
facilities: 4
\4\ Such activities may also require a specific authorization
from the Secretary of Energy pursuant to Sec. 57.b.(2) of the Atomic
Energy Act of 1954, as amended, as implemented by the Department of
Energy's regulations published in 10 CFR 810.
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(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) Additional prohibition on exporters or reexporters informed by
BXA. BXA may inform an exporter or reexporter, either individually by
specific notice or through amendment to the EAR, that a license is
required for export or reexport of specified items to specified end-
users, because BXA has determined that there is an unacceptable risk of
use in, or diversion to, any of the activities described in paragraph
(a) of this section. 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 orally, it will be followed by a written
notice within two working days signed by the Deputy Assistant Secretary
for Export Administration. The absence of any such notification does
not excuse the exporter or reexporter from compliance with the license
requirements of paragraph (a) of this section.
(c) Exceptions. Despite the prohibitions described in paragraph (a)
and (b) of this section, you may export technology subject to the EAR
under the License Exception provided in Sec. 740.8(a) of the EAR for
operating technology and software (OTS) and under the License Exception
provided in Sec. 740.8(b) of the EAR for sales technology (STS) but
only to and for use in countries listed in Country Group A:1 (see
Supplement No. 1 to part 740 of the EAR) and New Zealand. All the terms
and conditions of License Exception 13 apply except that this exception
may only be used for exports to the countries listed in Country Group
A:1 and New Zealand notwithstanding the provisions of part 740 of the
EAR.
(d) License review standards. The following factors are among those
used by the United States to determine whether to grant or deny license
applications required under this section:
(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 Sec. 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.
[[Page 12804]]
Sec. 744.3 Restrictions on certain missile end-uses.
(a) General prohibition. In addition to the license requirements
for items specified on the CCL, you may not export or reexport an item
subject to the EAR to any destination, including Canada, without a
license if at the time of the export or reexport you know the item:
(1) Is destined to or for a project listed in the footnote to
Country Group D:4 (see Supplement No. 1 to part 740 of the EAR); or
(2) Will be used in the design, development, production or use of
missiles in or by a country listed in Country Group D:4, whether or not
that use involves a listed project.
(b) Additional prohibition on exporters informed by BXA. BXA may
inform the exporter or reexporter, either individually by specific
notice or through amendment to the EAR, that a license is required for
a specific export or reexport, or for exports or reexports of specified
items to a certain end-user, because there is an unacceptable risk of
use in or diversion to activities described in paragraph (a) of this
section, anywhere in the world. 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 orally, it will be
followed by a written notice within two working days signed by the
Deputy Assistant Secretary for Export Administration. However, the
absence of any such notification does not excuse the exporter from
compliance with the license requirements of paragraph (a) of this
section. An illustrative list of projects is included in a footnote to
Country Group D:4. Exporters and reexporters are deemed to have been
informed that an individual license is required to export or reexport
to these projects. Exporters should be aware that the list of projects
in Country Group D:4 is not comprehensive; extra caution should be
exercised when making any shipments to a country listed in Country
Group D:4.
(c) Exceptions. No License Exceptions apply to the prohibitions
described in paragraph (a) and (b) of this section.
(d) License review standards for certain missile end-uses. (1)
Applications to export the items subject to this section will be
considered on a case-by-case basis to determine whether the export
would make a material contribution to the proliferation of missiles.
When an export is deemed to make a material contribution, the license
will be denied.
(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 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 non-proliferation credentials of the importing country;
(v) The types of assurances or guarantees against design,
development, production or use for missiles delivery purposes that are
given in a particular case; and
(vi) The existence of a pre-existing contract.
Sec. 744.4 Restrictions on certain chemical and biological weapons
end-uses.
(a) General prohibition. In addition to the license requirements
for items specified on the CCL, you may not export or reexport an item
subject to the EAR to any destination, including Canada, without a
license if at the time of the export or reexport you know the item will
be used in the design, development, production, stockpiling, or use of
chemical or biological weapons in or by a country listed in Country
Group D:3 (see Supplement No. 1 to part 740 of the EAR).
(b) Additional prohibition on exporters informed by BXA. BXA may
inform the exporter or reexporter, either individually by specific
notice or through amendment to the EAR, that a license is required for
a specific export or reexport, or for export or reexport of specified
items to a certain end-user, because there is an unacceptable risk of
use in or diversion to such activities, anywhere in the world. 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 orally, it will be followed by a written notice within two
working days signed by the Deputy Assistant Secretary for Export
Administration. However, the absence of any such notification does not
excuse the exporter from compliance with the license requirements of
paragraph (a) of this section.
(c) Exceptions. No License Exceptions apply to the prohibitions
described in paragraphs (a) and (b) of this section.
(d) License review standards. (1) Applications to export or
reexport items subject to this section will be considered on a case-by-
case basis to determine whether the export or reexport would make a
material contribution to the design, development, production,
stockpiling, or use of chemical or biological weapons. When an export
is deemed to make such a contribution, the license will be denied.
(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 in terms of its contribution to
the design, development, production, stockpiling, or use of chemical or
biological weapons;
(iii) The non-proliferation credentials of the importing country;
(iv) The types of assurances or guarantees against 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.5
\5\ See Supplement No. 1 to part 742 of the EAR for relevant
contract sanctity dates.
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Sec. 744.5 Restrictions on certain maritime nuclear propulsion end-
uses.
(a) General prohibition. In addition to the license requirements
for items specified on the CCL, you may not export or reexport certain
technology subject to the EAR to any destination, including Canada,
without a license if at the time of the export or reexport you know the
item is for use in connection with a foreign maritime nuclear
propulsion project. This prohibition applies to any technology relating
to maritime nuclear propulsion plants, their land prototypes, and
special facilities for their construction, support, or maintenance,
including any machinery, devices, components, or equipment specifically
developed or designed for use in such plants or facilities.
(b) Exceptions. The exceptions provided in part 740 of the EAR do
not apply to the prohibitions described in paragraph (a) of this
section.
(c) License review standards. It is the policy of the United States
Government not to participate in and not to authorize United States
firms or individuals to participate in foreign naval nuclear propulsion
plant projects, except under an Agreement for Cooperation on naval
nuclear propulsion executed in accordance with Sec. 123(d) of the
Atomic Energy Act of 1954. However, it is the policy of the United
States Government to encourage United States firms and individuals to
participate in maritime (civil) nuclear propulsion plant projects in
friendly foreign countries provided
[[Page 12805]]
that United States naval nuclear propulsion information is not
disclosed.
Sec. 744.6 Restrictions on certain activities of U.S. persons.
(a) General prohibitions--(1) Activities related to exports. (i) No
U.S. person as defined in paragraph (c) of this section may, without a
license from BXA, export, reexport, or transfer to or in any country
other country, any item where that person knows that such item:
(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 a
country listed in Country Group D:3 (see Supplement No. 1 to part 740
of the EAR).
(ii) No U.S. person shall, without a license from BXA, 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) Other activities unrelated to exports. No U.S. person shall,
without a license from BXA:
(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 directly will directly assist in the design, development,
production, stockpiling, or use of chemical or biological weapons in or
by a country listed in Country Group D:3 (see Supplement No. 1 to part
740 of the EAR).
(3) Whole plant requirement. No U.S. person shall, without a
license from BXA, participate in the design, construction, export, or
reexport of a whole plant to make chemical weapons precursors
identified in ECCN 1C350, in countries other than those listed in
Country Group A:3 (Australia Group) (See Supplement No. 1 to part 740
of the EAR).
(b) Additional prohibitions on U.S. persons informed by BXA. BXA
may inform U.S. persons, either individually or through amendment to
the EAR, that a license is required because an activity could involve
the types of participation and support described in paragraph (a) of
this section anywhere in the world.
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 orally, it will be followed by a written notice within two
working days signed by the Deputy Assistant Secretary for Export
Administration. However, the absence of any such notification does not
excuse the exporter from compliance with the license requirements of
paragraph (a) of this section.
(c) Definition of U.S. person. For purposes of this section, the
term U.S. person includes:
(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) Exceptions. No License Exceptions apply to the prohibitions
described in paragraphs (a) and (b) of this section.
(e) License review standards. Applications to engage in activities
otherwise prohibited by this section will be denied if the activities
would make a material contribution to the design, development,
production, stockpiling, or use of chemical or biological weapons, or
of missiles.
Sec. 744.7 Restrictions on certain exports to and for the use of
certain foreign vessels or aircraft.
(a) General end-use prohibition. In addition to the license
requirements for items specified on the CCL, you may not export or
reexport an item subject to the EAR to, or for the use of, a foreign
vessel or aircraft, whether an operating vessel or aircraft or one
under construction, located in any port including a Canadian port,
unless a License Exception or NLR permits the shipment to be made:
(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) Exception for U.S. and Canadian carriers.
(1) Notwithstanding the general end-use prohibition in paragraph
(a) of this section, export and reexport may be made of the commodities
described in paragraph (b)(3) of this section, for use by or on a
specific vessel or plane of U.S. or Canadian registry located at any
seaport or airport outside the United States or Canada except a port in
North Korea or Country Group D:1 (excluding the PRC and Romania), (see
Supplement No. 1 to part 740) provided that such commodities are 6
all of the following:
\6\ Where a license is required, see Secs. 748.2 and 748.4(g) of
the EAR.
---------------------------------------------------------------------------
(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) is filed with the carrier, except that an SED is not required
when any of the commodities, other than fuel, is exported by U.S.
airlines to their own aircraft abroad for their use.
(2) Exports to U.S. or Canadian Airline's Installation or Agent.
Exports and reexports of the commodities described in paragraph (e) of
this section, except fuel, may be made to a U.S. or Canadian airline's
installation or agent in any foreign destination except North Korea or
Country Group D:1 (excluding the PRC and Romania), (see Supplement No.
1 to part 740) provided such commodities are all of the following:
(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, North
Korea 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) is filed with the carrier, except that an
[[Page 12806]]
SED 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) Applicable commodities. This Sec. 744.7 applies to the
commodities listed subject to the provisions in paragraph (b) of this
section:
(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.
Sec. 744.8 Restrictions on certain exports to all countries for Libyan
aircraft.
(a) General end-use prohibition for Libyan aircraft. In addition to
the license requirements for items specified on the CCL, you may not
export or reexport to any destination such parts and accessories
specified in paragraph (b) of this section if intended for use in the
manufacture, overhaul, or rehabilitation in any country of aircraft
that will be exported or reexported to Libya or Libyan nationals.
(b) Scope of products subject to end-use prohibition for Libyan
aircraft. The general end-use prohibition in paragraph (a) of this
section applies to items controlled by ECCNs 6A008, 6A108, 6A990,
7A001, 7A101, 7A002, 7A102, 7A003, 7A103, 7A004, 7A104, 7A006, 7A106,
7A115, 7A994, 9A001, 9A101, 9A003, 9A018.a, 9A991, and 9A994.
Supplement No. 1 to Part 744--Missile Technology Locations and Projects
------------------------------------------------------------------------
Location Projects
------------------------------------------------------------------------
Bahrain
Brazil.................................... Sonda III, Sonda IV, SS-300,
SS-1000, MB/EE Series
Missile, VLS Space Launch
Vehicle.
China..................................... M Series Missiles, CSS-2.
Egypt
India..................................... Agni, Prithvi, SLV-3
Satellite Launch.
Vehicle, Augmented Satellite
Launch.
Vehicle (ASLV), Polar
Satellite Launch.
Vehicle (PSLV),
Geostationary Satellite.
Launch Vehicle (GSLV).
Iran...................................... Surface-to-Surface Missile
Project, Scud Development
Project.
Iraq
Israel
Jordan
North Korea............................... No Dong I, Scud Development
Project.
Kuwait
Lebanon
Libya
Oman
Pakistan.................................. Haft Series Missiles.
Qatar
Saudi Arabia
South Africa.............................. Surface-to-Surface Missile
Project, Space Launch
Vehicle.
Syria
United Arab Emirates
Yemen
------------------------------------------------------------------------
Supplement No. 2 to Part 744--[Reserved]
Supplement No. 3 to Part 744--Countries Not Subject to Certain Nuclear
End-Use Restrictions in Sec. 744.2(a)
Australia
Belgium
Denmark
France
Germany
Greece
Iceland
Italy (includes San Marino and Holy See)
Japan
Luxembourg
Netherlands
New Zealand
Norway
Portugal
Spain
Turkey
United Kingdom
PART 746--EMBARGOES AND OTHER SPECIAL CONTROLS
Sec.
746.1 Introduction.
746.2 Cuba.
746.3 Iraq.
746.4 Libya.
746.5 North Korea.
746.6 Reserved.
746.7 Iran.
746.8 Rwanda.
Supplement No. 1 to Part 746--Special Sanctions on Angola Administered
by the Office of Foreign Assets Control
Supplement No. 2 to Part 746--United Nations Arms Embargoes
Administered by the Department of State: Liberia, Somalia and Countries
of the Former Yugoslavia (Bosnia-Herzegovina, Croatia, Former Yugoslav
Republic of Macedonia, Serbia and Montenegro, Slovenia)
Supplement No. 3 to Part 746--Controls on the Federal Republic of
Yugoslavia (Serbia and Montenegro), Bosnia-Herzegovina, Croatia
Administered by the Office of Foreign Assets Control
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 287c; 22 U.S.C. 6004; E.O. 12918, 59 FR 28205, 3 CFR, 1994
Comp., p. 899; E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917;
Notice of August 15, 1995 (60 FR 42767, August 17, 1995).
Sec. 746.1 Introduction.
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 or
U.S. government policies. Two categories of controls are included in
this part.
(a) Comprehensive controls. This part contains or refers to all the
BXA licensing requirements, licensing policies, and License Exceptions
for countries subject to general embargoes, currently Cuba, Libya,
North Korea, Iran and Iraq. This part is the focal point for all the
EAR requirements for transactions involving these countries.
(1) Cuba, Libya, North Korea. All the items on the Commerce Control
List (CCL) require a license to Cuba, Libya, or North Korea. In
addition, most other items subject to the EAR, but not included on the
CCL, designated by the Number ``EAR99'', require a license to Cuba,
Libya, and North Korea. Most items requiring a license to these
destinations are subject to a general policy of denial. Because these
controls extend to virtually all exports, they do not appear in the
Country Chart in part 738 of the EAR, nor are they reflected in the
Commerce Control List in part 774 of the EAR.
(2) Iran and Iraq. While BXA maintains controls on exports and
reexports to Iran and Iraq, comprehensive embargoes on transactions
involving these countries are administered by the Department of the
Treasury's Office of Foreign Assets Control (OFAC).
(b) Rwanda. The second category of EAR controls apply to Rwanda
included in this part are those that are supplemental to controls set
forth in the Country Chart in part 738. Such controls
[[Page 12807]]
are listed under each affected ECCN on the CCL in part 774 of the EAR.
(c) This part also contains descriptions of controls maintained by
the Office of Foreign Assets Control in the Treasury Department and by
Office of Defense Trade Controls in the Department of State.
Comprehensive embargoes and supplemental controls implemented by BXA
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 BXA 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.
(d) Supplement No. 1 to this part provides you with general
information on United Nations sanctions administered by the Department
of the Treasury's Office of Foreign Assets Control (OFAC) (31 CFR part
590) on UNITA in Angola.
(e) Supplement No. 2 to this part provides you with general
information on United Nations arms embargoes administered by the
Department of State (22 CFR parts 120 through 130) on all the countries
of the former Yugoslavia (Bosnia-Herzegovina, Croatia, the Former
Yugoslav Republic of Macedonia, Serbia, Montenegro, and Slovenia),
Liberia and Somalia.
(f) Supplement No. 3 to this part provides you with information on
embargoes on the Federal Republic of Yugoslavia (Serbia and Montenegro)
and certain areas of Croatia and Bosnia-Herzegovina administered by
OFAC (31 CFR part 585).
Sec. 746.2 Cuba.
(a) License requirements. As authorized by section 6 of the Export
Administration Act of 1979, as amended (EAA) and by the Trading with
the Enemy Act of 1917, as amended, you will need a license to export or
reexport all items subject to the EAR (see part 734 of the EAR for the
scope of items subject to the EAR) to Cuba, except as follows.
(1) License Exceptions. You may export without a license if your
transaction meets all the applicable terms and conditions of any of the
following License Exceptions. To determine the scope and eligibility
requirements, you will need to turn to the sections or specific
paragraphs of part 740 of the EAR (License Exceptions). Read each
License Exception carefully, as the provisions available for embargoed
countries are generally narrow.
(i) Temporary Exports (TEMP) by the news media (see
Sec. 740.4(a)(2)(viii) of the EAR).
(ii) Operating Technology and Software (OTS) for legally exported
commodities (see Sec. 740.8(a) of the EAR).
(iii) Sales Technology (STS) (see Sec. 740.8(b) of the EAR).
(iv) Software Updates (SUD) for legally exported software (see
Sec. 740.8(c) of the EAR).
(v) Parts (PTS) for one-for-one replacement in certain legally
exported commodities (see Sec. 740.5(a) of the EAR).
(vi) Baggage (BAG) (see Sec. 740.9 of the EAR).
(vii) Governments and international organizations (GOV) (see
Sec. 740.6 of the EAR).
(viii) Gift parcels and humanitarian donations (GFT) (see
Sec. 740.7 of the EAR).
(ix) Items in transit (TUS) from Canada through the U.S. (see
Sec. 740.4(b)(1)(iv) of the EAR).
(x) Aircraft and Vessels (AVS) for certain aircraft on temporary
sojourn (see Sec. 740.10(a) of the EAR).
(2) [Reserved.]
(b) Licensing policy. Items requiring a license are subject to a
general policy of denial, except as follows:
(1) Medicines, medical supplies, instruments and equipment.
Applications to export medicines, medical supplies, instruments and
equipment will generally be approved, except:
(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. 3 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
medicine, or medical supplies, instruments, or equipment 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 for the humanitarian License Exception.
(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) Related controls. OFAC maintains controls on the activities of
persons subject to U.S. jurisdiction, wherever located, involving
transactions with Cuba or any specially designated Cuban national, as
provided in 31 CFR part 515.
[[Page 12808]]
Sec. 746.3 Iraq.
(a) License requirements. OFAC administers an embargo against Iraq
under the authority of the International Emergency Economic Powers Act
of 1977, as amended, and the United Nations Participation Act of 1945,
as amended, and in conformance with United Nations Security Council
Resolutions. The applicable OFAC regulations, the Iraqi Sanctions
Regulations, are found in 31 CFR part 575. You should consult with OFAC
for authorization to export or reexport items subject to U.S.
jurisdiction to Iraq, or to any entity owned or controlled by, or
specially designated as acting for or on behalf of, the Government of
Iraq. Under the EAR, you need a license to export or reexport to Iraq
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 in the
Country Chart Column of the License Requirements section of an ECCN, or
classified under ECCNs 1C980, 1C981, 1C982, 1C983, 1C984, 5A980, 0A980,
and 0A983; however, to avoid duplication, an authorization from OFAC
constitutes authorization under the EAR, and no separate BXA
authorization is necessary. Except as noted in Sec. 746.3(a)(1) of this
part, you may not use any BXA License Exception or other BXA
authorization to export or reexport to Iraq.
(1) License Exceptions. You may export or reexport without a
license if your transaction meets all the applicable terms and
conditions of one of the following License Exceptions. Read each
License Exception carefully, as the provisions available for embargoed
countries are generally narrow.
(i) Baggage (BAG) (See Sec. 740.9 of the EAR).
(ii) Governments and international organizations (GOV) (See
Sec. 740.6 of the EAR).
(2) Exports for the official use of the United Nations, its
personnel or agencies (excluding its relief or developmental agencies).
You must consult with OFAC to determine what transactions are eligible.
(b) Iraq has been designated by the Secretary of State as a country
that has repeatedly provided support for acts of international
terrorism. For anti-terrorism controls, see Supplement 2 to part 742 of
the EAR.
(c) Related controls. OFAC maintains controls on the activities of
U.S. persons, wherever located, involving transactions with Iraq or any
specially designated Iraqi national, as provided in 31 CFR part 575.
Sec. 746.4 Libya.
(a) Introduction. The Department of the Treasury and the Department
of Commerce maintain comprehensive controls on exports and reexports to
Libya. OFAC maintains comprehensive controls on exports and
transshipments to Libya under the Libyan Sanctions Regulations (31 CFR
part 550). To avoid duplicate licensing procedures, OFAC and BXA have
allocated licensing responsibility as follows: OFAC licenses direct
exports and transshipments to Libya; BXA licenses reexports, exports of
foreign-manufactured items containing U.S.-origin parts, components or
materials, and exports of foreign-produced direct product of U.S.
technology or software. Issuance of an OFAC license also constitutes
authorization under the EAR, and no license from BXA is necessary.
Exports and reexports subject to the EAR that are not subject to the
Libyan Sanctions Regulations continue to require authorization from
BXA.
(b) License requirements--(1) Exports. OFAC and BXA both require a
license for virtually all exports (including transshipments) to Libya.
Except as noted in paragraph (b) of this section or specified in OFAC
regulation, you may not use any BXA License Exception or other BXA
authorization to export or transship to Libya. You will need a license
from OFAC for all direct exports and transshipments to Libya except
those eligible for the following BXA License Exceptions:
(i) Baggage (BAG) (see Sec. 740.9 of the EAR).
(ii) Governments and international organizations (GOV) (see
Sec. 740.6 of the EAR).
(iii) Gift parcels (GIFT) (see Sec. 740.7(a) of the EAR).
(2) Reexports. You will need a license from BXA to reexport any
U.S.-origin item from a third country to Libya, any foreign-
manufactured item containing U.S.-origin parts, components or
materials, as defined in Sec. 734.2(b)(2) of the EAR, or any national
security-controlled foreign-produced direct product of U.S. technology
or software, as defined in Sec. 734.2(b)(3) of the EAR, exported from
the U.S. after March 12, 1982. You will need a license from BXA to
reexport all items subject to the EAR (see part 734 of the EAR) to
Libya, except:
(i) Food, medicines, medical supplies, and agricultural
commodities;
(ii) Reexports eligible for the following License Exceptions (read
each License Exception carefully, as the provisions available for
embargoed countries are generally narrow):
(A) Temporary Exports (TEMP) reexports by the news media (see
Sec. 740.4(a)(2)(viii) of the EAR).
(B) Operating Technology and Software (OTS) for legally exported
commodities (see Sec. 740.8(a) of the EAR).
(C) Sales Technology (STS) (see Sec. 740.8(b) of the EAR).
(D) Software Updates (SUD) for legally exported software (see
Sec. 740.8(c) of the EAR).
(E) Parts (PTS) for one-for-one replacement in certain legally
exported commodities (Sec. 740.5(a) of the EAR).
(F) Baggage (BAG) (Sec. 740.9 of the EAR).
(G) Aircraft and Vessels (AVS) for vessels only (see
Sec. 740.10(c)(1) of the EAR).
(H) Governments and international organizations (GOV) (see
Sec. 740.6 of the EAR).
(I) Gift parcels and humanitarian donations (GFT) (see Sec. 740.7
of the EAR).
(3) License applications submitted to BXA must provide specific
answers to the following questions:
(i) How was the product received at its current location, and under
what type of authorization;
(ii) On what date was it received; and
(iii) How are inventories maintained at the current site?
(c) Licensing policy. (1) You should consult with OFAC regarding
licensing policy for transactions subject to OFAC regulation.
(2) The licensing policy for BXA controls is as follows. Licenses
will generally be denied for:
(i) Items controlled for national security purposes and related
technology and software, including controlled foreign produced products
of U.S. technology and software exported from the United States after
March 12, 1982; and
(ii) Oil and gas equipment and technology and software, if listed
in paragraph (c)(2)(vii) of this section, or if determined by BXA not
to be readily available from sources outside the United States; and
(iii) Commodities, software, and technology destined for the
petrochemical processing complex at Ras Lanuf, if listed in paragraph
(c)(2)(vii) of this section, or where such items would contribute
directly to the development or construction of that complex (items
destined for the township at Ras Lanuf, or for the public utilities or
harbor facilities associated with that township, generally will not be
regarded as making such a contribution where their functions will
[[Page 12809]]
be primarily related to the township, utilities or harbor);
(iv) Aircraft (including helicopters) or aircraft parts,
components, or accessories to Libya or the provision of engineering and
maintenance servicing of Libyan aircraft or aircraft components;
(v) Arms and related material of all types, including the sale or
transfer of weapons and ammunition, military vehicles and equipment,
paramilitary police equipment, spare parts for the aforementioned, and
equipment or supplies for the manufacture or maintenance of the
aforementioned.
(vi) Materials destined for the construction, improvement or
maintenance of Libyan civilian or military airfields and associated
facilities and equipment or any engineering or other services or
components destined for the maintenance of any Libyan civil or military
airfields or associated facilities and equipment, except emergency
equipment and equipment and services directly related to civilian air
traffic control; and
(vii) Items listed in paragraphs (c)(2)(vii) (A) through (E) and
equipment and supplies for the manufacture or maintenance of such
items:
(A) Pumps of medium or large capacity (equal to or larger than 3500
cubic meters per hour) and drivers (gas turbines and electric motors)
designed for use in the transportation of crude oil and natural gas.
(B) Equipment designed for use in crude oil export terminals, as
follows:
(1) Loading buoys or single point moorings;
(2) Flexible hoses for connection between underwater manifolds
(plem) and single point mooring and floating loading hoses of large
sizes (from 12-16 inches); or
(3) Anchor chains.
(C) Equipment not specially designed for use in crude oil export
terminals, but which because of its large capacity can be used for this
purpose, as follows:
(1) Loading pumps of large capacity (4000 m \3\/h) and small head
(10 bars);
(2) Boosting pumps within the same range of flow rates;
(3) Inline pipe line inspection tools and cleaning devices (i.e.,
pigging tools) (16 inches and above); or
(4) Metering equipment of large capacity (1000 m \3\/h and above).
(D) Refinery equipment, as follows:
(1) Boilers meeting American Society of Mechanical Engineers 1
standards;
(2) Furnaces meeting American Society of Mechanical Engineers 8
standards;
(3) Fractionation columns meeting American Society of Mechanical
Engineers 8 standards;
(4) Pumps meeting American Petroleum Institute 610 standards;
(5) Catalytic reactors meeting American Society of Mechanical
Engineers 8 standards; or
(6) Prepared catalysts, including catalysts containing platinum and
catalysts containing molybdenum.
(E) Spare parts for any of the items described in paragraph
(c)(2)(vii) of this section.
(3) Notwithstanding the presumptions of denial in paragraphs (c)(2)
(i) through (iii), licenses will generally be issued items not included
in paragraph (c)(2)(iv) through (vii) when the transaction involves:
(i) The export or reexport of commodities or technology and
software under a contract in effect prior to March 12, 1982, where
failure to obtain a license would not excuse performance under the
contract;
(ii) Reexport of items not controlled for national security
purposes that had been exported from the United States prior to March
12, 1982 or exports of foreign products incorporating such items as
components; or
(iii) Incorporation of U.S.-origin parts, components, or materials
in foreign-manufactured products destined for Libya, where the U.S.
content is 20 percent or less by value.
(4) Notwithstanding the presumption of denial in paragraph (c)(2)
(iv) through (vii), applications for reexports under a contract pre-
dating January 18, 1994, will be reviewed under the licensing policy in
effect prior to that date.
(5) Licenses will generally be considered favorably on a case-by-
case basis when the transaction involves the following items, provided
such items are not included in paragraph (c)(2) (iv) through (vii):
(i) Reexports of items subject to national security controls that
were exported prior to March 12, 1982 and exports of foreign products
incorporating such U.S.-origin components, where the particular
authorization would not be contrary to specific foreign policy
objectives of the United States; or
(ii) Items destined for use in the development or construction of
the petrochemical processing complex at Ras Lanuf, where the
transaction could be approved but for the general policy of denial set
out in paragraph (c)(2)(iii), and where either:
(A) The transaction involves a contract in effect before December
20, 1983 that requires export or reexport of the items in question; or
(B) The items had been exported from the U.S. before that date.
(iii) Other unusual situations such as transactions involving firms
with contractual commitments in effect before March 12, 1982.
(6) Licenses will generally be considered favorably on a case-by-
case basis for the reexport of reasonable quantities for civil use of
off-highway wheel tractors of carriage capacity of 9t (10 tons) or
more, as defined in ECCN 9A992, provided such tractors are not for uses
described in paragraph (c)(2) (iv) through (vi) of this section.
(7) All other reexports not covered by United Nations resolutions
will generally be approved, subject to any other licensing policies
applicable to a particular transaction.
(e) Libya 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.
(f) Related controls. OFAC administers broad economic sanctions on
Libya, and restricts participation by U.S. persons in transactions with
Libya or specially designated Libyan nationals. The applicable OFAC
regulations, the Libyan Sanctions Regulations, are found in 31 CFR part
550.
Sec. 746.5 North Korea.
(a) License requirements. As authorized by section 6 of the Export
Administration Act of 1979, as amended (EAA) and by the Trading with
the Enemy Act of 1917, as amended, you will need a license to export or
reexport items subject to the EAR (see part 734 of the EAR) to North
Korea, except as follows:
(1) License Exceptions. You may export without a license if your
transaction meets all the applicable terms and conditions of any of the
License Exceptions specified in this paragraph. To determine scope and
eligibility requirements, you will need to turn to the sections or
specific paragraphs of part 740 of the EAR (License Exceptions). Read
each License Exception carefully, as the provisions available for
embargoed countries are generally narrow.
(i) Temporary Exports (TEMP) by the news media (see
Sec. 740.4(a)(2)(viii) of the EAR).
(ii) Operating Technology and Software (OTS) for legally exported
commodities (see Sec. 740.8(a) of the EAR).
(iii) Sales Technology (STS) (see Sec. 740.8(b) of the EAR).
[[Page 12810]]
(iv) Software Updates (SUD) for legally exported software (see
Sec. 740.8(c) of the EAR).
(v) Parts (PTS) for one-for-one replacement in certain legally
exported commodities (Sec. 740.5(a) of the EAR).
(vi) Baggage (BAG) (Sec. 740.9 of the EAR).
(vii) Aircraft and Vessels (AVS) for fishing vessels under
governing international fishery agreements and foreign-registered
aircraft on temporary sojourn in the U.S.1 (see Sec. 740.10 (a)
and (c)(1) of the EAR).
\1\ Export of U.S. aircraft on temporary sojourn or vessels is
prohibited, 44 CFR Ch. IV, Part 403 ``Shipping restrictions: North
Korea (T-2).''
---------------------------------------------------------------------------
(viii) Governments and international organizations (GOV) (see
Sec. 740.15 of the EAR).
(ix) Gift parcels and humanitarian donations (GFT) (see Sec. 740.7
of the EAR).
(2) [Reserved]
(b) Licensing policy. Items requiring a license are subject to a
general policy of denial. Exceptions to the policy of denial are as
follows:
(1) BXA will review on a case-by-case basis applications for export
of donated human-needs items listed in Supplement No. 2 to Part 740 of
the EAR that do not qualify for the License Exception NEED (see
Sec. 740.7(b) of the EAR). Such applications include single
transactions involving exports to meet emergency needs.
(2) BXA will review on a case-by-case basis applications for
commercial sales of human-needs items. Such applications must be for
items listed in Supplement No. 2 to part 740 of the EAR, but are not
limited solely to small scale projects at the local level.
(c) North Korea 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) Related controls. OFAC maintains controls on the activities of
persons subject to U.S. jurisdiction, wherever located, involving
transactions with North Korea or any specially designated North Korean
national.
Sec. 746.6 [Reserved]
Sec. 746.7 Iran.
The Treasury Department's Office of Foreign Assets Control (OFAC)
administers a comprehensive trade and investment embargo against Iran
under the authority 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 Orders 12957 and
12959 of March 15, 1995 and May 6, 1995, respectively. 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.) BXA 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.
(a) License requirements.
(1) OFAC administered embargo. You should consult with OFAC if:
(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) BXA license requirements. A license is required under the EAR:
(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, 0A980, and 0A983; or
(ii) To reexport to Iran any of the items identified in
Sec. 746.7(a)(2)(i), except for ECCNs 2A994, 3A993, 5A992, 5A995,
6A990, 6A994, 7A994, 8A992, 8A994, 9A990, 9A992, or 9A994. 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) BXA authorization. To avoid duplication, exporters or
reexporters are not required to seek separate authorization from BXA
for an export or reexport subject both to the EAR and to OFAC's Iranian
Transactions Regulations. Therefore, if OFAC authorizes an export or
reexport, no separate authorization from BXA is necessary.
(4) Definitions. For purposes of this section, the term ``United
States person'' means any United States citizen, permanent resident
alien, entity organized under the laws of the United States (including
foreign branches), or any person in the United States; the term
``foreign person'' means those not defined as United States persons.
(b) Iran has been designated by the Secretary of State as a country
that has repeatedly provided support for acts of international
terrorism. For anti-terrorism controls, see Sec. 742.8 of the EAR and
Supplement 2 to part 742.
Sec. 746.8 Rwanda.
(a) Introduction. In addition to the controls on Rwanda reflected
on the Country Chart in Supplement 1 to part 738 of the EAR, there are
special controls on items that fall within the scope of a United
Nations Security Council arms embargo.
(b) License requirements. (1) Under Executive Order 12918 of May
26, 1994, and in conformity with United Nations Security Council (UNSC)
Resolution 918 of May 17, 1994, an embargo applies to the sale or
supply to Rwanda of arms and related materiel of all types and
regardless of origin, including weapons and ammunition, military
vehicles and equipment, paramilitary police equipment, and spare parts
for such items. You will therefore need a license for the sale, supply
or export to Rwanda of embargoed items, as listed in paragraph
(b)(1)(i) and (ii) of this section, from the territory of the United
States by any person. You will also need a license for the export,
reexport, sale or supply to Rwanda of such items by any United States
person in any foreign country or other location. (Reexport controls
imposed by this embargo apply only to reexports by U.S. persons.) You
will also need a license for the use of any U.S.-registered aircraft or
vessel to supply or transport to Rwanda any such items. These
requirements apply to embargoed items, regardless of origin.
(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 ``18,'' and items
described by ECCNs 1A988, 2B985, 5A980, 6A002.a.1,a.2,a.3 and c,
6A003.b.3 and b.4, 6D102, 6E001, 6E002, 9A115, 9A991.a, 09A84, 0A986,
and 0A988.
(2) This embargo became effective at 11:59 p.m. EDT on May 26,
1994.
[[Page 12811]]
(3) Definitions. For the purposes of this section, the term:
(i) Person means a natural person as well as a corporation,
business association, partnership, society, trust, or any other entity,
organization or group, including governmental entities; and
(ii) United States person means any citizen or national of the
United States, any lawful permanent resident of the United States, or
any corporation, business association, partnership, society, trust, or
any other entity, organization or group, including governmental
entities, organized under the laws of the United States (including
foreign branches).
(c) Licensing policy. Applications for export or reexport of all
items listed in paragraphs (b)(1)(i) and (ii) of this section are
subject to a general policy of denial. Consistent with United Nations
Security Council Resolution 918 and the United Nations Participation
Act, this embargo is effective notwithstanding the existence of any
rights or obligations conferred or imposed by any international
agreement or any contract entered into or any license or permit granted
prior to that date, except to the extent provided in regulations,
orders, directives or licenses that may be issued in the future under
Executive Order 12918 or under the EAR.
(d) Related controls. The Department of State, Office of Defense
Trade Controls, maintains controls on arms and military equipment under
the International Traffic in Arms Regulations (22 CFR parts 120 through
130).
Supplement 1 to Part 746--Special Sanctions on Angola Administered by
the Office of Foreign Assets Control
(a) Angola. BXA maintains controls on Angola as reflected on the
Country Chart in Supplement 1 to part 738 of the EAR. (See also
Sec. 746.7 of this part.) In addition, OFAC administers sanctions
against the National Union for the Total Independence of Angola
(UNITA). Under Executive Order 12865 of September 26, 1993, and
consistent with United Nations Security Council Resolution 864 of
September 15, 1993, OFAC administers an embargo on the sale or
supply of arms and related materiel of all types, including weapons
and ammunition, military vehicles and equipment and spare parts, and
petroleum and petroleum products to:
(1) UNITA; or
(2) The territory of Angola, other than through points of entry
designated by the Secretary of the Treasury, in the following
schedule:
(i) Airports:
(A) Luanda; or
(B) Katumbela, Benguela Province.
(ii) Ports:
(A) Luanda;
(B) Lobito, Benguela Province; or
(C) Namibe, Namibe Province.
(iii) Entry Points:
(A) Malongo, Cabinda.
(B) Reserved.
(b) Exporters should apply to OFAC for authorization to export
embargoed items to UNITA or to points of entry not designated by the
Secretary of the Treasury. Exports of embargoed items that are also
controlled on the CCL to end-users other than UNITA and to points of
entry designated by the Secretary of the Treasury continue to
require a license from BXA. In addition, all other items controlled
on the CCL to Angola continue to require a license from BXA.
Supplement 2 to Part 746--United Nations Arms Embargoes Administered by
the Department of State: Liberia, Somalia, and Countries of the Former
Yugoslavia (Bosnia-Herzegovina, Croatia, Former Yugoslav Republic of
Macedonia, Serbia and Montenegro, Slovenia)
(a) Former Socialist Federal Republic of Yugoslavia (Bosnia-
Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia,
Serbia and Montenegro, and Slovenia). The Department of State
administers an embargo on all weapons and military equipment,
consistent with United Nations Security Council Resolution 713 of
September 25, 1991, to the countries of the former Socialist Federal
Republic of Yugoslavia (Bosnia-Herzegovina, Croatia, the Former
Yugoslav Republic of Macedonia, Serbia and Montenegro, and
Slovenia). Exporters are advised to consult with the Department of
State, Office of Defense Trade Controls (22 CFR parts 120 through
130), regarding exports of weapons and military equipment to these
destinations.
(b) Liberia. The Department of State administers an embargo on
all weapons and military equipment to Liberia, consistent with
United Nations Security Council Resolution 788 of November 19, 1992.
Exporters are advised to consult with the Department of State,
Office of Defense Trade Controls (22 CFR parts 120 through 130),
regarding exports of weapons and military equipment.
(c) Somalia. The Department of State administers an embargo on
all weapons and military equipment to Somalia, consistent with
United Nations Security Council Resolution 733 of February 23, 1992.
Exporters are advised to consult with the Department of State,
Office of Defense Trade Controls (22 CFR parts 120 through 130),
regarding exports of weapons and military equipment.
Supplement No. 3 to Part 746--Controls on the Federal Republic of
Yugoslavia (Serbia and Montenegro), Bosnia-Herzegovina, Croatia
Administered by the Office of Foreign Assets Control
Note: OFAC administers a comprehensive embargo on the Federal
Republic of Yugoslavia (Serbia and Montenegro), certain areas of
Croatia, and Bosnian Serb-controlled areas of the Republic of
Bosnia-Herzegovina. Effective January 16, 1996, OFAC suspended the
application of sanctions on Croatia and Serbia and Montenegro.
Therefore, exporters should consult the Country Chart in Supplement
No. 1 to part 738 of the EAR for BXA controls. OFAC controls on
Bosnian Serb-controlled area of Bosnia-Herzegovina remain in effect.
(See amendment to the Federal Republic of Yugoslavia (Serbia and
Montenegro) and Bosnian Serb-Controlled Areas of the Republic of
Bosnia and Herzegovina Sanctions Regulations in the Federal Register
of January 19, 1996 (61 FR 1282) (31 CFR part 585).) This suspension
affects paragraphs (a) and (c) of this Supplement.
(a) Federal Republic of Yugoslavia (Serbia & Montenegro). OFAC
administers an embargo on exports and reexports to the Federal
Republic of Yugoslavia (Serbia and Montenegro) (FRY(S & M)). OFAC
administers this embargo under Executive Orders 12808 of May 30,
1992, 12810 of June 5, 1992, 12831 of January 15, 1993, 12846 of
April 25, 1993, and 12934 of October 25, 1994, and consistent with
United Nations Security Council Resolutions 757 of May 30, 1992, 787
of November 16, 1992, 820 of April 17, 1993, and 942 of September
23, 1994. Under this embargo, no items subject to U.S. jurisdiction
may be exported, directly or indirectly, to the FRY (S & M), or to
any entity operated from the FRY (S & M), or owned or controlled by,
or specially designated as acting for or on behalf of the Government
of the FRY (S & M). The applicable OFAC regulations, the Federal
Republic of Yugoslavia (Serbia and Montenegro) Sanctions
Regulations, are found in 31 CFR part 585. Exporters should apply to
OFAC for authorization to export or reexport items subject to the
EAR to the FRY (S & M). An authorization from OFAC constitutes
authorization under the EAR, and no BXA license is necessary.
(b) Bosnia-Herzegovina. (1) BXA maintains the controls reflected
on the Country Chart in Supplement 1 to part 738 of the EAR on
Bosnia-Herzegovina, except to the extent OFAC maintains controls on
exports or reexports to that country.
(2) OFAC maintains a comprehensive embargo on trade, including
exports from the United States or by U.S. persons to, or through,
those areas of the Republic of Bosnia-Herzegovina under the control
of the Bosnian Serb forces, or activity of any kind that promotes or
is intended to promote such dealing. OFAC maintains this embargo
under Executive Orders 12846 of April 25, 1993 and 12934 of October
25, 1994, and consistent with United Nations Security Council
Resolutions 820 of April 17, 1993 and 942 of September 23, 1994. The
applicable OFAC regulations, the Federal Republic of Yugoslavia
(Serbia and Montenegro) Sanctions Regulations, are found in 31 CFR
part 585. U.S. persons should apply to OFAC for authorization to
engage in trade-related transactions involving those areas of the
Republic of Bosnia-Herzegovina under the control of the Bosnian Serb
forces. An authorization from OFAC constitutes authorization under
the EAR, and no BXA license is necessary. You will need a license
from BXA for items controlled on the CCL to
[[Page 12812]]
Bosnia-Herzegovina when the export or reexport is destined to areas
in the Republic of Bosnia-Herzegovina not controlled by the Bosnian
Serb forces. You may need a license from BXA to reexport U.S.-origin
items from third countries to areas of the Republic of Bosnia-
Herzegovina under the control of the Bosnian Serb forces.
(c) Croatia. (1) BXA maintains the controls reflected on the
Country Chart in Supplement 1 to part 738 of the EAR on Croatia,
except to the extent OFAC maintains controls on exports or reexports
to that country.
(2) OFAC prohibits any dealing by a U.S. person relating to the
export to, or transshipment through, the United Nations Protected
Areas in the Republic of Croatia. OFAC maintains this embargo under
Executive Order 12846 of April 25, 1993, and consistent with United
Nations Security Council Resolution 820 of April 17, 1993. The
applicable OFAC regulations, the Federal Republic of Yugoslavia
(Serbia and Montenegro) Sanctions Regulations, are found in 31 CFR
part 585. U.S. persons should apply to OFAC for authorization to
engage in trade-related transactions involving the United Nations
Protected Areas in the Republic of Croatia. An authorization from
OFAC constitutes authorization under the EAR, and no BXA license is
necessary. You will need a license from BXA for items controlled on
the CCL to Croatia when the export or reexport is destined to areas
other than the United Nations Protected Areas in the Republic of
Croatia. Foreign persons may need a license from BXA to reexport
U.S.-origin items from third countries to the United Nations
Protected Areas in the Republic of Croatia.
PART 748--APPLICATIONS (CLASSIFICATION, ADVISORY, AND LICENSE) AND
DOCUMENTATION
Sec.
748.1 General provisions.
748.2 Obtaining forms; mailing addresses.
748.3 Classification and Advisory Opinions.
748.4 Basic guidance related to applying for a license.
748.5 Parties to the transaction on a license application.
748.6 General instructions for license applications.
748.7 Applying electronically for a license or Classification
request.
748.8 Unique license application requirements.
748.9 Support documents for license applications.
748.10 Import and End-User Certificates.
748.11 Statement by Ultimate Consignee and Purchaser.
748.12 Special provisions for support documents.
748.13 Delivery Verification.
Supplement No. 1 to Part 748--BXA-748P, BXA-748P-A; Item Appendix, and
BXA-748P-B; End-User Appendix, Multipurpose Applicaiton Instructions
Supplement No. 2 to Part 748--Unique License Application Requirements
Supplement No. 3 to part 748--BXA-711, Statement by Ultimate Consignee
and Purchaser Instructions
Supplement No. 4 to Part 748--Authorities Administering Import
Certificate/Delivery Verification (IC/DV) and End Use Certificate
Systems in Foreign Countries
Supplement No. 5 to Part 748--U.S. Import Certificate and Delivery
Verification Procedure
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 748.1 General provisions.
(a) Scope. In this part, references to the EAR are references to 15
CFR chapter VII, subchapter C. The provisions of this part involve
applications, whether submitted in writing or electronically, for
classifications, advisory opinions or licenses subject to the Export
Administration Regulations (EAR). All terms, conditions, provisions,
and instructions, including the applicant and consignee certifications,
contained in such form(s) are incorporated as part of the EAR. For the
purposes of this part, the term ``application'' refers to the Form BXA-
748P: Multipurpose Application or its electronic equivalent. If a
provision contained in this part relates solely to a license
application the term ``license application'' will appear.
(b) BXA responses. BXA will give a formal classification, advisory
opinion or licensing decision only through the review of a properly
completed application supported by all relevant facts and required
documentation submitted in writing or electronically to BXA.
(c) Confidentiality. Consistent with section 12(c) of the Export
Administration Act, as amended, information obtained for the purposes
of considering license applications, and other information obtained by
the U.S. Department of Commerce concerning license applications, will
not be made available to the public without the approval of the
Secretary of Commerce.
Sec. 748.2 Obtaining forms; mailing addresses.
(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 BXA offices:
Export Counseling Division
U.S. Department of Commerce, 14th Street and Pennsylvania Ave.,
N.W., Room H1099D, Washington, D.C. 20230, Telephone Number: (202)
482-4811, Facsimile Number: (202) 482-3617,
Western Regional Offices:
3300 Irvine Avenue, Ste. 345, Newport Beach, CA 92660, Telephone
Number: (714) 660-0144, Facsimile Number: (714) 660-9347,
5201 Great America Pkwy, Ste. 226, Santa Clara, CA 95054, Telephone
Number: (408) 748-7450, Facsimile Number: (408) 748-7470
(b) For the convenience of foreign consignees and other foreign
parties, certain BXA 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 Export Administration, 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 Export Administration, U.S. Department of
Commerce, 14th Street and Pennsylvania Avenue N.W., Room 2705,
Washington, D.C. 20044, Attn: ``Application Enclosed''. BXA will not
accept applications sent C.O.D.
Sec. 748.3 Classification and Advisory Opinions.
(a) Introduction. In light of your responsibility to classify your
item, you may ask BXA to provide you with the correct Export Control
Classification Number (ECCN) to the paragraph (or subparagraph if
appropriate). BXA will advise you whether or not your item is subject
to the EAR and, if applicable, the appropriate ECCN. This type of
request is commonly referred to as a ``Classification Request''. If
requested, for a given end-use, end-user, and/or destination, BXA will
advise you whether a license is required, or likely to be granted, for
a particular transaction. Note that these responses do not bind BXA to
issuing a license in the future. This type of request, along with
requests for guidance regarding other interpretations of the EAR are
commonly referred to as ``Advisory Opinions''.
(b) Classification requests. You must submit your Classification
Request using Form BXA-748P or its electronic equivalent. See the
instructions contained in Supplement No. 1 to part 748 to complete the
Blocks identified for this type of request. Classification Requests
must be sent to BXA at one of the addresses listed in Sec. 748.2(c) of
this part or submitted electronically. Be
[[Page 12813]]
certain that your request is complete and does not omit any essential
information.
(1) Each Classification Request must be limited to 5 items.
Exceptions may be granted by BXA 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 BXA.
(2) You must complete Blocks 1 through 5, 14, 22(b)(c)(d) and (i)
(enter your recommended classification information in these blocks), 24
and 25 on the application when submitting a Classification request. If
you are requesting BXA to classify an item for which precise
specifications are identified in Sec. 748.8 of this part, these
specifications must be addressed in, or attached to, your application.
Consult Sec. 738.2 of the EAR for guidance on classifying items on the
Commerce Control List.
(c) Advisory Opinions. Advisory Opinions must be submitted in
writing to the address listed in Sec. 748.2(c) of the EAR. Both your
letter and envelope must be marked ``Advisory Opinion.''
(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 BXA 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
Sec. 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 BXA to verify the correct classification.
Sec. 748.4 Basic guidance related to applying for a license.
(a) Disclosure and substantiation of facts on license applications.
You, as the applicant, are required to make the complete disclosure of
all parties in interest to the transaction so that BXA may decide on
the license application with the fullest knowledge of all relevant
facts. If the license application is filed for an account other than
that of the applicant, the agent, as applicant must disclose the name
of the agent's principal. Where there is any doubt as to which of
several persons should be named as a party to the license, you must
disclose the names of all such persons and the functions to be
performed by each in Block 24 on your application or an attachment to
your license application.
(b) Applications for the export of items from the United States. A
license application to export items from the United States may be made
only by a person subject to the jurisdiction of the United States who
is in fact the exporter, or by the applicant's duly authorized agent.
This limitation does not apply to applications for the reexport of
items previously exported. An application may be made on behalf of a
person not subject to the jurisdiction of the United States by an
authorized agent in the United States, who then becomes the applicant.
(c) Prohibited from applying for a license. No person convicted of
a violation of any statute specified in section 11(h) of the Export
Administration Act, as amended, at the discretion of the Secretary of
Commerce, may apply for any license for a period up to 10 years from
the date of the conviction. See Sec. 766.25 of the EAR.
(d) Prior action on a shipment. If you have obtained a license
without disclosure of the facts described in this section, the license
will be deemed to have been obtained without disclosure of all facts
material to the granting of the license and the license so obtained
will be deemed void. See part 764 of the EAR for other sanctions that
may result in the event a violation occurs.
(1) Licenses for items subject to detention or seizure. If you
submit a license application for items that you know have been detained
or seized by the Office of Export Enforcement or by the U.S. Customs
Service, you must disclose this fact to BXA when you submit your
license application.
(2) Licenses for items previously exported. You may not submit a
license application to BXA covering a shipment that is already laden
aboard the exporting carrier, exported or reexported. If such export or
reexport should not have been made without first securing a license
authorizing the shipment, you must send a letter of explanation to the
Office of Export Enforcement, U.S. Department of Commerce, 14th and
Pennsylvania Avenue, N.W., H4520, Washington, D.C., 20230. The letter
must state why a license was not obtained and disclose all facts
concerning the shipment that would normally have been disclosed on the
license application. You will be informed of any action and furnished
any instructions by the Office of Export Enforcement.
(e) Multiple shipments. Your license application need not be
limited to a single shipment, but may represent a reasonable estimate
of items to be shipped throughout the validity of the license. Do not
wait until the license you are using expires before submitting a new
application. You may submit a new application prior to the expiration
of your current license in order to ensure uninterrupted shipping.
(f) Second application. You may not submit a second license
application covering the same proposed transaction while the first is
pending action by BXA.
(g) Resubmission. If a license application is returned without
action to you by BXA or your application represents a transaction
previously denied by BXA, and you want to resubmit the license
application, a new license application must be completed in accordance
with the instructions contained in Supplement No. 1 to part 748. Cite
the Application Control Number on your original application in Block 24
on the new license application.
(h) Emergency processing. If you believe an emergency situation
beyond your control necessitates expedited processing of your license
application, you should contact BXA's Exporter Counseling Division of
the Office of Exporter Services. This office may be reached by
telephone on (202) 482-4811 or by facsimile on (202) 482-3617. These
procedures do not apply to emergency handling of Special Comprehensive
License applications.
(1) How to request emergency handling. If your license application
is already pending with BXA, contact the Exporter Counseling Division
directly on either number listed in paragraph (h) of this section. If
you have not yet submitted your license application, include a written
letter with the title ``Emergency Handling Request'' with your license
application. The letter must include:
(i) A justification for the request, supported, where appropriate,
with copies of orders, communications, or other documentation to
substantiate that your request constitutes a valid emergency. You may
be specifically requested to supply other documents not included with
your submission.
[[Page 12814]]
(ii) An acknowledgement by you that any license issued under these
emergency procedures will have a limited validity period as described
in Sec. 750.7(g) of the EAR, and that it generally will not be
extended.
(2) Prompt delivery of emergency handling requests. You are
responsible for prompt delivery of your request and license application
to BXA. You may hand-carry your request and license application or use
the services of an overnight courier to ensure prompt delivery. If you
desire to hand-carry your request and license application, you may hand
deliver it to the Exporter Counseling Division at the address stated in
Sec. 748.2(a) of this part. If you decide to use an overnight courier,
use the address listed in Sec. 748.2(c) of this part. The envelope
containing your license application should be labeled ``Attn: Exporter
Counseling Division, Emergency Handling Request Enclosed''.
(3) Review of emergency handling requests. BXA views an emergency
as an unforeseeable situation over which you have no control. On the
day of receipt, BXA will evaluate your license application and decide
whether emergency handling is warranted. Frequent emergency request
will be given particularly close scrutiny. This procedure is not
designed to become a substitute for timely filing of license
applications.
(4) Action on license applications processed under emergency
procedures. If you have submitted an emergency request, you will be
contacted by the Exporter Counseling Division informing you of whether
or not your request for emergency processing has been granted. If your
license is approved under emergency handling procedures, you will be
notified by BXA of the approval by telephone or in person. You will be
given the license number and verbal authorization to effect shipment
immediately, without waiting for the actual license. Any license
approved under these emergency handling procedures will have a limited
validity period as described in Sec. 750.7(g) of the EAR.
Sec. 748.5 Parties to the transaction on a license application.
(a) Applicant. (1) The ``applicant'' is defined as the person who,
as the principal party in interest in the transaction, has the power
and responsibility for determining and controlling the exporting or
reexporting of the items. BXA is primarily concerned with the identity
of the applicant and the applicant's role in the transaction, and not
the terms of sale.
(2) Ordinarily, a seller who delivers items in the United States to
a foreign buyer, or to the latter's forwarder or other agent, would not
be in a position to assume responsibility for the export and would not
be a proper applicant. This would normally be the situation where sale
is made f.o.b. factory, although such terms of sale may relate only to
price and are not necessarily inconsistent with the assumption by the
seller of full responsibility for effecting the export or reexport. The
seller can still be liable if the seller knows that the importer or its
agent will not obtain the required license.
(3) If the seller intends to leave the responsibility for effecting
an export or reexport in the hands of the foreign importer or the
latter's forwarding or purchasing agent in the United States, the
foreign importer should apply for the license in the foreign importer's
own name if the foreign importer is subject to the jurisdiction of the
United States at the time of export. Otherwise, the importer's
forwarding or purchasing agent or other person subject to the
jurisdiction of the U.S. must appear as applicant and exporter. In this
situation you, as the applicant, must disclose your role as agent and
the name of your principal.
(b) Order party. The order party is that person in the United
States who conducted the direct negotiations or correspondence with the
foreign purchaser or ultimate consignee and who, as a result of these
negotiations, received the order from the foreign purchaser or ultimate
consignee.
(c) Purchaser. The purchaser is that person abroad who has entered
into the transaction with the applicant to purchase an item for
delivery to the ultimate consignee. A bank, freight forwarder,
forwarding agent, or other intermediary is not the purchaser. The
purchaser and ultimate consignee may be the same entity.
(d) Intermediate consignee. The intermediate consignee is the bank,
forwarding agent, or other intermediary (if any) who acts in a foreign
country as an agent for the exporter or reexporter, the purchaser, or
the ultimate consignee, for the purpose of effecting delivery of the
export or reexport to the ultimate consignee.
(e) Ultimate consignee. The ultimate consignee is the person
located abroad who is the true party in interest in actually receiving
the export for the designated end-use. A bank, freight forwarder,
forwarding agent, or other party, when acting as an intermediary, is
not acceptable as the ultimate consignee.
Sec. 748.6 General instructions for license applications.
(a) Form and instructions. An application for license, whether to
export or reexport, must be submitted on Form BXA-748P, Multipurpose
Application (revised June 15, 1996 or later), and Form BXA-748P-A, Item
Appendix, and Form BXA-748P-B, End-User Appendix. Facsimiles or copies
of these forms are not acceptable. Instructions for preparing Form BXA-
748P are contained in Supplement No. 1 to this part 748. See
Sec. 748.7(a) of this part for instructions on submitting license
applications electronically.
(b) Application Control Number. Each application form includes a
preprinted Application Control Number. The Application Control Number,
consisting of a letter followed by six digits, is for use by BXA when
processing applications, and by applicants when communicating with BXA
concerning pending applications. This number is used for tracking
purposes within the U.S. Government. The Application Control Number is
not a license number.
(c) Approval or denial in entirety. License applications may be
approved in whole or in part, denied in whole or in part, or returned
without action. However, you may specifically request that your license
application be considered as a whole and either approved or denied in
its entirety.
(d) Combining items on license applications. Any items may be
combined on a single application, however, if the items differ
dramatically (e.g., computers and shotguns) the number of BXA offices
to which a license application may be referred for review may increase
significantly. Accordingly, it is recommended that you limit items on
each license application to those that are similar and/or related.
(e) Assembly and additional information. All documents or
correspondence accompanying your license application should bear the
Application Control Number, and be stapled together. Where necessary,
BXA may require you to submit additional information beyond that stated
in the EAR confirming or amplifying information contained in your
license application.
(f) Changes in facts. Answers to all items on the license
application will be deemed to be continuing representations of the
existing facts or circumstances. Any material or substantive change in
the terms of the order, or in the facts relating to the transaction,
must be promptly reported to BXA, whether a license has been granted or
the license application is still
[[Page 12815]]
under consideration. If a license has been granted and such changes are
not excepted in Sec. 750.7(c) of the EAR, they must be reported
immediately to BXA, even though shipments against the license may be
partially or wholly completed, during the validity period of the
license.
(g) Request for extended license validity period. An extended
validity period will generally be granted if your transaction is
related to a multi-year project, when production lead time will not
permit export or reexport during the normal validity period or for
other similar circumstances. A continuing requirement to supply spare
or replacement parts will not normally justify an extended validity
period. To request an extended validity period, include justification
for your request in Block 24 on the application.
Sec. 748.7 Applying electronically for a license or Classification
request.
(a) Authorization. You may apply electronically once you have been
authorized to do so by BXA. An authorization to submit applications
electronically may be limited or withdrawn by BXA at any time. There
are no prerequisites for obtaining permission to submit electronically
or limitations in terms of country eligibility. However, BXA may direct
for any reason that any electronic application be resubmitted in
writing, in whole or in part
(1) Requesting approval to submit applications electronically. To
submit applications electronically, your company must submit a written
request to BXA at one of the addresses identified in Sec. 748.2(c) of
this part. Both the envelope and letter must be marked ``Attn:
Electronic Submission Request''. Your letter must contain your
company's name, and the address, telephone number, and name of the
principal contact person in your company. Before approving your
request, BXA will provide you with language for a number of required
certifications. Once you have completed the necessary certifications,
you may be approved by BXA to submit applications electronically.
(2) Assignment and use of company and personal identification
numbers. (i) Each company granted permission to submit applications
electronically will be assigned a company identification number. Each
person approved by BXA to submit applications electronically for the
company will be assigned a personal identification number (``PIN'')
telephonically by BXA. A PIN will be assigned to you only if your
company has certified to BXA that you are authorized to act for it in
making electronic submissions under the EAR.
(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 BXA 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 BXA at (202) 482-0436. You must confirm this
notification in writing within two business days to BXA at the address
provided in Sec. 748.2(c) of this part.
(B) Your company is responsible for immediately notifying BXA
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) Electronic submission of applications. (1) All applications.
Upon submission of the required certifications and approval of the
company's request to use electronic submission, BXA will provide
instructions both on the method to transmit applications electronically
and the process for submitting required supporting documents and
technical specifications. These instructions may be modified by BXA
from time to time.
(2) License Applications. The electronic submission of an
application for license will constitute an export control document.
Such submissions must provide the same information as written
applications and are subject to the recordkeeping provisions of part
762 of the EAR. The applicant company and PIN holder submitting the
application will be deemed to make all representations and
certifications as if the submission were made in writing by the company
and signed by the submitting PIN holder. Electronic submission of a
license application will be considered complete upon the transmittal of
the application to BXA or to an entity under contract to receive such
applications for BXA.
(c) Maintenance of a log. Your company must maintain a log, either
manually or electronically, specifying the date and time of each
electronic submission, the ECCNs of items on each electronic
submission, and the name of the employee or agent submitting the
license application. This log may not be altered. Written corrections
must be made in a manner that does not erase or cover original entries.
If the log is maintained electronically, corrections may only be made
as notations.
(d) Updating. An applicant company must promptly notify BXA of any
change in its name or address. If your company wishes to have an
individual added as a PIN holder, your company must advise BXA and
follow the instructions provided by BXA. Your company should conduct
periodic reviews to ensure that PINs are held only by individuals whose
current responsibilities make it necessary and appropriate that they
act for the company in this capacity.
Sec. 748.8 Unique license application requirements.
In addition to the instructions contained in Supplement No. 1 to
this part 748, you must also ensure that the additional requirements
for certain items or types of transactions described in this section
are addressed in your license application. See Supplement No. 2 to this
part 748 if your application involves:
(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.
[[Page 12816]]
(m) Robots.
(n) Short Supply controlled items.
(o) Technology.
(p) Temporary exports or reexports.
Sec. 748.9 Support documents for license applications.
(a) Exemptions. If you plan to submit a license application
involving one of the following situations, no support documentation is
required. Simply submit the license application.
(1) All exports and reexports involving ultimate consignees located
in any of the following destinations:
Bahamas
Barbados
Belize
Bermuda
Bolivia
Brazil
Canada
Chile
Colombia
Costa Rica
Dominican Republic
Ecuador
El Salvador
French West Indies
French Guiana
Greenland
Guatemala
Guyana
Haiti
Honduras
Jamaica
Leeward and Windward Islands
Mexico
Miquelon and St. Pierre Islands
Netherlands Antilles
Nicaragua
Panama
Paraguay
Peru
Surinam
Trinidad and Tobago
Uruguay
Venezuela
(2) The ultimate consignee or purchaser is a foreign government(s)
or foreign government agency(ies). 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. However, support documents are required from
governments of the People's Republic of China, India, Bulgaria, Czech
Republic, Hungary, Poland, Romania, and Slovakia.
(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 temporary exhibit, demonstration, or testing purposes.
(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.
(b) Support document requirements. License applications not exempt
under paragraph (a) of this section generally must be supported by
documents designed to elicit information concerning the disposition of
the items intended for export or reexport. These support documents must
be either submitted at the time the license application is filed or
retained in the applicant's files in accordance with the recordkeeping
provisions of part 762 of the EAR. The type of support documentation
required is dependent on the item involved and the country of ultimate
destination. To determine which type of support documentation is
required, answer the following questions:
(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.
(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.)
Argentina
Australia
Austria
Belgium
Bulgaria
China (PRC)
Czech Republic
Denmark
Finland
France
Germany
Greece
Hong Kong
Hungary
India
Ireland, Republic of
Italy
Japan
Korea, Republic of
Liechtenstein
Luxembourg
Netherlands
New Zealand
Norway
Pakistan
Poland
Portugal
Romania
Singapore
Slovakia
Spain
Sweden
Switzerland
Taiwan
Turkey
United Kingdom
(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:
(1) The item to be exported is described in an Advisory Note for
Country Group D:1 (See Supplement No. 1 to part 740 of the EAR) on the
CCL; or
(2) 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
(3) The End-User is not a Chinese entity.
(ii) If no, your transaction may require a Statement by Ultimate
Consignee or Purchaser.
(c) License applications requiring support documents. License
applications requiring support by either a Statement by the Ultimate
Consignee and Purchaser or an Import or End-User Certificate must
indicate the type of support document obtained in Block 6 or 7 on your
application with an ``X'' in the appropriate box. If the support
document is an Import or End User Certificate, you must also identify
the originating country and number of the Certificate in Block 13 on
your application. If a license application is submitted without either
the correct Block or Box marked on the application or the required
support document, the license application will be immediately returned
without action unless the satisfactory reasons for failing to obtain
the document are supplied in Block 24 or in an attachment to your
license application.
(1) License applications supported by an Import or End User
Certificate. If submission of the original certificate is not required
by Sec. 748.10(g) of this part, you may submit your license application
upon receipt of a facsimile
[[Page 12817]]
or other legible copy of the Import or End User Certificate provided
that no shipment is made against any license issued based upon the
Import or End User Certificate prior to receipt and retention of the
original statement by the applicant. If Sec. 748.10(g) of this part
requires submission of the original certificate with your license
application, you must submit the original. Copies will not be accepted.
(2) License applications supported by Ultimate Consignee and
Purchaser statements. These types of license applications may be
submitted upon receipt of a facsimile or other legible copy of the
original statement provided that the original manually-signed statement
is retained by the ultimate consignee, and you retain a copy of the
statement.
(d) Exceptions to obtaining the required support document. BXA will
consider the granting of an exception to the requirement for supporting
document where the requirements cannot be met due to circumstances
beyond your control. An exception will not be granted contrary to the
objectives of the U.S. export control laws and regulations. Refer to
Sec. 748.12(d) of this part for specific instructions on procedures for
requesting an exception.
(e) Validity period. (1) When an Import or End-User Certificate or
a Statement by Ultimate Consignee and Purchaser is required to support
one or more license applications, you must submit the first license
application within the validity period shown on the Certificate, or 6
months from the date the Certificate was issued or Statement signed,
whichever is shorter.
(2) All subsequent license applications supported by the same
Import or End-Use Certificate must be submitted to BXA within one year
from the date that the first license application supported by the same
Import or End-Use Certificate was submitted to BXA.
(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) English translation requirements. All abbreviations, coded
terms, or other expressions on support documents having special
significance in the trade or to the parties to the transaction must be
explained on an attachment to the document. Documents in a language
other than English must be accompanied by an attachment giving an
accurate English translation, either made by a translating service or
certified by you to be correct. Explanations or translations should be
provided on a separate piece of paper, and not entered on the support
documents themselves.
(g) Responsibility for full disclosure. (1) Information contained
in a support document cannot be construed as extending or expanding or
otherwise modifying the specific information supplied in a license
application or license issued by BXA. The license application covering
the transaction discloses all facts pertaining to the transaction. The
authorizations contained in the resulting license are not extended by
information contained in an Import Certificate, End-User Certificate or
Statement by Ultimate Consignee and Purchaser regarding reexport from
the country of destination or any other facts relative to the
transaction that are not reported on the license application.
(2) Misrepresentations, either through failure to disclose facts,
concealing a material fact, or furnishing false information, will
subject responsible parties to administrative action by BXA.
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 Purchaser. You are responsible
for promptly notifying BXA of any change in the facts contained in the
support document that comes to your attention.
(h) Effect on license application review. BXA reserves the right in
all respects to determine to what extent any license will be issued
covering items for which an Import or End-User Certificate has been
issued by a foreign government. BXA will not seek or undertake to give
consideration to recommendations from the foreign government as to the
action to be taken on a license application. A supporting document
issued by a foreign government will be only one of the factors upon
which BXA will base its licensing action, since end-uses and other
considerations are important factors in the decision making process.
(i) Request for return of support documents submitted to BXA. If an
applicant is requested by a foreign importer to return an unused or
partially used Import or End-User Certificate submitted to BXA in
support of a license application, the procedure provided in this
paragraph (i) should be followed:
(1) The applicant must send a letter request for return of an
Import or End-User Certificate to the address stated in Sec. 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) Recordkeeping requirements for returning certificates retained
by the applicant. (1) Though the recordkeeping provisions of the EAR
require that all original support documents be retained for a period of
five years, an unused or partially used certificate may be returned at
the request of a foreign importer provided that you submit the original
certificate, accompanied by a letter of explanation, a copy of each
license covered by the certificate, and a list of all shipments made
against each license to BXA at the address listed in Sec. 748.2(c). BXA
will notify you in writing whether your request has been granted. The
following information must be contained in your letter of explanation:
(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.
[[Page 12818]]
(2) If your request is granted, BXA 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 BXA. The copies must be retained on file along with
your correspondence in accordance with the recordkeeping provisions in
part 762 of the EAR.
Sec. 748.10 Import and End-User Certificates.
(a) Scope. There are a variety of Import and End-User Certificates
currently in use by various governments. The control exercised by the
government issuing the Import or End-User Certificate is in addition to
the conditions and restrictions placed on the transaction by BXA. The
laws and regulations of the United States are in no way modified,
changed, or superseded by the issuance of an Import or End-User
Certificate. This section describes exceptions and relationships true
for both Import and End-User Certificates, and applies only to
transactions involving national security controlled items destined for
one of the countries identified in Sec. 748.9(b)(2) of this part.
(b) Import or End-User Certificate. An Import or End-User
Certificate must be obtained, unless your transaction meets one of the
exemptions stated in Sec. 748.9(a) of this part, if:
(1) Any items on your license application are controlled for
national security reasons (NS),
(2) The ultimate destination is a country listed in
Sec. 748.9(b)(2) of this part; and
(3) Your license application involves the export of items
classified in a single entry on the CCL, the total value of which
exceeds $5,000.
(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 BXA to obtain an Import
Certificate for a transaction valued under $5,000.
(c) How to obtain an Import or End-User Certificate. (1) Applicants
must request that the importer (e.g., ultimate consignee or purchaser)
obtain the Import or End-User Certificate, and that it be issued
covering only those items that are controlled for national security
reasons. Importers should not be requested to obtain an Import or End-
User Certificate for items that are controlled for reasons other than
national security. Upon receipt, the importer must transmit the
original document to the applicant.
(2) The applicant's name must appear on the Import or End-User
Certificate submitted to BXA 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.
Note to paragraph (c) of this section: 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) Where to obtain Import and End-User Certificates. See
Supplement No. 4 to this part for a list of the authorities
administering the Import Certificate/Delivery Verification and End-User
Certificate Systems in other countries.
(e) Triangular symbol on International Import Certificates.
(1) In accordance with international practice, the issuing
government may stamp a triangular symbol on the International Import
Certificate (IIC). This symbol is notification that the importer does
not intend to import or retain the items in the country issuing the
certificate, but that, in any case, the items will not be delivered to
any destination except in accordance with the export regulations of the
issuing country'.
(2) If you receive an IIC bearing a triangular symbol, you must
identify all parties to the transaction on the license application,
including those located outside the country issuing the IIC. If the
importer declines to provide you with this information, you may advise
the importer to provide the information directly to BXA, through a U.S.
Foreign Commercial Service office, or in a sealed envelope to you
marked ``To be opened by BXA only''.
(f) Multiple license applications supported by one certificate. An
Import or End-User Certificate may cover more than one purchase order
and more than one item. Where the certificate includes items for which
more than one license application will be submitted, you must include
in Block 24 on your application, or in an attachment to each license
application submitted against the certificate, the following
certification:
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 BXA based on the same
Certificate, do not total more than the total quantities shown on
the above cited Certificate.
(g) Submission of Import and End-User Certificates. If a PRC End-
User Certificate is required for your proposed transaction, you must
submit the original certificate with your license application. Copies
will not be accepted. All other certificates must be retained on file
by the applicant in accordance with the recordkeeping provisions of
part 762 of the EAR, and not submitted with the license application.
(h) Alterations. After an Import or End-User Certificate is issued
by a foreign government, no corrections, additions, or alterations may
be made on the Certificate by any person. If you desire to explain any
information contained on the Certificate, you may attach a signed
statement to the Certificate.
(i) Request for Delivery Verification. BXA will, on a selective
basis, require Delivery Verification documents for shipments supported
by Import Certificates. You will be notified if Delivery Verification
is required at the time of issuance of the license. Please refer to
Sec. 748.13 of this part for detailed information on these procedures.
(j) Retention procedures. You must retain on file the original copy
of any certificate issued in support of a license application submitted
to BXA, unless the original is submitted with the license application.
All recordkeeping provisions contained in part 762 of the EAR apply to
this requirement, except that reproductions may not be substituted for
the officially authenticated original in this instance.
[[Page 12819]]
Sec. 748.11 Statement by Ultimate Consignee and Purchaser.
(a) Exceptions to completing a Statement by Ultimate Consignee and
Purchaser. A Statement by the Ultimate Consignee and/or Purchaser
involved in a transaction must be completed unless:
(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
Sec. 748.9(a) of this part.
(b) Submission of the Statement by Ultimate Consignee and
Purchaser. A copy of the statement must be submitted with your license
application if the country of ultimate destination is listed in either
Country Group D:2, D:3, or D:4 (See Supplement No. 1 to part 740 of the
EAR). The copy submitted by the applicant must be of sufficient quality
to ensure all assertions made on the statement are legible and that the
signatures are sufficiently legible to permit identification of the
signature as that of the signer. The applicant must receive the
manually-signed original within 60 days from the date the original is
signed by the ultimate consignee. The applicant must, upon receipt,
retain the manually-signed original, and both the ultimate consignee
and purchaser should retain a copy of the statement in accordance with
the recordkeeping provisions contained in part 762 of the EAR.
(c) Form or letter. The ultimate consignee and purchaser must
complete either a statement on company letterhead in accordance with
paragraph (e) of this section or Form BXA-711, Statement by Ultimate
Consignee and Purchaser. If the consignee and purchaser elect to
complete the statement on letterhead and both the ultimate consignee
and purchaser are the same entity, only one statement is necessary. If
the ultimate consignee and purchaser are separate entities, separate
statements must be prepared and signed. If the ultimate consignee and
purchaser elects to complete Form BXA-711, only one Form BXA-711
(containing the signatures of the ultimate consignee and purchaser)
need be completed. Whether your ultimate consignee and purchaser sign a
written statement or complete Form BXA-711, the following constraints
apply:
(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) Instructions for completing Form BXA-711. Instructions on
completing Form BXA-711 are contained in Supplement No. 3 to this part.
The ultimate consignee and purchaser may sign a legible copy of Form
BXA-711. It is not necessary to require your ultimate consignee and
purchaser sign an original Form BXA-711, provided all information
contained on the copy is legible.
(e) Instructions for completing the statement on letterhead.
Information in response to each of the following criteria must be
included in the statement. If any information is unknown, that fact
should be disclosed in the statement. Preprinted information supplied
on the statement, including the name, address, or nature of business of
the ultimate consignee or purchaser appearing on the letterhead or
order form is acceptable but will not constitute evidence of either the
signer's identity, the country of ultimate destination, or end-use of
the items described in the license application.
(1) Paragraph 1. One of the following certifications must be
included depending on whether the statement is proffered in support of
a single license application or multiple license applications:
(i) Single. This statement is to be considered part of a license
application submitted by [name and address of applicant].
(ii) Multiple. This statement is to be considered a part of every
license application submitted by [name and address of applicant] until
one year from the date this statement is signed.
(2) Paragraph 2. One or more of the following certifications must
be included. Note that if any of the facts related to the following
statements are unknown, this must be clearly stated.
(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) Paragraph 3. The following two certifications must be included:
(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) Paragraph 4. The final paragraph must include all of the
following certifications:
(i) We certify that all of the facts contained in this statement
are true and
[[Page 12820]]
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
Export Administration, we will not reexport, resell, or otherwise
dispose of any items approved on a license supported by this statement:
(1) To any country not approved for export as brought to our
attention by the U.S. exporter; or
(2) 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 BXA 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.
Sec. 748.12 Special provisions for support documents.
(a) Grace periods. Whenever the requirement for an Import or End-
User Certificate or Statement by Ultimate Consignee or Purchaser is
imposed or extended by a change in the regulations, the license
application need not conform to the new support documentation
requirements for a period of 45 days after the effective date of the
regulatory change published in the Federal Register.
(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 Sec. 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 Sec. 748.10 of this part
after expiration of the stated grace period.
(b) Reexports. If a support document would be required for an
export, the same document would be required for reexport to Country
Group D:1 and E:2 (See Supplement No. 1 to part 740 of the EAR).
(c) Granting of exceptions to the support documentation
requirement. An exception to obtaining the required support
documentation will be considered by BXA, however, an exception will not
be granted contrary to the objectives of the U.S. export control
program. A request for exception may involve either a single
transaction, or where the reason necessitating the request is
continuing in nature, multiple transactions. If satisfied by the
evidence presented, BXA may waive the support document requirement and
accept the license application for processing. Favorable consideration
of a request for exception generally will be given in instances where
the support document requirement:
(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) Procedures for requesting an exception. (1) Requests for
exception must be submitted with the license application to which the
request relates. Where the request relates to more than one license
application it should be submitted with the first license application
and referred to in Block 24 on any subsequent license application. The
request for exception must be submitted in writing on the applicant's
letterhead.
(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 Sec. 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 BXA
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) Action by BXA. (i) Single transaction request. Where a single
transaction is involved, BXA will act on the request for exception at
the same time as the license application with which the request is
submitted. In those instances where the related license application is
approved, the issuance of the license will serve as an automatic notice
to the applicant that the exception was approved. If any restrictions
are placed on granting of the exception, these will appear on the
approval. If the request for exception is not approved, BXA will advise
you by letter.
[[Page 12821]]
(ii) Multiple transactions request. Where multiple transactions are
involved, BXA will advise you by letter of the action taken on the
exception request. The letter will contain any conditions or
restrictions that BXA finds necessary to impose (including an exception
termination date if appropriate). In addition, a written acceptance of
these conditions or restrictions may be required from the parties to
the transaction.
(e) Availability of original. The original certificate or statement
must be kept on file, and made available for inspection in accordance
with the provisions of part 762 of the EAR. To ensure compliance with
this recordkeeping requirement, BXA will require applicants, on a
random basis, to submit specific original certificates and statements
that have been retained on file. Applicants will be notified in writing
of any such request.
Sec. 748.13 Delivery Verification (DV).
(a) Scope. (1) BXA may request applicants to obtain verifications
of delivery on a selective basis. A Delivery Verification Certificate
(DV) is a document issued by the government of the country of ultimate
destination after the export has taken place and the items have either
entered the export jurisdiction of the recipient country or are
otherwise accounted for by the importer to the issuing government.
Governments that issue DVs are listed in Supplement No. 4 to this part.
(2) If BXA 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) Exception to obtaining Delivery Verification. The DV
requirement for a particular transaction is automatically canceled if,
subsequent to the issuance of a license, the item is no longer
controlled for national security reasons. In this instance, the
licensee must send a letter to BXA at the address listed in
Sec. 748.2(c) of this part, stating that the items on the license are
no longer controlled for national security reasons, and accordingly,
the request for DV will not be fulfilled by the licensee.
(c) Procedure for obtaining Delivery Verification. When notified
that a DV is required by BXA, the licensee must transmit to the
importer a written request for a DV at the time of making each shipment
under the license (whenever possible, this request should be submitted
together with the related bill of lading or air waybill). The request
must include the number of the Import or End-User Certificate for the
transaction referred to on the license, and notify the importer that
this same Import or End-User Certificate number should be shown on the
DV.
(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 BXA must be able to
relate the description provided in the DV to the approved license. In
order to ensure the same terminology is used, the licensee should
provide the importer with the description as it appears on the license.
(2) The original copy of the DV must be sent to BXA 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 BXA at the address listed in
Sec. 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) Inability to obtain Delivery Verification Certificates. If a
licensee is unable to obtain the required DV (within the time frame
stated above, or at all) from the importer, the licensee must promptly
notify BXA and, upon request, make available all information and
records, including correspondence, regarding the attempt to obtain the
DV.
Supplement No. 1 to Part 748 BXA-748P, BXA-748P-A; Item Appendix, and
BXA-748P-B; End-User Appendix; Multipurpose Application Instructions
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 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., 011-358-0-123456F).
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. Export. If the items are located
within the United States, and you wish to export those items, mark
the Box labeled ``Export'' with an (X). Reexport. If the items are
located outside the United States, mark the Box labeled ``Reexport''
with an (X). Classification Request. If you are requesting BXA to
classify your item against the Commerce Control List (CCL), mark the
Box labeled ``Classification Request'' with an (X). Special
Comprehensive License. If you are submitting a Special Comprehensive
License application in accordance with procedures described in part
752 of the EAR, mark the Box labeled ``Special Comprehensive
License'' with an (X).
Block 6: Attachments 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, brochures, technical specifications, etc.
with your application.
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 box 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, provide the
Application Control Number for that application.
[[Page 12822]]
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 change to the license as originally approved
not excepted in Sec. 750.7(c) of the EAR, enter the license number
here, and 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. Refer to Sec. 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 Employer 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 BXA 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 Sec. 748.5(c) of this part for a definition of
``purchaser''. If the purchaser is also the ultimate consignee,
enter the words ``same as Block 18''.
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 Sec. 748.5(d) of
this part for a definition of ``intermediate consignee''. If this
party is identical to that listed in Block 16, you may simply type
the words ``Same as Block 16''. If your proposed transaction does
not involve use of an intermediate consignee, enter ``None''. If
your proposed transaction involves use of more than one intermediate
consignee, provide the information in Block 24 for each additional
Intermediate Consignee.
Block 18: Ultimate Consignee. 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 material for the end-use designated in
Block 21.
Refer to Sec. 748.5(e) of this part for the 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-use and end-user is clearly identified in Block 21 or in
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. 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 18 is not the actual end-user. If
there will be more than one end-user, enter the word ``Various'' in
this Block, and use Form BXA-748P-B to identify each of the end-
users. Enter each end user'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.
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. 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. Provide a complete street
address, P.O. Boxes are not acceptable.
Block 21: Specific End-Use. 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 BXA-748P-A or B. Be specific, such
vague descriptions 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). Enter ``N/A'' in these blocks. If you wish to export,
reexport or have BXA classify more than one item, use Form BXA-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 BXA to classify your item, provide a recommended
classification for the item in this Block.
(b) CTP. You must complete this Block if your application
involves a digital computer or equipment containing a digital
computer as described in Supplement No. 2 to this part.
Instructions on calculating the CTP are contained in a Technical
Note at the end of Category 4 in the CCL. If your application does
not involve these items, insert ``N/A'' in this Block.
(c) Model Number. Enter the correct model number for each item.
(d) CCATS Number. If you have received a classification for this
item from BXA, provide the CCATS number shown on the classification
issued by BXA. Otherwise, enter ``N/A'' in this Block.
(e) Quantity. Identify the quantity to be exported or
reexported, in terms of the ``Units'' identified for the ECCN
entered in Block 21(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
BXA. If an item is licensed in terms of ``$ value'', the unit of
quantity commonly used in trade must also be shown on the license
application. If the unit for your particular item is shown as ``N/
A'' in the appropriate entry on the CCL, enter ``N/A'' in this
Block.
(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
BXA classify, if different from the applicant.
(j) Technical Description. Provide a description of the item(s)
you wish to export, reexport, or have BXA 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 in 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
[[Page 12823]]
Application Control Number for the original application.
If you are asking BXA 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 do not identify a recommended
classification in Block 22(a), you must state the reason you cannot
determine the appropriate classification, identifying any
ambiguities or deficiencies in the regulations that precluded you
from determining the correct classification.
If additional space is necessary, use Block 24 on Form BXA-748P-
A or B.
Block 25: You, as the applicant or duly authorized agent of the
applicant, must manually sign the application. 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.
Note: Rubber-stamped or electronic signatures are not
acceptable. Type both your name and title in the spaces provided.
Supplement No. 2 to Part 748--Unique License Application
Requirements
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
BXA-748P, unless otherwise noted.
(a) Chemicals, medicinals, and pharmaceuticals. If you are
submitting a license application for the export or reexport of
chemicals, medicinals, and/or pharmaceuticals, the following
information must be provided in Block 22.
(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) Communications intercepting devices. If you are required to
submit a license application under Sec. 742.13 of this part, you
must enter the words ``Communications Intercepting Device(s)'' in
Block 9. The item you are requesting to export or reexport must be
specified by name in Block 22(j).
(c) Digital computers, telecommunications, and related
equipment. If your license application involves items controlled by
both Category 4 and Category 5, your license application must be
submitted according to the principal function of the equipment.
License applications involving computers controlled by Category 4
must identify a Composite Theoretical Performance (CTP) in Block
22(b). If the principal function is telecommunications, a CTP 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, while cryptographic, cryptoanalytic, certifiable multi-
level security or certifiable user isolation functions, or systems
that limit electromagnetic compatibility (EMC) will be evaluated
against the information security performance characteristics of
Category 5.
(1) Requirements for license applications involving digital
computers. If you are submitting a license application to export or
reexport ``digital computers'' or equipment containing digital
computers to destinations in Country Group D:1 (See Supplement No. 1
to part 740 of the EAR), or to upgrade existing ``digital computer''
installations in those countries, you must include in addition to
the CTP in Block 22(b) the following information:
(i) A configuration diagram of the entire system must be
submitted if the equipment exceeds the limits of the Advisory Notes
that indicate a likelihood of approval for Country Group D:1 for the
appropriate ECCN in the Commerce Control List (CCL); and
(ii) Technical specifications and product brochures to
corroborate the data supplied in your license application.
(2) Additional requirements. License applications to export or
reexport computers or related equipment that are described in
Advisory Note 4 to Category 4, or that exceed any of the limits
specified in Advisory Notes 3 or 4 to Category 4, must include:
(i) A signed statement by a responsible representative of the
end-user or the importing agency describing the end-use and
certifying that the ``digital'' computers or related equipment:
(A) Will be used only for civil applications; and
(B) Will not be reexported or otherwise disposed of without
prior written authorization from BXA;
(ii) A full description of the equipment and its intended
application and workload; and
(iii) A complete identification of all end-users and their
activities.
(d) Gift parcels; consolidated in a single shipment. If you are
submitting a license application to export multiple gift parcels for
delivery to individuals residing in a foreign country, you must
include the following information in your license application. Note:
Each gift parcel must meet the terms and conditions described in
License Exception GFT (See Sec. 740.16 of the EAR).
(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) Intransit through the United States. If you are submitting a
license application for items moving intransit through the United
States that do not qualify for License Exception TUS (See Sec. 740.9
of the EAR), you must provide the following information with your
license application:
(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 Sec. 748.9 of this
part for the country of ultimate destination.
(f) Intransit outside of the United States. If you are
submitting a license application based on General Prohibition No. 8
stated in Sec. 734.2(b)(8) of the EAR and identification of the
intermediate consignee in the country of unlading or transit is
unknown at the time the license application is submitted, the
country of unlading or transit must be shown in Block 17.
(g) Nuclear Nonproliferation items and end-uses.--(1) Statement
requirement. If a license is required to export or reexport items
under Sec. 744.2 of the EAR, prior to submitting a license
application you must obtain a signed written statement from the
foreign importer certifying the following:
(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 Sec. 744.2(a) of the EAR; and
(ii) Written authorization will be obtained from the BXA 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) License application requirements. Along with the required
certification, you must include the following information in your
license application:
(i) In Block 6, 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 Sec. 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 Sec. 744.2 of the EAR, you must fully explain the basis
for your knowledge that the items are intended for the purpose(s)
described Sec. 744.2 of the EAR. Indicate, if possible, the specific
end-use(s) the items will have in designing, developing,
[[Page 12824]]
fabricating, or testing nuclear weapons or nuclear explosive devices
or in designing, constructing, fabricating, or operating the
facilities described in Sec. 744.2(a)(3) of the EAR.
(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. (1) If you are
submitting a license application to export, reexport, or request BXA
to classify numerical control devices, motion control boards,
numerically controlled machine tools, dimensional inspection
machines, and specially designed software you must include the
following information in your license application:
(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 as described in
ECCN 2B001.a.2.a and a.2.b and ECCN 2B001.b.2 and b.3;
(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 if required as described in ECCN
2B001.c.1.b.6.
(i) Parts, components, and materials incorporated abroad into
foreign-made products. BXA will consider license applications to
export or reexport to multiple consignees or multiple countries when
an application is required for foreign produced direct product
containing parts and components subject to the EAR in Sec. 732.4(b)
of the EAR and to General Prohibition Two stated in Sec. 734.2(b)(2)
of the EAR. Such requests will not be approved for countries listed
in Country Group E:2 (See Supplement No. 1 to part 740 of the EAR),
and may be approved only in limited circumstances for countries
listed in Country Group D:1.
(1) License applications for the export of parts and components.
If you are submitting a license application for the export of parts,
components, or materials to be incorporated abroad into products
that will then be sent to designated third countries, you must enter
in Block 21, a description of end-use including a general
description of the commodities to be manufactured, their typical
end-use, and the countries where those commodities will be marketed.
The countries may be listed specifically or may be identified by
Country Groups, geographic areas, etc.
(2) License applications for the reexport of incorporated parts
and components. If you are submitting a license application for the
reexport of parts, components, or materials incorporated abroad into
products that will be sent to designated third countries you must
include the following information in your license application:
(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 its
value in U.S. dollars. If more than one foreign-made product is
identified on the license application, describe the U.S. content and
specify the U.S. content value for each foreign-made product. Also,
provide sufficient supporting information to explain the basis for
the stated values. To the extent possible, explain how much of the
value of the foreign-made product represents foreign origin parts,
components, or materials, as opposed to labor, overhead, etc. When
the U.S. content varies and cannot be specified in advance, provide
a range of percentage and value that would indicate the minimum and
maximum U.S. content;
(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 Sec. 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) Ship stores, plane stores, supplies, and equipment.--(1)
Vessels under construction. If you are submitting a license
application for the export or reexport of items, including ship
stores, supplies, and equipment, to a vessel under construction you
must include the following information in your license application:
(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) Aircraft under construction. If you are submitting a license
application for the export or reexport of items, including plane
stores, supplies, and equipment, to an aircraft under construction
you must include the
[[Page 12825]]
following information in your license application:
(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) Operating vessels and aircraft. If you are submitting a
license application for the export or reexport of items, including
ship or plane stores, supplies, and equipment to an operating vessel
or aircraft, whether in operation or being repaired, you must
include the following information in your license application:
(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) Regional stability controlled items. If you are submitting a
license application for the export or reexport of items controlled
for regional stability reasons and subject to licensing under RS
Column 1 on the Country Chart, your license application must be
accompanied by full technical specifications.
(l) Reexports. If you know that an item that requires a license
to be exported from the United States to a certain foreign
destination will be reexported to a third destination also requiring
approval, such a request must be included on the license
application. The license application must specify the country to
which the reexport will be made in Block 24. If the export does not
require a license but the reexport does, you may apply for a license
for the reexport, or you may export without a license and notify the
consignee of the requirement to seek a license to reexport.
(m) Robots. If you are submitting a license application for the
export or reexport of items controlled by ECCNs 2B007 or 2D001
(including robots, robot controllers, end-effectors, or related
software) the following information must be provided in Block 24:
(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) Short Supply controlled items. If you are submitting a
license application for the export of items controlled for short
supply reasons, you must consult part 754 of the EAR for
instructions on preparing your license application.
(o) Technology--(1) License application instructions. If you are
submitting a license application for the export or reexport of
technology you must check the box labeled ``Letter of Explanation''
in Block 6, enter the word ``Technology'' in Block 9, leave Blocks
22(e) and (i) blank, and include a general statement that specifies
the technology (e.g., blueprints, manuals, etc.) in Block 22(j).
(2) Letter of explanation. Each license application to export or
reexport technology must be supported by a comprehensive letter of
explanation. This letter must describe all the facts for a complete
disclosure of the transaction including, if applicable, the
following information:
(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) Special provisions.
(i) Technology controlled for national security reasons. If you
are submitting a license application to export technology controlled
for national security reasons to a country not listed in Country
Group D:1 or E:2 (see Supplement No. 1 to part 740 of the EAR), you
must obtain a written letter from the ultimate consignee assuring
that, unless prior authorization is obtained from BXA, the consignee
will not knowingly reexport the technology to any destination, or
export the direct product of the technology to a country listed in
Country Group D:1 or E:2 (See Supplement No. 1 to part 740 of the
EAR). If you are unable to obtain this letter of assurance from your
consignee, you must state in your license application why the
assurances could not be obtained.
(ii) Maritime nuclear propulsion plants and related items. If
you are submitting a license application to export or reexport
technology relating to maritime nuclear propulsion plants and
related items including maritime (civil) nuclear propulsion plants,
their land prototypes, and special facilities for their
construction, support, or maintenance, including any machinery,
device, component, or equipment specifically developed or designed
for use in such plants or facilities you must include the following
information in your license application:
(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
BXA, 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 Export
Administration all reports and information it may require concerning
specific transmittals or disclosures of technology under any license
granted as a result of this license application.
(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) Temporary exports or reexports. If you are submitting a
license application for the temporary export or reexport of an item
(not eligible for License Exception TMP (See Sec. 740.8 of the EAR))
you must include the following certification in Block 24:
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
[[Page 12826]]
writing by the Bureau of Export Administration.
Supplement No. 3 to Part 748--BXA-711, Statement by Ultimate Consignee
and Purchaser Instructions
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 Sec. 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
Sec. 748.5(c) of this part.)
Block 8: Certification for U.S. 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.
Supplement No. 4 To Part 748--Authorities Administering Import
Certificate/Delivery Verification (IC/DV) and End Use Certificate
Systems in Foreign Countries
----------------------------------------------------------------------------------------------------------------
Country IC/DV Authorities System administered
----------------------------------------------------------------------------------------------------------------
Argentina........................... Secretaria Ejecutiva de la Comision Nacional de IC/DV.
Control de Exportaciones Sensitivas y Material
Belico Balcarce 362--ler. piso Capital
Federal--CP 1064 Buenos Aires Tel. 334-0738,
Fax 331-1618.
Australia........................... Director, Technology Transfer and Analysis, IC/DV.
Industry Policy and Operations Division,
Department of Defense, Russell Office,
Canberra, A.C.T. 2600.
Austria............................. Bundesministerium fur Handel Gewerbe und IC/DV.
Industrie Landstr. Haupstr. 55-57, Vienna 1031.
Belgium............................. Ministere Des Affaires Economiques Office IC/DV.
Central des Contingents et Licences 24-26 Rue
De Mot, Bruxelles-1040.
Bulgaria............................ Ministry of Trade 12 Al. Batenberg 1000 Sofia.. IC/DV.
China, People's Republic of......... Technology Import and Export Department MOFTEC PRC End-User
No. 2 Dong Chang An Street Beijing, Telephone: Certificate.
553031, Telex: 22478 MFERTCN.
Czech Republic...................... Federal Ministry of Foreign Trade Head of IC/DV.
Licensing Politickych Veznu 20 112 49 Praha 1.
Denmark............................. Handelsministeriets Licenskontor Kampmannsgade IC/DV.
1, DK 1604, Copenhagen V.
IC's also issued by Danmarks Nationalbank DV.
Holmens Kanal 17, Copenhagen K Custom-houses.
Finland............................. Hensingin Piiritullikamari, Kanavakatu 6 (or IC/DV.
P.O. Box 168) 00161 Helsinki.
France.............................. Ministere de l'Economie et des Finances IC/DV.
Direction Generale des Douanes et Droita
Indirects Division des Affaires Juridiques et
Contentieuses 8, Rue de la Tour des Dames,
Bureau D/3, 75436, Paris Codex 09.
Germany............................. Bundesamt fur gewerbliche Wirtschaft IC/DV.
Frankfurter Strasse 29-31 65760 Eschborn.
Greece.............................. Banque de Greece, Direction des Transactions IC/DV.
Commerciales avec l'Etranger Athens.
Hong Kong........................... Trade Department, Ocean Centre, Canton Road, IC/DV.
Tsimshatsui, Kowloon,.
Hungary............................. Ministry of International Economic Relations IC/DV.
Export Control Office 1054 Budapest P.O. Box
728 H-1365, Hold Str. 17.
India............................... Deputy Director General of Foreign Trade Udyog Indian IC.
Bhawan, Maulana Azad Road New Delhi 11011.
For small scale industries and entities, and those not elsewhere specified.
Directorate General of Technical Development, Indian IC
Udyog Bhawan, Maulana Azad Road, New Delhi
11011.
For the ``organized'' sector, except for computers and related equipment.
Defense Research and Development Organization Indian IC.
Room No. 224, ``B'' Wing Sena Bhawan, New
Delhi 110011.
For Defense organizations.
Department of Electronics, Lok Nayak Bhawan, Indian IC.
New Delhi 110003.
For computers and related electronic items.
Assistant Director, Embassy of India, Commerce Indian IC.
Wing, 2536 Massachusetts Ave. NW, Washington
D.C. 20008--.
For any of the above.
Ireland, Republic of................ Department of Industry, Trade, Commerce and IC/DV.
Tourism, Frederick House, South Frederick
Street, Dublin 2.
Italy............................... Ministero del Commercio con l'Estero Direzione IC/DV.
Generale delle Importazioni e delle
Esportazioni, Div. III, Rome Dogana Italiana
(of the town import where takes place).
[[Page 12827]]
Japan............................... Ministered of International Trade and Industry IC/DV.
in: Fukuoka, Hiroshima, Kanmon (Kitakyushu-
shi), Kobe, Nagoya, Osaka, Sapporo, Sendai,
Shikoku (Takamatsu-shi), Shimizu, Tokyo, and
Yokohama Japanese Customs Offices.
Korea, Republic of.................. Trade Administration Division Trade Bureau IC.
Ministry of Trade and Industry Jungang-Dong,
Kyonggi-Do, Building 3 Kwachon.
Republic of Korea Customs House................ DV.
Liechtenstein....................... Swiss Federal Office for Foreign Economic IC/DV.
Affairs, Import and Export Division
Zieglerstrasse 30, CH-3003 Bern.
Luxembourg.......................... Office des Licences Avenue de la Liberte, 10... IC/DV.
Netherlands......................... Centrale Dienst voor In-en Uitvoer Engelse Kamp IC/DV.
2, Groningen.
New Zealand......................... Comptroller for Customs P.O. Box 2218, IC/DV.
Wellington.
Norway.............................. Handelsdepartmentet Direktoratet for Eksport-og- IC/DV.
Importregulering Fr. Nansens plass 5, Oslo.
Pakistan............................ Chief Controller of Imports and Exports 5, IC.
Civic Center Islamabad.
Joint Science Advisor, Ministry of Science and DV.
Technology, Secretariat Block `S', Islamabad.
Poland.............................. Ministry of Foreign Economic Relations IC/DV.
Department of Commodities and Services Plac
Trzech Krzyzy 5, Room 358 00-507 Warsaw.
Portugal............................ Reparticao do Comercio Externo Direccao-Geral IC/DV.
do Comercio Secretaria de Estado do Comercio
Ministerio da Economia, Lisbon.
Romania............................. National Agency for Control of Strategic IC/DV.
Exports and Prohibition of Chemical Weapons,
13, Calea 13 Septembrie Casa (or P.O. Box 5-
10) Republicii, Gate A 1, Bucharest, Sector 5,
Phone: 401-311-2083, Fax: 401-311-1265.
Singapore........................... Controller of Imports and Exports, Trade IC/DV.
Development Board World Trade Centre, 1
Maritime Square, Telok Blangah Road,.
Slovakia............................ Ministry of Foreign Affairs Licensing- IC.
Registration Department Spitalska 8, 813 15
Bratislava.
Spain............................... Secretary of State for Commerce Paseo la IC/DV.
Cistellana 162, Madrid 28046.
Sweden.............................. The Association of Swedish Chambers of Commerce IC/DV.
& Industry P.O. Box 16050, S-103 22 Stockholm
Office: Vastra Tradgardsgatan 9.
Switzerland......................... Swiss Federal Office for Foreign Economic IC/DV.
Affairs, Import and Export Division,
Zieglerstrasse 30 CH-3003 Bern.
Taiwan.............................. Board of Foreign Trade Ministry of Economic IC/DV.
Affairs 1 Hu-Kou Street, Taipei.
Science-based Industrial Park Administration
No. 2 Hsin Ann Road, Hsinchu.
Export Processing Zone Administration 600
Chiachang Road Nantz, Kaohsiung.
Turkey.............................. Ministry of Commerce, Department of Foreign IC.
Commerce, Ankara.
Head Customs Office at the point of entry...... DV.
United Kingdom...................... Department of Trade and Industry Export IC.
Licensing Branch Millbank Tower Millbank
London, SW1P 4QU.
H.M. Customs and Excise, King's Beam House, DV
Mark Lane London, E.C. 3.
----------------------------------------------------------------------------------------------------------------
Supplement No. 5 to Part 748--U.S. Import Certificate and Delivery
Verification Procedure
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
BXA 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 BXA-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 BXA 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 BXA-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 BXA-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.
[[Page 12828]]
Munitions Import List (27 CFR 47.21). You will need to submit in
triplicate a completed Form BXA-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,
Office of Defense Trade Controls and use Form BXA-645P/ATF-4522/DSP-
53. You should contact the Treasury Department, Bureau of Alcohol,
Tobacco and Firearms for items appearing on the U.S. Munitions
Import List. You will need to use Form ATF-4522.
(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 Export Administration, 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:
Boston, MA
Buffalo, NY
Chicago, IL
Cincinnati, OH
Cleveland, OH
Dallas, TX
Detroit, MI
Houston, TX
Kansas City, MO
Los Angeles, CA
Miami, FL
New Orleans, LO
New York, NY
Philadelphia, PA
Phoenix, AZ
Pittsburgh, PA
Portland, OR
St. Louis, MO
San Francisco, CA
Savannah, GA
Seattle, WA
Trenton, NJ
(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 BXA 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 BXA 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 BXA. 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, BXA 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 BXA 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 BXA 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 BXA 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, you must identify the intended end-use of the
items in your letter.
(iii) Where the letter request is approved and is supported by a
foreign import certificate, no further approval from BXA is required
for the purchaser or transferee to resell or again transfer the
items. However, where BXA 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 BXA.
(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 BXA together with an explanatory
letter giving the U.S. International Import Certificate number, date
issued, and location of issuing office. BXA 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 BXA 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 BXA 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:
(1) All obligations undertaken by, and imposed under the EAR,
upon the holder of the certificate; and
[[Page 12829]]
(2) An undertaking that all subsequent sales or transfers will
be made subject to the same conditions.
(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 provisions of License Exception TUS (see
Sec. 740.4(c) of the EAR). However, all other provisions of the EAR
applicable to items of domestic origin shall apply to the reexport
of items of foreign origin shipped to the U.S. under a U.S.
International Import Certificate.
(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 BXA-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 Export Administration.
(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 BXA 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 BXA-647P, Delivery Verification Certificate, covering
items imported into the U.S. These requests are made by foreign
governments to assure that strategic items shipped to the U.S. are
not diverted from their intended destination. In these instances,
the issuance of an export license by the foreign country is
conditioned upon the subsequent receipt of a Delivery Verification
Certificate from the U.S. importer. Accordingly, your compliance
with your foreign exporter's request for a Delivery Verification is
necessary to ensure your foreign exporter fulfills its government
obligations and is able to participate in future transactions with
you. Failure to comply may subject your exporter to penalties that
may prevent future trade.
(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 BXA;
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 BXA-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 BXA-647P must be presented, in duplicate, to a U.S.
customs office. The U.S. customs office will certify Form BXA-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 BXA-647P together with an explanatory letter
requesting a Delivery Compliance Notice, to BXA at the address
listed in (a)(2)(i) of this supplement.
(ii) BXA 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 BXA. 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 BXA 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) BXA 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 BXA-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 within the definition of export control
documents provided in part 772 of the EAR.) Refer to Sec. 764.3 of
the EAR for more information.
PART 750--APPLICATION PROCESSING, ISSUANCE OR AND DENIAL
Sec.
750.1 Scope.
750.2 Processing of Classification Requests and Advisory Opinions.
750.3 Review of license applications by BXA and other government
agencies and departments.
750.4 Procedures for processing license applications.
750.5 Status on pending applications and other requests.
750.6 Denial of license applications.
750.7 Issuance of licenses.
750.8 Revocation or suspension of licenses.
750.9 Duplicate licenses.
750.10 Transfer of licenses for exports.
750.11 Shipping tolerances.
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995); E.O. 12981, 60 FR 62981.
Sec. 750.1 Scope.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C. This part describes the Bureau of Export
Administration's (BXA) process for reviewing your application for a
license, including processing times, denials, revocations, issuance,
duplicates, transfers, and
[[Page 12830]]
shipping tolerances on approved licenses. The processing times for
Classification and Advisory Opinion requests are also provided along
with directions on obtaining status on your pending application.
Sec. 750.2 Processing of Classification Requests and Advisory
Opinions.
(a) Classification requests. All classification requests submitted
in accordance with procedures described in Sec. 748.3 (a) and (b) of
the EAR will be answered within 14 calendar days after receipt. All
responses will inform the person of the proper classification (e.g.,
whether or not the item is subject to the Export Administration
Regulations (EAR) and, if applicable, the appropriate Export Control
Classification Number [ECCN]).
(b) Advisory Opinion requests. All advisory opinions submitted in
accordance with procedures described in Sec. 748.3(a) and (c) of the
EAR will be answered within 30 calendar days after receipt.
Sec. 750.3 Review of license applications by BXA and other government
agencies and departments.
(a) Review by BXA. In reviewing specific license applications, BXA
will conduct a complete analysis of the license application along with
all documentation submitted in support of the application. In addition
to reviewing the item and end-use, BXA will consider the reliability of
each party to the transaction and review any available intelligence
information. To the maximum extent possible, BXA will make licensing
decisions without referral of license applications to other agencies,
however, BXA may consult with other U.S. departments and agencies
regarding any license application.
(b) Review by other departments or agencies. (1) The Departments of
Defense, Energy, State, and the Arms Control and Disarmament Agency
(ACDA) have the authority to review any license application submitted
under the EAR. In addition, BXA may, where appropriate, refer license
applications to other U.S. government departments or agencies. These
agencies and departments will be referred to as ``agencies'' for the
purposes of this part. Though these agencies have the authority to
review any license application, they may determine that they do not
need to review certain types of license applications. In these
instances, the agency will provide BXA with a Delegation of Authority
to process those license applications without review by that particular
agency.
(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;
(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.
Sec. 750.4 Procedures for processing license applications.
(a) Overview. (1) All license applications will be resolved or
referred to the President no later than 90 calendar days from the date
of BXA's registration of the license application. Processing times for
the purposes of this section are defined in calendar days. The
procedures and time limits described in this part apply to all license
applications registered on or after February 4, 1996. The procedures
and time limits in effect prior to December 6, 1995 will apply to
license applications registered prior to February 4, 1996.
(2) Properly completed license applications will be registered
promptly upon receipt by BXA. Registration is defined as the point at
which the application is entered into BXA's electronic license
processing system. If your application contains deficiencies that
prevent BXA from registering your application, BXA will attempt to
contact you to correct the deficiencies, however, if BXA 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 BXA 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) Actions not included in processing time calculations. The
following actions will not be counted in the time period calculations
described in paragraph (a)(1) of this section for the processing of
license applications:
(1) Agreement by the applicant to the delay. BXA may request
applicants provide additional information in support of their license
application, respond to questions arising during processing, or accept
proposed conditions or riders on their license application. If BXA has
provided the applicant with an intent to deny letter described in
Sec. 750.6 of this part, processing times may be suspended in order to
negotiate modifications to a license application and obtain agreement
to such modifications from the foreign parties to the license
application.
(2) Pre-license checks. If a pre-license check, to establish the
identity and reliability of the recipient of the controlled items, is
conducted through government channels, provided that:
(i) The need for such a pre-license check is established by the
Secretary, or by another agency, if the request for a pre-license check
is made by such agency and the request is made in accordance with the
following time frames;
(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) Government-to-Government assurances. Requests for government-
to-government assurances of suitable end-use of items approved for
export or reexport when failure to obtain such assurances would result
in rejection of the license application, provided that:
(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) Consultations. Consultation with other governments, if such
consultation is provided for by a relevant bilateral
[[Page 12831]]
arrangement or multilateral regime as a precondition for approving a
license.
(5) Multilateral reviews. Multilateral review of a license
application if such review is required by the relevant multilateral
regime.
(6) Congressional notification. Under Section 6(j) of the Export
Administration Act, as amended (EAA), the Secretaries of Commerce and
State are required to notify appropriate Committees of the Congress 30
days prior to issuing a license to any country designated by the
Secretary of State as being terrorist supporting for any items that
could make a significant contribution to the military potential of such
countries, or could enhance the ability of such countries to support
acts of international terrorism. Accordingly, the issuance of any
license subject to this requirement will be delayed for 30 days.
(i) Designated countries. The following countries have been
designated by the Secretary of State as terrorist-supporting countries:
Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.
(ii) Items subject to notification requirement. License
applications involving the export or reexport of the following items to
the military, police, intelligence or other sensitive end-users are
subject to this notification requirement:
(A) All items controlled for national security reasons, except
digital computers with a Composite Theoretical Performance (CTP) less
than 500 Mtops;
(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) Additional notifications. The Secretaries of Commerce and
State must also notify the appropriate Congressional committees 30 days
before a license is issued for the export or reexport of any item
controlled on the CCL to a designated country if the Secretary of State
determines that the export or reexport ``could make a significant
contribution to the military potential of such country, including its
military logistics capability, or could enhance the ability of such
country to support acts of international terrorism.''
(c) Initial processing. Within 9 days of license application
registration, BXA will, as appropriate:
(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) Review by other agencies and/or interagency groups.
(1) Within 10 days of receipt of a referral the reviewing agency
must advise BXA of any information not contained in the referral as
described in paragraph (c)(5) of this section. BXA will promptly
request such information from the applicant. The time that elapses
between the date the information is requested by the reviewing agency
and the date the information is received by the reviewing agency will
not be counted in processing time frames.
(2) Within 30 days of receipt of the initial referral, the
reviewing agency will provide BXA 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) The Missile Technology Export Control Group (MTEC). The MTEC,
chaired by the Department of State, reviews license applications
involving items controlled for missile technology reasons. The MTEC
also reviews license applications involving items not controlled for
missile technology (MT) reasons, but destined for a country and/or end-
use/end-user of MT concern.
(ii) The SubGroup on Nuclear Export Coordination (SNEC). The SNEC,
chaired by the Department of State, reviews license applications
involving items controlled for nuclear nonproliferation reasons. The
SNEC also reviews license applications involving items not controlled
for nuclear nonproliferation (NP) reasons, but destined for a country
and/or end-use/end-user of NP concern.
(iii) The Shield. The Shield, chaired by the Department of State,
reviews license applications involving items controlled for chemical
and biological weapons reasons. The Shield also reviews license
applications involving items not controlled for chemical and biological
weapons (CBW) reasons, but destined for a country and/or end-use/end-
user of CBW concern.
(e) Recommendations by reviewing agencies. Reviewing agencies
recommending denial of a license application must provide a statement
of reasons, consistent with the provisions of the EAA or EAR, and cite
both the statutory and the regulatory basis for the recommendation to
deny. A reviewing agency that fails to provide a recommendation within
30 days with a statement of reasons supported by the statutory and
regulatory basis shall be deemed to have no objection to the final
decision of BXA.
(f) Interagency dispute resolution and escalation procedures--(1)
Escalation to the Operating Committee (OC). (i) In any instance where
the reviewing agencies are not in agreement on final disposition of a
license application, it will be escalated to the OC for resolution. The
Chair of the OC will consider the recommendations of the reviewing
agencies and any information provided by the applicant in person during
an open OC session. Each agency will be informed of the Chair's
decision on the license application within 14 days after the deadline
for receiving agency recommendations.
(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) Escalation to the Advisory Committee on Export Policy (ACEP).
Requests for escalation to the ACEP must be in writing from an official
appointed by the President with the advice and consent of the Senate,
or a person properly acting in such capacity, and cite both the
statutory and the regulatory basis for the appeal. The ACEP will review
all relevant information and recommendations. The Chair of the ACEP
will inform the reviewing agencies of the majority vote decision of the
ACEP within 11 days from the date of receipt of the escalation request.
Within 5 days of the decision, any dissenting agency may appeal in
writing the ACEP's decision to the
[[Page 12832]]
Secretary of Commerce in the Secretary's capacity as the Chair of the
Export Administration Review Board. The written request must be made by
the head of the agency requesting escalation and cite both the
statutory and the regulatory basis for the appeal. Within the same
period of time, the Secretary may initiate a meeting on his or her own
initiative to consider a license application. In the absence of a
timely appeal, the decision of the ACEP will be final.
(3) Escalation to the Export Administration Review Board (EARB).
The EARB will review all relevant information and recommendations, and
such other export control matters as may be appropriate. The Secretary
of Commerce will inform the reviewing agencies of the majority vote
decision of the EARB within 11 days from the date of receipt of the
appeal. Within 5 days of the decision, any agency dissenting from the
decision of the EARB may appeal the decision to the President. The
appeal must be in writing from the head of the dissenting agency. In
the absence of a timely appeal, the decision of the EARB will be final.
Sec. 750.5 Status of pending applications and other requests.
(a) Information available. You may contact BXA for status of your
pending Classification Request, Advisory Opinion, or license
application. For Advisory Opinion requests, telephone (202) 482-4905 or
send a fax to (202) 219-9179. For license applications and
Classification requests, telephone BXA's System for Tracking Export
License Applications (``STELA'') at (202) 482-2752. STELA is an
automated voice response system, that upon request via any standard
touch-tone telephone, will provide you with up to the minute status on
any license application pending at BXA. Requests for status may be made
only by the applicant or the applicant's agent.
(b) STELA's hours. STELA is operational Monday through Friday from
7:15am to 11:15pm and on Saturday from 8:00am to 4:00pm, Eastern Time.
If you have any difficulty accessing STELA, contact during normal
business hours, one of BXA's offices listed in Sec. 748.2(a) of the
EAR.
(c) Procedures to access information on STELA. Once you dial STELA
you will be instructed to enter your Application Control Number using
your push button telephone keys. After you enter the Application
Control Number, STELA will provide you with the current status of your
license application or Classification request.
Sec. 750.6 Denial of license applications.
(a) Intent to deny notification. If BXA intends to deny your
license application, BXA will notify you in writing within 5 days of
the decision. The notification will include:
(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 BXA to reconsider the license application;
(5) The name of the BXA representative in a position to discuss the
issues with the applicant; and
(6) The availability of appeal procedures.
(b) Response to intent to deny notification. You will be allowed 20
days from the date of the notification to respond to the decision
before the license application is denied. If you respond to the
notification, BXA will advise you if, as a result of your response, the
decision to deny has been changed. Unless you are so advised by the
45th day after the date of the notification, the denial will become
final, without further notice. You will then have 45 days from the date
of final denial to exercise the right to appeal under part 756 of the
EAR.
Sec. 750.7 Issuance of licenses.
(a) Scope. A license authorizes only a specific transaction, or
series of transactions, as described in the license application and any
supporting documents. A license application may be approved in whole or
in part or further limited by conditions or other restrictions
appearing on the license itself or in the EAR. When a license
application is approved by the BXA, a license is issued as described in
paragraph (b) of this section.
(b) Issuance of a license. After a license application is approved,
a computer generated license is issued by the Department of Commerce
bearing the license number and a validation date. Where appropriate,
the license will also show an expiration date. Where necessary,
attachments to a license will also be validated with the Department of
Commerce seal and the date of validation. Exporters must use the
complete license number when preparing a Shipper's Export Declaration
(SED) and other export control documents, and in communicating with the
Department of Commerce concerning the license.
(c) Changes to the license. The following non-material changes do
not require submission of a ``Replacement'' license or any other
notification to BXA. (If you wish to make any change not identified in
this paragraph, you will need to submit a ``Replacement'' license in
accordance with the instructions contained in Supplement No. 1 to part
748 of the EAR, Block 11):
(1) Decrease in unit price or total value;
(2) Increase in price or quantity if permitted under the shipping
tolerances in Sec. 750.11 of this part;
(3) 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.;
(4) 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;
(5) 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;
(6) 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:
(i) 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;
(ii) The shipment is moving on a through bill of lading;
(iii) 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;
(iv) The carrier retains custody of the shipment until it is
delivered to the ultimate consignee; and
(v) The original bill of lading or air waybill first issued at the
port of export is delivered with the shipment to the ultimate
consignee;
(7) Change in address of purchaser or ultimate consignee if the new
address is located within the same country shown on the license; or
(8) Change in ECCN, unit of quantity, unit price, or wording of the
item
[[Page 12833]]
description (where necessary only for the purpose of conforming to an
official revision in the CCL). This does not cover an actual change in
the item to be shipped, or an increase in the price or quantity.
(d) Responsibility of the licensee. If a license is issued to you,
you become the licensee. The licensee will be held accountable for use
of the license, whether as a principal (exporting for your own account)
or as an agent (including an agent acting for the account of a foreign
principal who is not subject to the jurisdiction of the United States).
You, as the licensee, assume responsibility for effecting the export or
reexport, for proper use of the license, and for due performance of all
of the license's terms and conditions. The obligations arising under
the provisions of the EAA and the EAR are the same whether the license
application is submitted and issued in writing or electronically.
(e) Prohibited use of a license. No person convicted of a violation
of any statute specified in section 11(h) of the EAA, at the discretion
of the Secretary of Commerce, may apply for any license for a period up
to 10 years from the date of the conviction. See Sec. 766.25 of the
EAR.
(f) Quantity of commodities authorized. Unlike software and
technology, commodities will be approved with a quantity or dollar
value limit. The ``Unit'' paragraph within each CCL commodity entry
will list a specific ``Unit'' for those commodities controlled by that
entry. Any license resulting from a license application to export or
reexport commodities will be licensed in terms of the specified
``Unit''. If a commodity is licensed in terms of ``$ value'', the unit
of quantity commonly used in trade may also be shown on the license.
Though this unit may be shown on the approved license, the quantity of
commodities authorized is limited entirely by the total dollar value
shown on the approved license.
(g) License validity period. Licenses involving the export or
reexport of items will generally have a 24-month validity period,
unless a different validity period has been requested and specifically
approved by BXA. Exceptions from the 24-month validity period include,
license applications reviewed and approved as an ``emergency'' (See
Sec. 748.5 (g) of the EAR), license applications for items controlled
for short supply reasons, and Special Comprehensive Licenses.
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 validity
periods for Special Comprehensive Licenses.)
(1) Extended validity period. Validity periods in excess of 24
months generally will not be granted. BXA will consider granting a
validity period exceeding 24 months when extenuating circumstances
warrant such an extension, however, no changes will be approved related
to any other particular on the license (e.g., parties to the
transaction, countries of ultimate destination, etc.). For example, an
extended validity period will generally be granted where the
transaction is related to a multi-year project, when production lead
time will not permit an export or reexport during the original validity
period of the license, when an unforeseen emergency prevents shipment
within the 24-month validity of the license, or for other similar
circumstances. A continuing requirement to supply spare or replacement
parts will not normally justify an extended validity period. Licenses
issued in accordance with the emergency clearance provisions contained
in Sec. 748.5(g) of the EAR will not be extended. See Sec. 752.9 of the
EAR for information relating to the extension of a Special
Comprehensive License.
(2) Request for extension. (i) The applicant must submit a letter
in writing to request an extension in the validity period of a
previously approved license. The subject of the letter must be titled:
``Request for Validity Period Extension'' and contain the following
information:
(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, BXA will
provide the applicant with a written response.
(h) Specific types of licenses--(1) Licenses for temporary exports
or reexports. If you have been granted a license for the temporary
export or reexport of items and you decide not to return the items to
the United States, you must submit a license application requesting
authorization to dispose of the items. Except when the items are to be
used on a temporary basis at a new destination (and returned to the
United States after such use), you must ensure that your license
application is accompanied by all documents that would be required if
you had requested a license to export or reexport the same item
directly to the new destination.
(2) Intransit within the United States. If you have been issued a
license authorizing an intransit shipment (that does not qualify for
License Exception TUS) through the United States, your license will be
valid only for the export of the intransit shipment wholly of foreign
origin and for which a Transportation and Exportation customs entry or
an Immediate Exportation customs entry is outstanding.
(3) Intransit outside the United States. If you have been issued a
license authorizing unlading or transit through a country listed in the
General Prohibition Eight contained in Sec. 736.2(b)(8) of the EAR, and
you did not know the identity of the intermediate consignee at the time
of the original license application, you must notify BXA in writing
once you have ascertained the identity of the intermediate consignee.
Your notification must contain the original license number, and the
complete name, address, and telephone number of the intermediate
consignee. The written request must be submitted to BXA at the address
listed in Sec. 748.2(c) of the EAR.
(4) Replacement license. If you have been issued a ``replacement''
license (for changes to your original license that were not covered in
paragraph (c) of this section), you must attach the ``replacement''
license to the original, and retain both.
(i) Records. If you have been issued a license you must retain the
license, and maintain complete records in accordance with part 762 of
the EAR including any licenses (whether used or unused, valid or
expired) and all supporting documents and shipping records.
Sec. 750.8 Revocation or suspension of licenses.
(a) Revocation. All licenses for exports or reexports are subject
to revision, suspension, or revocation, in whole or in part, without
notice whenever it is known that the EAR have been violated or that a
violation is about to occur. BXA's Office of Exporter Services may
revoke any license in which a person who has been convicted of one of
the statutes specified in section 11(h) of the EAA, at the
[[Page 12834]]
discretion of the Secretary of Commerce, has an interest in the license
at the time of the conviction. It may be necessary for BXA to stop a
shipment or an export or reexport transaction at any stage in the
process (e.g., in order to prevent an unauthorized export or reexport).
If a shipment is already en route, it may be further necessary for BXA
to order the return or unloading of such shipment at any port of call
in accordance with the provisions of the EAA.
(b) Return of revoked or suspended licenses. If BXA revokes or
suspends a license, the licensee shall return the license immediately
upon notification that the license has been suspended or revoked. The
license must be returned to BXA at the address listed in Sec. 748.2(c)
of the EAR, Attn:'' Return of Revoked/Suspended License''. All
applicable supporting documents and records of shipments must be
retained by the licensee in accordance with the recordkeeping
provisions of part 762 of the EAR. If the licensee fails to return a
license immediately upon notification that it has been suspended or
revoked, BXA may impose sanctions provided for in part 764 of the EAR.
Sec. 750.9 Duplicate licenses.
(a) Lost, stolen or destroyed. If a license is lost, stolen or
destroyed, you, as the licensee, may obtain a duplicate of the license
by submitting a letter to the BXA at the address listed in
Sec. 748.2(c) of the EAR, Attention: Duplicate License Request''. You
must certify in your letter:
(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 BXA. 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) Hong Kong Trade Department. BXA will automatically issue a
duplicate license whenever the license lists a party in Hong Kong as
the intermediate consignee, or when Hong Kong is identified as the
country from which the reexport will take place. The duplicate license
will be labeled ``Duplicate for Hong Kong Trade Department''. This
duplicate must be forwarded to the reexporter or intermediate consignee
for submission to the Hong Kong Trade Department. The original license
must be retained on file by the licensee in accordance with the
recordkeeping provisions contained in part 762 of the EAR.
Sec. 750.10 Transfers of licenses for exports.
(a) Authorization. As the licensee, you may not transfer a license
issued for the export of items from the United States to any other
party, except with the prior written approval of BXA. BXA may authorize
a transfer of a license for export to a transferee who is subject to
the jurisdiction of the United States, is a principal party in
interest, and will assume all powers and responsibilities under the
license for the control of the shipment of the items out of the United
States. BXA will approve only one transfer of the same license and only
transfers of licenses to export items.
(b) How to request the transfer of licenses--(1) Letter from
licensee. You, as the licensee, must submit a letter in writing to
request a transfer of a license or licenses. The letter must contain
the following information:
(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 BXA, 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) Information from transferee. The person to whom you wish to
transfer your license(s) must provide you a signed letter, that must be
submitted with your request, containing the following:
(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) Notification of transfer and recordkeeping. Unless instructed
otherwise by BXA, you must retain the license(s) pending notification
by the BXA of the action taken. If the request is approved, you must
forward the license(s) to the transferee and the validated letter
received from BXA authorizing the transfer. If the transfer request is
not approved, the license(s) must either be returned to BXA or used by
you if you so choose and have retained the legal and operational
capacity fully to meet the responsibilities imposed by the license(s).
If your initial request is returned by BXA for additional information,
after obtaining the necessary information you may resubmit your
request.
Sec. 750.11 Shipping tolerances.
(a) Applicability and use of shipping tolerances. Under some
circumstances, you may use a license issued for the export of items
from the United States to export more than the quantity or value shown
on that license. This additional amount is called a shipping tolerance.
This section tells you, as the licensee, when you may take advantage of
a shipping tolerance and the amount
[[Page 12835]]
of shipping tolerance you are permitted to use.
(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) Calculating shipping tolerances. There are three basic rules,
one for items licensed by ``Dollar Value'', one for items licensed by
``Number'', and another for items licensed by ``Area, Weight or other
Measure''.
(1) Items licensed by ``Dollar Value''. If the ``Unit'' paragraph
in the ECCN applicable to your item reads ``Sec. value'' or ``in
Sec. value'', there is no shipping tolerance. You may not ship more
than the total dollar value stated on your license.
(2) Items licensed by ``Number''. If the ``Unit'' paragraph in the
ECCN applicable to your item reads ``Number'' or ``in Number'', there
is no shipping tolerance with respect to the number of units. However,
the value of all of your shipments under one license may exceed the
total dollar value stated on that license by up to 25%.
(3) Items licensed by ``Area, Weight or Measure''. If the ``Unit''
paragraph in the ECCN applicable to your item reads ``kilograms'' or
``square meters'' or some other unit of area, weight or measure, your
shipment may exceed the unshipped balance of the area, weight or other
measure listed on your license by up to 10% and the total dollar value
shown on your license by up to 25%, unless;
(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) Examples of shipping tolerances.--(1) A license authorizes the
export of 100,000 kilograms of an item controlled by an ECCN where the
``Unit'' is stated as ``kilograms'', the total cost of which is
$1,000,000:
(i) One shipment. If one shipment is made, the quantity that may be
exported may not exceed 110,000 kg (10% tolerance on the unshipped
Area, Weight, or Measure balance), and the total cost of that one
shipment may not exceed $1,250,000:
$1,000,000.. (the total value shown on the license)
+250,000.... (25% of the total value shown on the license)
-------------
$1,250,000..
(ii) Two shipments. If the first shipment is for 40,000 kg (valued
at $400,000), the second shipment may not exceed 66,000 kg (10% of the
unshipped balance of 60,000 kg (6,000 kg) plus the unshipped balance),
and the total cost of the second shipment shall not exceed $850,000:
$600,000.... (the value of the unshipped balance of 60,000 kg)
+250,000.... (25% of the original total value shown on the license)
-------------
$850,000....
(iii) Three shipments. If the first shipment is for 40,000 kg
(valued at $400,000) the second shipment is for 20,000 kg (valued at
$200,000), the third shipment may not exceed 44,000 kg (10% of the
unshipped balance of 40,000 kg (4,000 kg) plus the unshipped balance),
and the total cost of the third shipment can not exceed $650,000:
$400,000.... (the value of the unshipped balance of 40,000 kg)
+250,000.... (25% of the original total value on the license)
-------------
$650,000....
(2) A license authorizes the export of an item controlled by an
ECCN where the ``Unit'' is stated as ``$ 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:
$10,000,000. (the total value shown on the license)
+2,500,000.. (25% of the total value shown on the license)
-------------
$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:
$6,000,000.. (the value of the unshipped 6 pieces).
+2,500,000.. (25% of the original total value shown on the license).
-------------
$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:
$3,000,000.. (the value of the unshipped 3 pieces).
+2,500,000.. (25% of the original value shown on the license),
-------------
$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.
PART 752--SPECIAL COMPREHENSIVE LICENSE
Sec.
752.1 Scope.
752.2 Eligible activities.
752.3 Eligible items.
752.4 Eligible countries.
752.5 Steps you must follow to apply for an SCL.
752.6 Reexports.
752.7 Direct shipment to customers.
752.8 SCL application review process.
752.9 Action on SCL applications.
752.10 Changes to the SCL.
752.11 Internal Control Programs.
752.12 Recordkeeping requirements.
752.13 Inspection of records.
752.14 System reviews.
752.15 Export clearance.
752.16 Administrative actions.
752.17 BXA mailing addresses.
[[Page 12836]]
Supplement No. 1 to Part 752: Instructions for Completing Form BXA-
748P, Multipurpose Application, for Requests for Special Comprehensive
Licenses
Supplement No. 2 to Part 752: Instructions for Completing Form BXA-
748P-A, Item Annex
Supplement No. 3 to Part 752: Instructions for Completing Form BXA-752,
Statement by Consignee in Support of Special Comprehensive License
Supplement No. 4 to Part 752: Instructions for Completing Form BXA-752-
A, Reexport Territories
Supplement No. 5 to Part 752: Instructions for Completing Form BXA-
748P-B End-User Appendix
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 752.1 Scope.
(a)(1) Introduction. In this part, references to the EAR are
references to 15 CFR chapter VII, subchapter C. This part describes the
provisions of the Special Comprehensive License (SCL). You may apply
for an SCL, when appropriate, in lieu of a license described in part
748 of the EAR, or a License Exception described in part 740 of the
EAR, for multiple exports and reexports of items subject to the EAR.
The SCL provides authorization to make specified exports and reexports
that are otherwise prohibited by General Prohibitions One, Two, and
Three described in part 734 of the EAR. The existence of an SCL does
not supersede an exporter's obligation to request a separate license as
may be required by part 744 of the EAR. Because the Bureau of Export
Administration (BXA) does not review each individual transaction
authorized by an SCL, parties to the SCL must have the mechanisms in
place to ensure that each export and reexport made under an SCL meets
all the terms and conditions of the license and are in accordance with
all applicable provisions of the EAR. It is through the design and
effective implementation of an Internal Control Program (ICP) that the
SCL holder and the SCL consignee (referred to as ``consignee'' for
purposes of this part) assure that exports and reexports are not made
contrary to the EAR.
(2) Definitions. (i) SCL holder. As used in this part, ``SCL
holder'' is that party approved on an SCL to perform activities
approved under the SCL.
(ii) SCL consignee. As used in this part, ``SCL consignee'' or
``consignee'' means any party authorized to receive items under the SCL
and named as a consignee on an approved Form BXA-752, Statement by
Consignee in Support of Special Comprehensive License.
(b) ICP requirement. To qualify for an SCL, you must develop an
ICP. Section 752.11 of this part includes a general description of the
elements of the ICP, and guidance on which elements your company must
implement before making shipments under the SCL. The elements of the
ICP your company will develop reflect the complexity of the activities
authorized under the SCL, the countries and items involved, and the
relationship between the SCL holder and the approved consignees. BXA
may require you to include in your ICP any combination of elements,
depending upon the nature of your SCL application. During your pre-
application consultation required by Sec. 752.5(a)(1), BXA will provide
you guidance on which elements you must implement.
Sec. 752.2 Eligible activities.
(a) Possible authorizations. Under the SCL, BXA may authorize you
to perform any number of activities, which can be grouped under the
general categories of ``service'', ``end-user'', ``distribution'' and
``other'' activities. Examples of the general categories include:
(1) Service activities. Exporting items subject to the EAR as spare
and replacement parts for servicing or stocking.
(2) End-user activities. Exporting and reexporting items subject to
the EAR for use as capital equipment.
(3) Distribution activities. Exporting and reexporting items
subject to the EAR for the purpose of resale and reexport by
consignees.
(4) Other activities. Other activities not included in paragraphs
(a)(1) through (a)(3) of this section may be authorized by BXA under
the SCL on a case-by-case basis.
(b) Prohibited activities. The general prohibitions described in
Sec. 736.2(b)(4) through (10) of the EAR apply to all exports and
reexports by, and conduct of, all parties approved on your SCL, unless
you are specifically authorized under the SCL to perform such
activities, or the particular activity otherwise qualifies for a
License Exception described in part 740 of the EAR.
Sec. 752.3 Eligible items.
(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, 1E001,
1E351, 1E391, 2B352, and 2E301 on the CCL that can be used in the
production of biological weapons;
(3) Items controlled by ECCNs 1C350, 1D390, 1E001, 1E350, 1E391,
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 (see Supplement No. 1 to part
740 of the EAR);
(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) Maritime (civil) nuclear propulsion systems or associated
design or production software and technology identified in Sec. 744.5
of the EAR;
(6) Communications intercepting devices controlled by ECCN 5A980 on
the CCL;
(7) Items specifically identified as ineligible by BXA on your
approved SCL; and
(8) 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.
Sec. 752.4 Eligible countries.
(a) General provisions. All countries are eligible under the SCL
except:
(1) Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.
(2) Other countries that BXA may designate on a case-by-case basis
as ineligible to receive items under the SCL.
(b) Servicing prohibitions. Under the SCL, you may not service any
item when you know that the item is owned or controlled by, or under
the lease or charter of, entities in countries identified in paragraphs
(a)(1) and (a)(2) of this section or any national of such countries.
Sec. 752.5 Steps you must follow to apply for an SCL.
(a) Step One: Establish applicant reliability--(1) Pre-application
consultation. To apply for an SCL, BXA must determine your reliability
as a potential SCL holder. BXA usually does this through consultation
with company officials and a review of the criteria identified in
paragraph (a)(2) of this
[[Page 12837]]
section. To determine whether your company requires a consultation
before you apply for an SCL, contact BXA at the address, phone, or
telefacsimile numbers included in Sec. 752.17 of this part.
(2) Criteria for determining eligibility. BXA will review the
following criteria to help determine SCL holder eligibility:
(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) Step Two: Establish consignee reliability--(1) Requirements.
You must make an initial determination of the reliability of all
consignees that are listed on your application for an SCL, based upon
the criteria described in paragraph (b)(2) of this section.
(2) Determining reliability. The criteria that you should take into
consideration include, but are not limited to, the following:
(i) Criteria. (A) The proposed consignee has a satisfactory record
established through BXA pre-license checks, or extensive experience as
a consignee under any license issued by BXA;
(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) Exception. The provisions of paragraph (b)(2)(i) of this
section do not preclude the authority of BXA to determine the
reliability and eligibility of a proposed consignee. BXA may, based
upon any negative information on the proposed consignees, deny a
proposed consignee.
(c) Step Three: Prepare your documentation. Complete Form BXA-748P,
Multipurpose Application, Form BXA-748P-A, Item Appendix, Form BXA-
748P-B, End-User Appendix, an ICP, a comprehensive narrative statement,
Form BXA-752, Statement by Consignee in Support of Special
Comprehensive License, Form BXA-752-A, Reexport Territories, and all
applicable certifications. Submit this documentation to BXA at one of
the addresses included in Sec. 752.17 of this part.
(1) Form BXA-748P, Multipurpose Application, and Form BXA-748P-A,
Item Appendix. You must complete Form BXA-748P and Form 748P-A
according to the instructions found in Supplement Nos. 1 and 2 of this
part.
(2) Form BXA-748P-B, End-User Appendix. You must identify end-users
on Form BXA-748P-B if you are requesting approval to export or reexport
items controlled for nuclear nonproliferation or chemical and
biological control reasons.
(3) ICP. You must provide a copy of your proposed ICP as required
by Sec. 752.11 of this part. You must indicate whether any of the
elements of the ICP will not be implemented and explain why these
elements were deemed inapplicable. Existence of a properly constructed
ICP will not relieve you of your responsibility to comply with
requirements of all applicable regulations pertaining to your SCL;
(4) Comprehensive narrative statement. Prepare a comprehensive
narrative statement on your company letterhead that includes the
following information:
(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 BXA, an ICP that incorporates all applicable elements
listed in Sec. 752.11 of this part and any additional elements as
required by BXA 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) Form BXA-752, Statement of Consignee in Support of Special
Comprehensive License. This Form is completed by each consignee. You
must submit one completed, signed, original Form BXA-752 for each
proposed consignee on your SCL application. See Supplement No. 3 to
this part for instructions on completing Form BXA-752. Form BXA-752 is
not required if the proposed consignee is both an end-user and a
``foreign government agency'' as defined in part 772 of the EAR.
(6) Form BXA-752-A, Reexport Territories. You must complete Form
BXA-752-A, and attach it to the appropriate Form BXA-752, whenever
Blocks 8B, 8C, 8E, and/or 8F are selected on Form BXA-752. See the
instruction found in Supplement No. 3 to this part. Form BXA-752-A is
not required if the proposed consignee is both an end-user and a
foreign government agency (see part 772 of the EAR for a definition of
foreign government agency).
(7) Consignee certifications. Each consignee must provide certain
certifications on company letterhead that is signed by the consignee.
Attach certifications to the appropriate Form BXA-752. Each consignee
must certify that:
(i) They will implement, upon approval of the SCL by BXA, an ICP
that incorporates all applicable elements listed in Sec. 752.11 of this
part and any additional elements as required by BXA 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 Sec. 752.14 of this part, and the reexport
restrictions of Sec. 752.6 of this part; and
(iii) They will make available for inspection, upon request by BXA,
all records required by Sec. 752.12 of this part and part 762 of the
EAR.
(8) Additional certifications. (i) Temporary exports. Proposed
consignees that plan to exhibit or demonstrate items in countries other
than those in which they are located or are authorized under an SCL, an
approved Form BXA-752, or a License Exception described in
Sec. 740.4(a)(2)(iii) of the EAR may obtain permission to do so by
including the following additional certification on company letterhead,
and attaching it to Form BXA-752.
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 Export Administration.
(ii) Chemicals and chemical and biological equipment certification.
If you are requesting authority to export chemicals or chemical and
biological
[[Page 12838]]
equipment eligible for the SCL (items controlled by ECCNs 1C351, 1C352,
1C353, 1C354, 1D390, 1E001, 1E350, 1E351, 1E391, 2B350, 2B351, 2B352,
and 2E301 (see Supplement No. 1 to part 774 of the EAR), all consignees
not located in country group A:3 (see Supplement No. 1 to part 740 of
the EAR) must include the following certification on company
letterhead:
No chemicals or chemical or biological 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 Export Administration,
and in no case will the items be transferred, resold, or reexported
to a party who is not the end-user.
(iii) Nuclear proliferation certification. If you are requesting
the export or reexport under the EAR of items controlled for nuclear
nonproliferation reasons described in Sec. 744.2 of the EAR, prior to
submitting an SCL application, you must obtain a signed written
statement from the proposed consignee(s) and end-users certifying the
following:
(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 Sec. 744.2 of the EAR; and
(B) Written authorization will be obtained from BXA 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.
Sec. 752.6 Reexports.
(a) Authorized reexports. All consignees may reexport items without
approval from BXA under any one of the following circumstances, unless
otherwise specifically excluded by the provisions of the EAR or by a
condition placed on your SCL.
(1) Reexports that qualify for a License Exception authorized by
part 740 of the EAR;
(2) Reexports to destinations approved by BXA through validation of
Form BXA-752 and/or Form BXA-752-A according to the terms stated on the
Form BXA-752 or BXA-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 Sec. 752.3 of this part.
(b) Prohibitions. You are prohibited from the following activities
without specific authorization from BXA:
(1) Transferring, reselling, or reexporting under your SCL any
chemicals or chemical and biological equipment (ECCNs 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) Sourcing. Consignees who obtain U.S.-origin items abroad that
are eligible for the SCL but that are subject to General Prohibitions
One, Two, or Three (see part 734 of the EAR) may reexport them under
the authority of your SCL, provided that they are reexported in
accordance with the ICP required by Sec. 752.11 of this part, and any
other applicable conditions or reexport restriction placed on your SCL
by BXA. Either the SCL holder or the consignee through the SCL holder
must submit the sourcing request for reexport of items on Form BXA-752.
Sec. 752.7 Direct shipment to customers.
(a) General authorization. (1) Upon request by a consignee, an SCL
holder or another consignee approved under the same SCL is authorized
to deliver products directly to the requesting consignee's customer in
either:
(i) The requesting consignee's country; or
(ii) Another country authorized to receive items under the
requesting consignee's validated Form BXA-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) Procedures--(1) Exports by an SCL holder. The SCL holder may
make a direct shipment by entering on the Shipper's Export Declaration
the name and address of the customer as ultimate consignee and adding
the notation ``by order of (name and address of consignee requesting
the direct shipment)''. The notation must appear below the item
description and must cite the SCL number followed by the three digit
number of the consignee requesting the ``by order of'' shipment.
(2) Reexports by a consignee. An approved consignee may make a
direct reexport shipment to a customer of another approved consignee on
the same SCL by showing on the commercial invoice the name and address
of the customer as ultimate consignee and adding the notation ``by
order of (name and address of consignee requesting the direct
shipment).''
Sec. 752.8 SCL application review process.
(a) Scope. Under an SCL, you are authorized to make multiple
exports and reexports without review and approval of each individual
transaction by BXA. To approve an SCL, BXA must be satisfied that the
persons benefiting from this license will adhere to the conditions of
the license and the EAR, and that approval of the application will not
be detrimental to U.S. national security, nonproliferation, or foreign
policy interests. In reviewing and approving a specific SCL request,
BXA retains the right to limit the eligibility of items or to prohibit
the export, reexport, or transfer of items under the SCL to specific
firms, individuals, or countries.
(b) Elements of review. To permit BXA to make such judgments, BXA
will thoroughly analyze your past export and reexport transactions,
inspect your export and reexport documents, and interview company
officials of both the applicant and the consignees, as necessary. If
BXA cannot verify that an appropriate ICP will be implemented upon
approval of the SCL by BXA, or establish the reliability of the
proposed parties to the application, it may deny the application, or
modify it by eliminating certain consignees, items, countries, or
activities.
(c) Order requirement. You do not need to have in your possession
an order from the proposed consignee at the time you apply for an SCL.
However, evidence of a consignee's firm intention to place orders on a
continuing basis is required.
(d) Criteria for review. BXA will consider the following factors
during the processing of your SCL application:
(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;
[[Page 12839]]
(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) Application processing time-frames. Upon receiving an SCL
application, BXA may review the application for up to two weeks to
determine whether the SCL application is complete. When all
documentation requirements are met, BXA will register the application.
After the date of registration, the SCL application will be processed
according to the procedures described in part 750 of the EAR.
Sec. 752.9 Action on SCL applications.
(a) Approval of SCL applications.--(1) Validity period. SCLs are
valid for four years from the date of approval.
(2) Extension of validity period. You may request an extension of
your valid SCL for an additional four years, but such requests must be
received by BXA at least 30 days prior to the expiration of your SCL.
If approved, Form BXA-748P and your letter requesting an extension will
be validated and returned to you, extending the validity period for
four years. No further extensions will be approved. A new application
and support documentation is required at the end of that eight-year
period. To apply for an extension, complete Form BXA-748P by completing
Blocks 1, 2, 3 and 4. Mark ``Special Comprehensive License'' in Block 5
and ``change'' in Block 6. Include your SCL number in Block 9, and
indicate in Block 24 that you are requesting an extension to your SCL.
Submit the completed Form BXA-748P and a statement on company
letterhead indicating:
(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
Sec. 752.10 of this part for procedures on changed circumstances).
(3) Support documentation. (i) General information. BXA will
validate all approved support documentation with the Department of
Commerce seal and date of validation.
(ii) Form BXA-752, Form BXA-752-A, and Form BXA-748P-B. With the
approved SCL, you will receive two validated copies of each approved
Form BXA-752, Statement by Consignee in Support of Special
Comprehensive License and, if applicable, Form BXA-752-A, Reexport
Territories, and Form BXA-748P-B, End-User Appendix. You must retain
one copy, and send one copy to the approved consignee. You must also
attach a letter to each approved Form BXA-752 that includes each of the
following elements:
(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 Sec. 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
Sec. 752.11(c)(13)(i) of this part, when required;
(G) A copy of the Denied Persons List currently in effect and
notification that you will send the consignee regular updates to this
list;
(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 Sec. 752.11 of this
part; and
(J) A description of any special documentation requirements for
consignees reexporting items to destinations having such requirements.
(4) Special license conditions. BXA may place special conditions on
your SCL, such as restrictions on eligible items, countries, end-uses,
end-users or activities, or a requirement that certain sales or
transfers of items under the SCL are subject to prior reporting to BXA.
Such special conditions will be listed on your SCL or in a letter from
BXA to the SCL holder. You must inform all relevant consignees of all
license conditions prior to making any shipments under the SCL.
(b) Denial of SCL applications. (1) If BXA intends to deny your SCL
application, you will be notified and have opportunity to respond
according to the procedures in Sec. 750.6 of the EAR.
(2) BXA 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 BXA-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 BXA-752-A.
(c) Return without action. BXA may determine to return the SCL
application without action. Under such circumstances, the application
and all related documents will be returned to you along with a letter
stating the reason for return of the license application, explaining
the deficiencies or additional information required for
reconsideration, or advising you to apply for a license described in
part 748 of the EAR. BXA may return your entire application or merely
documents pertaining to a specific consignee request.
Sec. 752.10 Changes to the SCL.
(a) General information. Certain changed circumstances regarding
the SCL require prior approval from BXA before you make such changes,
while others require only notification to BXA.
(b) Changes requiring prior written approval from BXA. The
following circumstances require prior written approval by BXA. Such
requests must be submitted by the SCL holder, and changes are not
effective until BXA approves the request. Upon approval of a change
described in this paragraph, BXA will return to the SCL holder a
validated copy of the request, indicating any changes that may have
been made to your request, or any special conditions that may have been
imposed.
(1) Change of SCL holder company name. You must submit to BXA Form
BXA-748P, Multipurpose Application, for any change in the name of the
SCL holder company. Complete Blocks 1, 2, 3, and 4. Mark ``Special
Comprehensive License'' in Block 5, and ``change'' in Block 8. In Block
9, include your SCL number, and briefly indicate the purpose of the
change. Enter the new information in the relevant Blocks, and complete
Block 25. The SCL holder must send a copy of the validated Form BXA-
748P to each approved consignee, and advise them to attach the copy of
[[Page 12840]]
the validated form to their validated Form BXA-752.
(2) Change in consignee name or address. You must submit to BXA
Form BXA-752, Statement by Consignee in Support of Special
Comprehensive License, when requesting a change in consignee name, or
if the consignee moves out of the country. The consignee must complete
Block 2, mark ``change an existing consignee'' in Block 3, and provide
the new consignee information in Block 4. Also complete Blocks 10 and
11.
(3) Addition of new consignees. You must submit to BXA Form BXA-752
for requests to add consignees to an SCL. Complete Form BXA-752 in
accordance with the instructions in Supplement No. 1 to this part,
marking ``Add a New Consignee'' in Block 3. Use Block 9 to describe the
proposed consignee's role in the activities authorized by the SCL. Form
BXA-752 is not required if the proposed new consignee is a foreign
government agency and the items will not be reexported. If Form BXA-752
is not required, the SCL holder may submit the request to add the
foreign government agency to the SCL on company letterhead. You must
include the proposed consignee's complete street address.
(4) Change in reexport territories. You must submit to BXA Form
BXA-752 and Form BXA-752-A to add a country to a consignee's approved
reexport territory. Upon approval of change in reexport territory, BXA
will return to the SCL holder two validated copies of Form BXA-752 and
Form BXA-752-A, Reexport Territories, along with any special conditions
that may have been imposed.
(i) Form BXA-752. Complete Block 3 by marking ``Change an Existing
Consignee''. In Block 4, enter the consignee name and consignee number.
In Block 5, enter the SCL number. In Block 9, enter ``to add a country
to the reexport territory''. Complete Blocks 10 and 11.
(ii) Form BXA-752-A. Complete Blocks 2 and 3. Mark each country
that you are adding to your reexport territory.
(5) Adding items to your SCL. The following procedures apply to
requests to add items to your SCL. Upon approval, BXA will send you a
validated Form BXA-752 and, if applicable, Form BXA-748P-A. The SCL
holder must send a copy of each validated form to all applicable
consignees and attach a copy to their Form BXA-752.
(i) Adding one item. You must submit to BXA Form BXA-748P to
request the addition of a single item to your SCL. Complete Blocks 1,
2, 3 and 4. Mark ``Special Comprehensive License'' in Block 5, and
``change'' in Block 8. Include your SCL number in Block 9 and state
either ``add ECCN'' or ``delete ECCN''. Complete items (a) and (j) in
Block 22, and Block 25.
(ii) More than one item. You must submit to BXA Form BXA-748P and
Form BXA-748P-A to request to add more than one item to your SCL.
Complete Form BXA-748P according to the instructions in paragraph
(b)(5)(i) of this section. Complete Form BXA 748P-A by including the
``Application Control Number'' (found on form BXA-748P) in Block 1.
Complete Block 21 and Block 24, if needed, to describe any special
circumstances (i.e. the new item will only be exported to specific
consignees and will not be reexported).
(6) Changes to end-users. You must submit to BXA Form BXA-752 and
Form BXA-748P-B to add end-users to consignee authorizations. Upon
approval by BXA, BXA will return to the SCL holder two validated copies
of Form BXA-752 and Form BXA-748P-B, which will include any special
conditions that may have been imposed. You must send one copy of Forms
BXA-752 and BXA-748P to the relevant consignee.
(i) Form BXA-752. On Form BXA-752, complete Block 3.B., ``Change an
Existing Consignee''. Include the consignee number in Block 4. Include
the SCL number in Block 5. In Block 9, type ``To add an End-User''.
Complete Blocks 10 and 11.
(ii) Form BXA-748P-B. On Form BXA-748P-B, include the SCL consignee
number in Block 1. Complete Block 19. Cite the end-user requirement or
condition (i.e. ``This end-user is requested in compliance with
Sec. 752.5(c)(8)(ii) of the EAR, which requires prior authorization to
reexport chemicals under the SCL''. Also list the items (by ECCN and
description) that the end-user will receive and for what purpose, if
approved by BXA.
(c) Changes that do not require prior approval from BXA. The
following changes regarding your SCL do not require prior approval from
BXA, however, such changes must be submitted on the appropriate forms
no later than 30 days after the change has occurred. BXA will validate
the forms, and return one copy to you for your records.
(1) Change of SCL holder address, export contact information, or
total value of license. You must submit to BXA Form BXA-748P,
Multipurpose Application, for any change in the SCL holder's address,
export contact information, or total value of the license. Complete
Blocks 1, 2, 3, and 4. Mark ``Special Comprehensive License'' in Block
5, and ``change'' in Block 8. In Block 9, include your SCL number, and
briefly indicate the purpose of the change. Enter the new information
in the relevant Blocks. Complete Block 25. The SCL holder must send a
copy of the validated Form BXA-748P to each approved consignee, and
advise them to attach the copy of the validated form to their validated
Form BXA-752.
(2) Deletion, suspension or revocation of consignees. You must
submit to BXA Form BXA-748P if you remove a consignee from your SCL.
Complete Blocks 1, 2, 3 and 4, mark ``Special Comprehensive License''
in Block 5, and ``change'' in Block 8. Indicate your SCL number in
Block 9, and complete Block 14. In Block 24, indicate that you are
removing a consignee(s) from your SCL, and indicate the name and
address of the consignee as it appears on the original Form BXA-752.
Also include the consignee number that was assigned when your SCL was
approved by BXA. You must notify all remaining consignees if any
consignee is no longer eligible to receive items under the SCL.
(3) Changes in ownership or control of the SCL holder or consignee.
(i) SCL holder. You must notify BXA of changes in ownership or control
by submitting to BXA Form BXA-748P. Complete Blocks 1, 2, 3 and 4, mark
``Special Comprehensive License'' in Block 5, and indicate the SCL
number in Block 9. Include the SCL holder information in Block 14, and
describe the change in Block 24, indicating the circumstances
necessitating the change (i.e., mergers), and changes in persons who
have official signing authority. Also complete Block 25.
(ii) Consignee. You must notify BXA of changes in ownership or
control of the consignee company by submitting to BXA Form BXA-752.
Complete Block 2, mark ``change an existing consignee'' in Block 3.B.,
and complete Blocks 4 and 5. In Block 9, describe the change,
indicating the circumstances necessitating the change (i.e. mergers),
and changes in persons who have official signing authority. Complete
Blocks 10 and 11.
(4) Remove reexport territories. If you remove a country from a
consignee's approved reexport territory, you must submit to BXA Form
BXA-752 and Form BXA-752-A. Upon review of the change in reexport
territory, BXA will return to the SCL holder two validated copies of
Form BXA-752 and Form BXA-752-A.
(i) Form BXA-752. Complete Block 3 by marking ``Change an Existing
Consignee''. In Block 4, enter the consignee name and consignee number.
[[Page 12841]]
In Block 5, enter the SCL number. In Block 9, enter ``to remove a
country from the reexport territory''. Complete Blocks 10 and 11.
(ii) Form BXA-752A. Complete Blocks 2 and 3. Mark each country that
you are removing from the reexport territory.
(5) Remove items from your SCL. The following procedures apply if
you remove an item from your SCL. After review of the change by BXA,
BXA will send you a validated Form BXA-752 and BXA-748P-A, if
applicable. The SCL holder must send a copy of the each validated form
to all applicable consignees and attach a copy to their BXA-752P.
(i) Removing one item. You must submit to BXA Form BXA-748P if you
remove a single item from your SCL. Complete Blocks 1, 2, 3 and 4. Mark
``Special Comprehensive License'' in Block 5, and ``change'' in Block
8. Include your SCL number in Block 9 and state ``delete ECCN''.
Complete item (a) and (j) in Block 22, and Block 25.
(ii) Removing more than one item. You must submit to BXA Form BXA-
748P and Form BXA-748P-A if you remove more than one item from your
SCL. Complete Form BXA-748P according to the instructions in paragraph
(a)(5)(i) of this section. Complete Form BXA 748P-A by including the
``Application Control Number'' (found on form BXA-748P) in Block 1, and
completing items (a) and (j) in Block 22 for each item you are removing
from your SCL.
(6) Remove end-users from your SCL. You must submit to BXA Form
BXA-752 and Form BXA-748P-B if you remove end-users from consignee
authorizations. After review by BXA, BXA will return to the SCL holder
two validated copies of Form BXA-752 and Form BXA-748P-B, which will
include any special conditions that may have been imposed. You must
send one copy of Forms BXA-752 and BXA-748P to the relevant consignee.
(i) Form BXA-752. On Form BXA-752, complete Block 3.B., ``Change an
Existing Consignee''. Include the consignee number in Block 4. Include
the SCL case number in Block 5. In Block 9, type ``To remove an end-
user''. Complete Blocks 10 and 11.
(ii) Form BXA-748P-B. On Form BXA-748P-B, include the SCL consignee
number in Block 1. Complete Block 19.
(d) Changes made by BXA. If BXA revises or adds an ECCN to the CCL,
or a country's eligibility already covered by the SCL changes, BXA will
publish the change in the Federal Register. The SCL holder is
responsible for immediately complying with any changes to the scope of
the SCL.
Sec. 752.11 Internal Control Programs.
(a) Scope--(1) Introduction. It is through Internal Control
Programs (ICPs) that the SCL holder and the consignee assure that
exports and reexports are not made contrary to the EAR. The elements of
your ICP will reflect the complexity of the activities authorized under
the SCL, the countries and items involved, and the relationship between
the SCL holder and the approved consignees.
(2) General requirements. Prior to making any exports and reexports
under an SCL, you and your consignees, when required, must implement an
ICP that is designed to ensure compliance with the SCL and the EAR.
This section provides an overview of the elements that comprise an ICP.
You may obtain from BXA at the address found in Sec. 752.17 of this
part guidelines to assist you in developing an adequate ICP. You must
submit with your application for an SCL a copy of your proposed ICP,
along with any consignee ICPs, when required, incorporating the
elements described in this section, as appropriate. BXA may require you
to modify your ICP depending upon the activities, items, and
destinations requested on your application for an SCL.
(b) Requirements. You may not make any shipments under an SCL until
you and your consignees, when appropriate, implement all the elements
of the required ICP. If there are elements that you consider
inapplicable, you must explain the reasons for this determination at
the time of application for an SCL. Existence of a properly constructed
ICP will not relieve the SCL holder of liability for improper use or
failure to comply with the requirements of the EAR.
(c) Elements of an ICP. Following is a list of ICP elements. The
specific elements that should be included in your ICP depend upon the
complexity of the activities authorized under your SCL, the countries
and items involved, and the relationship between the SCL holder and the
approved consignees.
(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 the Denied Persons List (Supplement No. 2
to part 764 of the EAR) and other regulatory materials necessary to
ensure compliance;
(4) A system for screening items, training and servicing
transactions against Denied Persons List (Supplement No. 2 to part 764
of the EAR) and any relevant updates to the Denied Persons List;
(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
Secs. 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 BXA 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) Your customer is little known (financial information
unavailable from normal commercial sources and corporate principals
unknown by trade sources);
(B) Your customer does not wish to use commonly available
installation and maintenance services;
(C) Your customer is reluctant to provide end-use and end-user
information;
(D) Your customer requests atypical payment terms or currencies;
[[Page 12842]]
(E) Customer order amounts, packaging, or delivery routing
requirements do not correspond with normal industry practice.
(F) The performance/design characteristics of the items ordered are
incompatible with customer's line of business or stated end-use;
(G) Your customer provides only a ``P.O. Box'' address or has
facilities that appear inappropriate for the items ordered;
(H) Your 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); and
(I) Your 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
Sec. 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 Secs. 742.2 and 744.4 of the EAR;
Sec. 752.12 Recordkeeping requirements.
(a) SCL holder and consignees. In addition to the recordkeeping
requirements of part 762 of the EAR, the SCL holder and each consignee
must maintain copies of manuals, guidelines, policy statements,
internal audit procedures, reports, and other documents making up the
ICP of each party included under an SCL. Also, all parties must
maintain copies of the most current Denied Persons List (see Supplement
No. 2 to part 764 of the EAR) as well as all updates, and all other
regulatory materials necessary to ensure compliance with the SCL, such
as relevant changes to the EAR, product classification, additions,
deletions, or other administrative changes to the SCL, transmittal
letters and consignee's confirmations of receipt of these materials.
(b) Consignees. All consignees must retain all records of the types
of activities identified in Sec. 752.2(a)(3) of this part. Records on
such sales or reexports must include the following:
(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.
Sec. 752.13 Inspection of records.
(a) Availability of records. You and all consignees must make
available all of the records required by Sec. 752.12 of this part and
Sec. 762.2 of the EAR for inspection, upon request, by BXA or by any
other representative of the U.S. Government, in accordance with part
762 of the EAR.
(b) Relationship of foreign laws. Foreign law may prohibit
inspection of records by a U.S. Government representative in the
foreign country where the records are located. In that event, the
consignee must submit with the required copies of Form BXA-752 an
alternative arrangement for BXA to review consignee activities and
determine whether or not the consignee has complied with U.S. export
control laws and regulations, which must be approved by BXA.
(c) Failure to comply. Parties failing to comply with requests to
inspect documents may be subject to orders denying export privileges
described in part 764 of the EAR or to the administrative actions
described in part 766 of the EAR.
Sec. 752.14 System reviews.
(a) Post-license system reviews. BXA may conduct system reviews of
the SCL holder as well as any consignee. Generally, BXA will give
reasonable notice to SCL holders and consignees in advance of a system
review. The review will involve interviews with company officials, the
inspection of records, and the review of ICPs. BXA may conduct special
unannounced system reviews if BXA has reason to believe an SCL holder
or consignee has improperly used or has failed to comply with the SCL.
(b) Other reviews. BXA may require an SCL holder or consignee to
submit to its office a list of all sales made under the SCL during a
specified time-frame. Also, BXA may request from any consignee a list
of transactions during a specified period involving direct shipments of
items received under SCLs to customers of other consignees and sales to
customers in reexport territories authorized by BXA on the consignee's
validated Form BXA-752.
Sec. 752.15 Export clearance.
(a) Shipper's Export Declaration (SED). The SED covering an export
made under an SCL must be prepared in accordance with standard
instructions described in Sec. 758.3 of the EAR. If the SCL holder has
implemented the Bureau of Census Monthly Reporting System, the SCL
holder must comply with the Census requirements.
(1) Item descriptions. Item descriptions on the SED must indicate
specifically the ECCN and item description conforming to the applicable
CCL description and incorporating any additional information where
required by Schedule B; (e.g., type, size, name of specific item,
etc.).
(2) Value of shipments. There is no value limitation on shipments
under the SCL; however, you must indicate the value of each shipment on
the SED.
(3) SCL number. The SED must include the SCL number followed by a
blank space, and then the consignee number identifying the SCL's
approved consignee to whom the shipment is authorized.
(b) Destination control statement. The SCL holder must enter a
destination control statement on all copies of the bill of lading or
air way-bill, and the commercial invoice covering exports under the
SCL, in accordance with the provisions of Sec. 758.6 of the EAR. Use of
a destination control statement does not preclude the consignee from
reexporting to any of the SCL holder's other approved consignees or to
other countries for which specific prior approval has been received
from BXA. In such instances, reexport is not contrary to U.S. law and,
therefore, is not prohibited. Another destination control statement may
be required or approved by BXA on a case-by-case basis.
Sec. 752.16 Administrative actions.
(a)(1) If BXA 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, BXA 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;
[[Page 12843]]
(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 BXA;
(vi) Restrict parties to whom consignees may sell under the SCL;
and
(vii) Require that an SCL holder provide an audit report to BXA of
selected consignees or overseas operations.
(2) Whenever necessary to protect the national interest of the
U.S., BXA 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) Appeals. Actions taken pursuant to paragraph (a) of this
section may be appealed under the provisions of part 756 of the EAR.
Sec. 752.17 BXA mailing addresses.
You should use the following addresses when submitting to BXA
applications, reports, documentation, or other requests required in
this part 752: Bureau of Export Administration, 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
Export Administration, 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.
Supplement No. 1 to Part 752--Instructions for Completing Form BXA-748P
Multipurpose Application for Requests for Special Comprehensive
Licenses
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
choose 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.
Block 5: Type of Application. Enter an ``X'' in the Special
Comprehensive License box.
Block 6: Documents Submitted with Application. Leave blank.
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 by
previous special license holders. If you have had a special license
in the past, enter that license number. A new SCL number will be
assigned upon approval of your SCL application.
Blocks 10, 11, 12, and 13: Leave blank.
Block 14: Applicant. Complete according to the instructions in
Supplement No. 1 to part 748.
Block 15: Other Party Authorized to Receive License. Complete,
if applicable, according to the instructions in Supplement no. 1 to
part 748.
Blocks 16 and 17: Leave blank.
Block 18: Ultimate Consignee. Leave blank.
Blocks 19, 20, and 21: Leave blank.
Block 22: Leave (a)-(j) blank.
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 as required by part 752. Do not include
information concerning block 22 in this space.
Block 25: Signature. Complete according to the instructions in
Supplement No. 1 to part 748.
Supplement No. 2 to Part 752--Instructions for Completing Form BXA-
748P-A, ``Item Annex''
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 BXA-748P.
Block 2: Subtotal. Leave blank.
Block 21: Continuation of Specific End-Use Information. Leave
blank. 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 complete this block if you intend to export or
reexport a digital computer. Instructions on calculating the CTP 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''.
Supplement No. 3 to Part 752--Instructions for Completing Form BXA-752
``Statement by Consignee in Support of Special Comprehensive License''
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 the Form BXA-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 P.O. Box alone is NOT acceptable but may
be included in Block 4 for mailing purposes, along with a complete
address. If records required by Sec. 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
BXA-752 will be returned without action.
Block 5: U.S. Exporter Information. Enter the complete address
of the U.S. exporter. Leave the SCL Case No. box blank.
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 BXA-748P-A 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 Relationship.
(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 (e.g., manufacturer, manufacturer/ distributor,
assembler/reseller, distributor, sales agent, warehouse, service
facility).
(b) Indicate the relationship between your company and the
applicant company (e.g., wholly owned subsidiary, independent
company, joint venture company, controlled-in-fact affiliate of
another consignee that is approved on an SCL).
(c) Enter number of years of relationship between your company
and the applicant company.
(d) Enter the estimated dollar volume of sales or other
transactions with the SCL holder during the last twelve months
period before submission of the application for SCL.
(e) Enter an estimated dollar volume proposed under this
application for the validity period of the SCL.
Block 8: Disposition or Use of Items.
(a) Complete this Block if your company is requesting
involvement in end-user activities that involve importing items for
the company's own use (e.g., as capital equipment).
(b) Complete this Block if your company is requesting
involvement in end-user activities that incorporate items received
under the
[[Page 12844]]
SCL into a new end-product that result 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 more specifically and
state how and to what extent the U.S.-origin items will be used.
Complete and attach Form BXA-752-A, Reexport Territories.
(c) Complete this Block if your company is requesting
authorization to reexport items for service and/or repair. Complete
and attach Form BXA-752-A. If you plan to reexport to end-users that
require prior approval by BXA, also complete and attach Form BXA-
748P-B, End-User Appendix.
(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 BXA, complete and attach Form BXA-748P-B, End-User
Appendix.
(e) Complete this Block if your company plans to reexport.
Complete and attach Form BXA-752-A. If you plan to reexport to end-
users that require prior approval by BXA, also complete and attach
Form BXA-748P-B, End-User Appendix.
(f) This item should be completed for ``other'' activities that
are not defined in Blocks 8(a) through (e). Describe the proposed
activities fully in a letter attached to this Form, and complete and
attach Form BXA-752-A, indicating countries to which the products
derived from these activities are proposed export.
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 BXA. Indicate the
license and consignee numbers.
Block 10: Signature of Official of Ultimate Consignee. Include
an original signature. The authority to sign form BXA-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 the signature. All copies
must be co-signed by the applicant in Block 11 and submitted with
the application to BXA.
Supplement No. 4 to Part 752--Instructions for Completing Form BXA-752-
A Reexport Territories
All information must be legibly typed within the lines for each
block or box.
Block 1: Application Control No. Insert the application control
number from the relevant form BXA-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 BXA-752 Question No. Mark an ``X'' in
the box next to each country you want to select. Countries that are
not eligible for the SCL are not included on this form. If the
country that is not listed on this form becomes eligible to receive
items under the SCL, you may request that country by marking an
``X'' in the ``other'' box and including the country name.
Supplement No. 5 to Part 752--Instructions for Completing Form BXA-
748P-B End-User Appendix
All information must be legibly typed within the lines for each
block or box.
Block 1: Application Control No. Insert the application control
number from the relevant Form BXA-748P.
Block 19: End-user. Enter each end-user's complete name, street
address, city, country, postal code and telephone or facsimile
number. P.O. Boxes are not acceptable.
Block 21: Continuation of Specific End-Use Information. Include
any additional information that may help BXA 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
of the EAR.
PART 754--SHORT SUPPLY CONTROLS
Sec.
754.1 Introduction.
754.2 Crude oil.
754.3 Petroleum products not including crude oil.
754.4 Unprocessed western red cedar.
754.5 Horses for export by sea.
754.6 Registration of U.S. agricultural commodities for exemption
from short supply limitations on export.
754.7 Petitions for the imposition of monitoring or controls on
recyclable metallic materials; Public hearings.
Supplement No. 1 to Part 754--Petroleum and Petroleum Products
Supplement No. 2 to Part 754--Unprocessed Western Red Cedar
Supplement No. 3 to Part 754--Statutory Provisions Dealing With Exports
of Crude Oil
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); Sec. 201, Pub. L. 104-58, 109
Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C. 6212; 43
U.S.C. 1354; 46 U.S.C. app. 466c; E.O. 12924, 3 CFR, 1994 Comp., p.
917; Notice of August 15, 1995 (60 FR 42767, August 17, 1995).
Sec. 754.1 Introduction.
(a) Scope. In this part, references to the Export Administration
Regulations (EAR) are references to 15 CFR chapter VII, subchapter C.
This part implements the provisions of section 7, ``Short Supply
Controls,'' of the Export Administration Act (EAA) and similar
provisions in other laws that are not based on national security and
foreign policy grounds.
(b) Contents. Specifically, this part deals with the following:
(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 Sec. 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 Sec. 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
Sec. 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
Sec. 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 Sec. 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 Sec. 754.7 of this part).
[[Page 12845]]
(c) Reexports. Reexports of items controlled by this part require a
license only if such a requirement is specifically set forth in this
part or is set forth on the license authorizing the export from the
United States.
(d) Additional requirements for embargoed destinations. For exports
involving embargoed destinations, you must satisfy the requirements of
this part and also of part 746 of the EAR (Embargoes and Other Special
Controls).
Sec. 754.2 Crude oil.
(a) License requirement. As indicated by the SS notation in the
``License Requirements'' section of ECCN 1C981 on the CCL (Supplement
No. 1 to part 774 of the EAR), a license is required for the export of
crude oil to all destinations, including Canada. See paragraph (h) of
this section for a License Exception permitting the export of certain
oil from the Strategic Petroleum Reserves and paragraph (i) of this
section for a License Exception for certain shipments of samples.
``Crude oil'' is defined as a mixture of hydrocarbons that existed in
liquid phase in underground reservoirs and remains liquid at
atmospheric pressure after passing through surface separating
facilities and which has not been processed through a crude oil
distillation tower. Included are reconstituted crude petroleum, and
lease condensate and liquid hydrocarbons produced from tar sands,
gilsonite, and oil shale. Drip gases are also included, but topped
crude oil, residual oil, and other finished and unfinished oils are
excluded.
(b) License policy. (1) BXA will approve applications to export
crude oil for the following kinds of transactions if BXA determines
that the export is consistent with the specific requirements pertinent
to that export:
(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 BXA, 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) BXA 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 BXA determines
that the proposed export is consistent with the national interest and
the purposes of the Energy Policy and Conservation Act (EPCA). Although
BXA will consider all applications for approval, generally, the
following kinds of transactions will be among those that BXA 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) Additional statutory controls. (1) The following statutes
provide controls on the export of domestically produced crude oil based
on its place of origin or mode of transport. If such other statutory
controls apply, an export may only be approved if the President makes
the findings required by the applicable law.
(i) Section 201 of Public Law 104-58, entitled ``Exports of Alaskan
North Slope Oil,'' provides for exports of domestically produced crude
oil transported by pipeline over rights-of-way granted pursuant to
section 203 of the Trans-Alaska Pipeline Authorization Act (43 U.S.C.
1652) (``TAPS crude oil'').
(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) Exports from Alaska's Cook Inlet. The licensing policy is to
approve applications for exports of crude oil that was derived from the
state-owned submerged lands of Alaska's Cook Inlet and has not been, or
will not be, transported by a pipeline over a federal right-of-way
subject to the MLA or the Trans-Alaska Pipeline Authorization
Act.1
\1\ On November 6, 1985, the Secretary of Commerce determined
that the export of crude oil derived from State waters in Alaska's
Cook Inlet is consistent with the national interest and the purposes
of the Energy Policy and Conservation Act.
---------------------------------------------------------------------------
(e) Exports to Canada for consumption or use therein. (1) Except
for TAPS crude oil, the licensing policy is to approve applications for
exports of crude oil to Canada for consumption or use therein.
(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 Export Administration will determine, in
consultation with the Maritime
[[Page 12846]]
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 BXA 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 BXA 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 validity period of none of the affected licenses has
expired.
(vii) BXA 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) Refining or exchange of Strategic Petroleum Reserve Oil. (1)
Exports of crude oil withdrawn from the Strategic Petroleum Reserve
(SPR) will be approved if BXA, in consultation with the Department of
Energy, determines that such exports will directly result in the
importation into the United States of refined petroleum products that
are needed in the United States and that otherwise would not be
available for importation without the export of the crude oil from the
SPR.
(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) BXA will approve license applications subject to the following
conditions:
(i) You must provide BXA 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 BXA 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) Exports of certain California crude oil. The export of
California heavy crude oil having a gravity of 20.0 degrees API or
lower, at an average volume not to exceed 25 MB/D, will be authorized
as follows.
(1) Applicants must submit their applications on Form BXA-748 to
the following address: Office of Exporter Services, ATTN: Short Supply
Program--Petroleum, Bureau of Export Administration, 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 BXA 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 by documentary evidence of such an order (e.g., a letter of
intent).
(5) BXA will adhere to the following procedures for licensing
exports of California heavy crude oil:
(i) BXA will issue licenses for approved applications in the order
in which the applications are received (date-time stamped upon receipt
by BXA), 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) BXA will approve only one application per month for each
company and its affiliates.
(iii) BXA 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 BXA 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) BXA will approve applications contingent upon the licensee
providing documentation meeting the requirements of both
paragraphs(g)(5)(iv)(A) and (B) of this
[[Page 12847]]
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:
(1) An accepted contract or bill of sale for the quantity of
barrels stated in the application; or
(2) A contract to purchase the quantity of barrels stated in the
application, which may be contingent upon issuance of an export license
to the applicant.
(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) BXA 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 BXA
by January 15 of the carry-forward year.
(vi) BXA 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) BXA 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 BXA with a certified statement confirming the date and
quantity of California heavy crude oil exported.
(ii) Must submit to BXA, 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 BXA.
(7) BXA will allow a 10 percent tolerance on the unshipped balance
based upon the volume of barrels it has authorized. BXA will allow a 25
percent shipping tolerance on the total dollar value of the license.
See Sec. 750.11 of the EAR for an explanation of shipping tolerances.
(h) License Exception for certain shipments from the Strategic
Petroleum Reserves (SPR). Subject to the requirements set forth in this
paragraph, License Exception SPR may be used to export without a
license foreign origin crude oil imported and owned by a foreign
government or its representative which is imported for storage in, and
stored in, the United States Strategic Petroleum Reserves pursuant to
an appropriate agreement with the U.S. Government or an agency thereof.
If such foreign origin oil is commingled with other oil in the SPR,
such export is authorized under License Exception SPR only if the crude
oil being exported is of the same quantity and of comparable quality as
the foreign origin crude oil that was imported for storage in the SPR
and the Department of Energy certifies this fact to BXA.
(1) The requirements and restrictions described in Secs. 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) the
letter code ``SS-SPR.''
(i) License Exception for certain sample shipments. Subject to the
requirements set forth in this paragraph, License Exception SS-SAMPLE
may be used to export crude oil for analytic and testing purposes.
(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 Secs. 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) the
letter code ``SS-SAMPLE''.
Sec. 754.3 Petroleum products not including crude oil.
(a) License requirement. As indicated by the letters ``SS'' in the
``Reason for Control'' paragraph in the ``License Requirements''
section of ECCNs 1C980, 1C982, 1C983, and 1C984 on the CCL (Supplement
No. 1 to part 774 of the EAR), a license is required to all
destinations, including Canada, for the export of petroleum products,
excluding 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.
(b) License policy. (1) Applications for the export of petroleum
products listed in Supplement No. 1 to this part that were produced or
derived from the Naval Petroleum Reserves, or that became available for
export as a result of an exchange for a Naval Petroleum Reserves
produced or derived commodity, other than crude oil, will be denied,
unless the President makes a finding required by the Naval Petroleum
Reserves Production Act (10 U.S.C. 7430).
(2) Applications that involve temporary exports or exchanges
excepted from that Act will be approved.
Sec. 754.4 Unprocessed western red cedar.
(a) License requirement. As indicated by the letters ``SS'' in the
``Reason for Control'' paragraph in the ``License Requirements''
section of ECCN 1C988 on the CCL (Supplement No. 1 to part 774 of the
EAR), a license is required to all destinations, including Canada, for
the export of unprocessed western red cedar covered 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). See paragraph (c) of this section for License Exceptions for
timber harvested from public lands in the State of Alaska, private
lands, or Indian lands, and see paragraph (d) of this section for
relevant definitions.
(b) Licensing policy. (1) BXA will generally deny applications for
licenses to export unprocessed western red cedar harvested from Federal
or State lands under harvest contracts entered into after September 30,
1979.
(2) BXA 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) BXA 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. See paragraph
(c) of this section for the availability of a License Exception.
(c) License Exception for western red cedar (WRC). (1) Subject to
the requirements described in paragraph (c) of this section, License
Exception WRC may be used to export without a license unprocessed
western red cedar timber harvested from Federal, State and other public
lands in Alaska, all private lands,
[[Page 12848]]
and, lands held in trust for recognized Indian tribes by Federal or
State agencies.
(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 Secs. 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) the
letter code ``SS-WRC''.
(d) License Applications. (1) Applicants requesting to export
unprocessed western red cedar must submit a properly completed Form
BXA-748P, Multipurpose License Form, other documents as may be required
by BXA, and a signed statement from an authorized representative of the
exporter, reading as follows:
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,
----------------------------------------------------------------------
(Signature)
----------------------------------------------------------------------
(Date)
(2) For Items [16] and [18] on Form BXA-748P, ``Various'' may be
entered when there is more than one purchaser or ultimate consignee.
(3) For each Form BXA-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.
(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
Sec. 750.11 of the EAR for an explanation of shipping tolerances.
(e) Definitions. When used in this section, the following terms
have the meaning indicated:
(1) Unprocessed western red cedar means western red cedar (thuja
plicata) timber, logs, cants, flitches, and processed lumber containing
wane on one or more sides, as defined in ECCN 1C988, that has not been
processed into:
(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) Federal and State lands means Federal and State lands,
excluding lands in the State of Alaska and lands held in trust by any
Federal or State official or agency for a recognized Indian tribe or
for any member of such tribe.
(3) Contract harvester means any person who, on October 1, 1979,
had an outstanding contractual commitment to harvest western red cedar
timber from State and Federal lands and who can show by previous
business practice or other means that the contractual commitment was
made with the intent of exporting or selling for export in unprocessed
form all or part of the commodities to be harvested.
(4) Producer means any person engaged in a process that transforms
an unprocessed western red cedar commodity (e.g., western red cedar
timber) into another unprocessed western red cedar commodity (e.g.,
cants) primarily through a saw mill.
Sec. 754.5 Horses for export by sea.
(a) License requirement. As indicated by the letters ``SS'' in the
``Reason for Control'' paragraph of the ``License Requirements''
section of ECCN 0A980 on the CCL (Supplement No. 1 to part 774 of the
EAR) a license is required for the export of horses exported by sea to
all destinations, including Canada.
(b) License policy. (1) License applications for the export of
horses by sea for the purposes of slaughter will be denied.
(2) Other license applications will be approved if BXA, 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 BXA-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.
Sec. 754.6 Registration of U.S. agricultural commodities for exemption
from short supply limitations on export.
(a) Scope. Under the provisions of section 7(g) of the Export
Administration Act of 1979 (EAA), agricultural commodities of U.S.
origin purchased by or for use in a foreign country and stored in the
United States for export at a later date may be registered with BXA for
exemption from any quantitative limitations on export that may
subsequently be imposed under section 7 of the EAA for reasons of short
supply.
(b) Applications for registration. Applications to register
agricultural commodities must be submitted by a person or firm subject
to the jurisdiction of the United States who is acting as a duly
authorized agent for the foreign purchaser.
(c) Mailing address. Submit applications pursuant to the provisions
of section 7(g) of the EAA to: Bureau of Export Administration, U.S.
Department
[[Page 12849]]
of Commerce, P.O. Box 273, Washington, D.C. 20230.
Sec. 754.7 Petitions for the imposition of monitoring or controls on
recyclable metallic materials; Public hearings.
(a) Scope. Section 7(c) of the Export Administration Act of 1979
(EAA) provides for the filing and review of petitions seeking the
imposition of monitoring or controls on recyclable metallic materials.
(b) Eligibility for filing petitions. Any entity, including a trade
association, firm or certified or recognized union or group of workers,
which is representative of an industry or a substantial segment of an
industry which processes metallic materials capable of being recycled
with respect to which an increase in domestic prices or a domestic
shortage, either of which results from increased exports, has or may
have a significant adverse effect on the national economy or any sector
thereof, may submit a written petition to BXA requesting the monitoring
of exports, or the imposition of export controls, or both, with respect
to such materials.
(c) Public hearings. The petitioner may also request a public
hearing. Public hearings may also be requested by an entity, including
a trade association, firm, or certified or recognized union or group of
workers, which is representative of an industry or a substantial
segment of an industry which processes, produces or exports the
metallic materials which are the subject of a petition.
(d) Mailing address. Submit petitions pursuant to section 7(c) of
the EAA to: Bureau of Export Administration, U.S. Department of
Commerce, P.O. Box 273, Washington, D.C. 20230.
Supplement No. 1 to Part 754--Petroleum and Petroleum Products
This Supplement provides relevant Schedule B numbers and a
commodity description of the items controlled by ECCNs 1C980, 1C981,
1C982, 1C983, and 1C984.
------------------------------------------------------------------------
Schedule B No. Commodity description 1
------------------------------------------------------------------------
Crude Oil
------------------------------------------------------------------------
2709.0710.................... Crude petroleum (including reconstituted
crude petroleum), tar sands and crude
shale oil.
2710.0710.................... Petroleum, partly refined for further
refining.
------------------------------------------------------------------------
Petroleum Products
------------------------------------------------------------------------
2804.29.0010................. Helium.
2804.10.0000................. Hydrogen.
2814.20.0000................. Ammonia, aqueous.
2811.21.0000................. Carbon dioxide and carbon monoxide.
2710.00.0550................. Distillate fuel oils, having a Saybolt
Universal viscosity at 100 deg.F. of
less than 45 seconds.
2710.00.1007................. Distillate fuel oils (No. 4 type) having
a Saybolt Universal viscosity at 100
deg.F. of 45 seconds or more, but not
more than 125 seconds.
2710.00.1050................. Fuel oils, having a Saybolt Universal
viscosity at 100 deg.F. of more than
125 seconds.
2711.11.0000................. Natural gas, methane and mixtures thereof
(including liquefied natural gas and
synthetic or substitute natural gas).2
2711.14.0000................. Ethane with a minimum purity of 95 liquid
volume percent.
2711.12.0000................. Propane with a minimum purity of 90
liquid volume percent.
2711.13.0000................. Butane with a minimum purity of 90 liquid
volume percent.
2711.19.0000................. Other natural gases (including mixtures),
n.s.p.f. and manufactured gas.
2710.00.1510................. Gasoline, motor fuel (including
aviation).
2710.00.1520................. Jet fuel, naphtha-type.
2710.00.1530................. Jet fuel, kerosene-type.
2710.00.1550................. Other motor fuel (including tractor fuel
and stationary turbine fuel).
2710.00.2000................. Kerosene derived from petroleum, shale
oil, natural gas, or combinations
thereof (except motor fuel).
2710.00.2500................. Naphthas derived from petroleum, shale
oil, natural gas, or combinations
thereof (except motor fuel).
2710.00.5030................. Mineral oil of medicinal grade derived
from petroleum, shale oil or both.
3819.00.0000................. Hydraulic fluids, including automatic
transmission fluids.
2710.00.3010................. Aviation engine lubricating oil, except
jet engine lubricating oil.
2710.00.3020................. Jet engine lubricating oil 475.4520
Automotive, diesel, and marine engine
lubricating oil.
2710.00.3030................. Turbine lubricating oil, including
marine.
2710.00.3040................. Automotive gear oils.
2710.00.3050................. Steam cylinder oils.
2710.00.5045................. Insulating or transformer oils.
2710.00.3070................. Quenching or cutting oils.
2710.00.3080................. Lubricating oils, n.s.p.f., except white
mineral oil.
2710.00.3700................. Greases.
2710.00...................... Carbon black feedstock oil.
2712.10.0000................. Petroleum jelly and petrolatum, all
grades.
2710.00.5040................. White mineral oil, except medicinal
grade.
2710.00.5060................. Other non-lubricating and non-fuel
petroleum oils, n.s.p.f.
2814.10.0000................. Ammonia, anhydrous.
2712.20.0000................. Paraffin wax, crystalline, fully refined.
2712.90.0000................. Paraffin wax, crystalline, except fully
refined.
2712.90.0000................. Paraffin wax, all others (including
microcrystalline wax).
2517.30.0000................. Paving mixtures, bituminous, based on
asphalt and petroleum.
2713.12.0000................. Petroleum coke, calcined.
2714......................... Petroleum asphalt.
[[Page 12850]]
2713.11.0000................. Petroleum coke, except calcined.
------------------------------------------------------------------------
1 The commodity descriptions provided in this Supplement for the most
part reflect those found in the U.S. Department of Commerce, Bureau of
the Census, (1990 Edition) Statistical Classification of Domestic and
Foreign Commodities Exported from the United States (1990 Ed., as
revised through Jan. 1994). In some instances the descriptions are
expanded or modified to ensure proper identification of products
subject to export restriction. The descriptions in this Supplement,
rather than Schedule B Number, determine the commodity included in the
definition of ``Petroleum'' under the Naval Petroleum Reserves
Production Act.
2 Natural gas and liquefied natural gas (LNG), and synthetic natural gas
commingled with natural gas (Schedule B Nos. 2711.11.0000,
2711.14.0000, and 2711.19.0000) require export authorization from the
U.S. Department of Energy.
Supplement No. 2 to Part 754--Unprocessed Western Red Cedar
This Supplement provides relevant Schedule B numbers and a
commodity description of the items controlled by ECCN 1C988. The
----------------------------------------------------------------------------------------------------------------
Schedule B No. 1 1 Commodity description Unit of quantity 2
----------------------------------------------------------------------------------------------------------------
200.3516................................. Western red cedar (Thuja plicata) logs and MBF
timber.
202.2820................................. Western red cedar lumber; rough, containing MBF
wane.
202.2840................................. Western red cedar lumber; dressed or worked, MBF
containing wane.
----------------------------------------------------------------------------------------------------------------
1 Schedule B Numbers are provided only as a guide to proper completion of the Shipper's Export Declaration, Form
No. 7525 V.
2 For export licensing purposes, report commodities on Form BXA-748P in units of quantity indicated.
Supplement No. 3 to Part 754--Statutory Provisions Dealing With Exports
of Crude Oil
[The statutory material published in this Supplement is for the
information of the reader only. See the U.S. Code for the official
text of this material.]
Public Law 104-58
SEC. 201. EXPORTS OF ALASKAN NORTH SLOPE OIL.
Section 28 of the Mineral Leasing Act (30 U.S.C. 185(s)) is
amended by amending subsection(s) to read as follows:
``EXPORTS OF ALASKAN NORTH SLOPE OIL
(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 to a country pursuant to the
International Emergency Oil Sharing Plan of the International Energy
Agency, any 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) shall, when exported, be transported by a
vessel documented under the laws of the United States and owned by a
citizen of the United States (as determined in accordance with
section 2 of the Shipping Act, 1916 (46 U.S.C. App. 802)).
(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.
MINERAL LANDS LEASING ACT
30 U.S.C. 185(u)
Limitations on Export
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: Provided, That
the President shall submit reports to the Congress containing
findings made under
[[Page 12851]]
this section, and after the date of receipt of such report Congress
shall have a period of sixty calendar days, thirty days of which
Congress must have been in session, to consider whether exports
under the terms of this section are in the national interest. If the
Congress within this time period passes a concurrent resolution of
disapproval stating disagreement with the President's finding
concerning the national interest, further exports made pursuant to
the aforementioned Presidential finding shall cease.
NAVAL PETROLEUM RESERVES PRODUCTION ACT
10 Sec. 7430(e)
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.
OUTER CONTINENTAL SHELF LANDS ACT
43 U.S.C. 1354
(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 the Export Administration Act of 1969, referred to
in paragraphs (a) and (b) of the Supplement, terminated on September
30, 1979, pursuant to the terms of that Act.
(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.
PART 756--APPEALS
Sec.
756.1 Introduction.
756.2 Appeal from an administrative action.
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 756.1 Introduction.
(a) Scope. This part 756 describes the procedures applicable to
appeals from administrative actions taken under the Export
Administration Act (EAA) or the Export Administration Regulations
(EAR). (In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C). Any person directly and adversely affected
by an administrative action taken by the Bureau of Export
Administration (BXA) may appeal to the Under Secretary for
reconsideration of that administration action. The following types of
administrative actions are not subject to the appeals procedures
described in this part 756:
(1) Issuance, amendment, revocation, or appeal of a regulation.
(These requests may be submitted to BXA at any time.)
(2) Denial or probation orders, civil penalties, sanctions, or
other actions under parts 764 and 766 of the EAR.
(b) Definitions. Reserved.
Sec. 756.2 Appeal from an administrative action.
(a) Review and appeal officials. The Under Secretary may delegate
to the Deputy Under Secretary for Export Administration or to another
BXA official the authority to review and decide the appeal. In
addition, the Under Secretary may designate any BXA official to be an
appeals coordinator to assist in the review and processing of an appeal
under this part. The responsibilities of an appeals coordinator may
include presiding over informal hearings.
(b) Appeal procedures--(1) Filing. An appeal under this part must
be received by the Under Secretary for Export Administration, Bureau of
Export Administration, U.S. Department of Commerce, Room H-3886C, 14th
Street and Pennsylvania Avenue, N.W., Washington, DC 20230, not later
than 45 days after the date appearing on the written notice of
administrative action.
(2) Content of appeal. The appeal must include a full written
statement in support of appellant's position. The appeal must include a
precise statement of why the appellant believes the administrative
action has a direct and adverse effect and should be reversed or
modified. The Under Secretary may request additional information that
would be helpful in resolving the appeal, and may accept additional
submissions. The Under Secretary will not ordinarily accept any
submission filed more than 30 days after the filing of the appeal or of
any requested submission.
(3) Request for informal hearing. In addition to the written
statement submitted in support of an appeal, an appellant may request,
in writing, at the time an appeal is filed, an opportunity for an
informal hearing. The Under Secretary may grant or deny a request for
an informal hearing. Any hearings will be held in the District of
Columbia unless the Under Secretary determines, based upon good cause
shown, that another location would be better.
(4) Informal hearing procedures. (i) Presentations. The Under
Secretary shall provide an opportunity for the appellant to make an
oral presentation based on the materials previously submitted by the
appellant or made available by the Department in connection with the
administrative action. The Under Secretary may require that any facts
in controversy be covered by an affidavit or testimony given under oath
or affirmation.
(ii) Evidence. The rules of evidence prevailing in courts of law do
not apply, and all evidentiary material deemed by the Under Secretary
to be relevant and material to the proceeding, and not unduly
repetitious, will be received and given appropriate weight.
(iii) Procedural questions. The Under Secretary has the authority
to limit the number of people attending the hearing, to impose any time
or other limitations deemed reasonable, and to determine all procedural
questions.
(iv) Transcript. A transcript of an informal hearing shall not be
made,
[[Page 12852]]
unless the Under Secretary determines that the national interest or
other good cause warrants it, or the appellant requests a transcript.
If the appellant requests a transcript, the appellant will be
responsible for paying all expenses related to production of the
transcript.
(v) Report. When the Under Secretary designates another BXA
official to conduct an informal hearing, that official will submit a
written report containing a summary of the hearing and recommended
action to the Under Secretary.
(c) DecisionsT1(1)--Determination of appeals. In addition to the
documents specifically submitted in connection with the appeal, the
Under Secretary shall consider any recommendations, reports, or
relevant documents available to BXA in determining the appeal, but
shall not be bound by any such recommendation, nor prevented from
considering any other information, or consulting with any other person
or groups, in making a determination. The Under Secretary may adopt any
other procedures deemed necessary and reasonable for considering an
appeal. The Under Secretary shall decide an appeal within a reasonable
time after receipt of the appeal. The decision shall be issued to the
appellant in writing and contain a statement of the reasons for the
action.
(2) Effect of the determination. The decision of the Under
Secretary shall be final.
(d) Effect of appeal. Acceptance and consideration of an appeal
shall not affect any administrative action, pending or in effect,
unless the Under Secretary, upon request by the appellant and with
opportunity for response, grants a stay.
PART 758--EXPORT CLEARANCE REQUIREMENTS
Sec.
758.1 Export clearance requirements.
758.2 Use of export license.
758.3 Shipper's Export Declaration (SED).
758.4 Conformity of documents for shipments under export licenses.
758.5 General destination control requirements.
758.6 Destination control statement.
758.7 Authority of the Office of Export Enforcement, the Bureau of
Export Administration, Customs offices and Postmasters in clearing
shipments.
758.8 Return or unloading of cargo at direction of BXA, the Office
of Export Enforcement or Customs Service.
758.9 Other applicable laws and regulations.
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 758.1 Export clearance requirements.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C.
(a) Responsibility of licensee, exporter and agent. (1) If you are
issued a BXA license, or you rely on a License Exception described in
part 740 of the EAR, you are responsible for the proper use of that
license or License Exception and for the performance of all of its
terms and conditions.
(2) If you export without either a license issued by BXA or a
License Exception, you are responsible for determining that the
transaction is outside the scope of the EAR or the export is designated
as ``No License Required'' as described in paragraph (a)(3) of this
section.
(3)(i) ``No License Required''. Items that are listed on the
Commerce Control List (CCL) (Supplement No. 1 to part 774 of the EAR)
but that do not require a license by reason of the Country Chart
contained in Supplement 1 to part 738 of the EAR, and items designated
EAR99 (See Sec. 734.3(c) of the EAR entitled ``Scope of the EAR'') must
be designated as ``NLR'', or ``no license required'', on your shipping
documents in accordance with the provisions of this part.
(ii) NLR notation. Entering the symbol NLR is a representation to
the U.S. Government that the items being exported are listed on the CCL
but do not require a license by reason of the Country Chart or that
they are within the scope of EAR99 (See Sec. 734.3(c) of the EAR
entitled ``Scope of the EAR''); that they do not require a license
under General Prohibitions One (Exports and Reexports), Two (Parts and
Components Reexports), or Three (Foreign-produced Direct Product
Reexports); that General Prohibitions Four through Ten do not apply to
the given export, reexport, or other activity; and that the items are
subject to the EAR.
(4) License Exception symbol. Entering a License Exception symbol
on an export control document is a representation to the U.S.
Government that the transaction meets all of the terms and conditions
of the License Exception cited. (See part 740 of the EAR for details
regarding License Exceptions.)
(5) Software and technology not subject to the EAR. If you are
exporting software or technology that is outside the scope of the EAR
as described in Secs. 734.7 through 734.11 of the EAR, you may use the
symbol TSPA. Use of this symbol is optional; however, if you enter it
on an export control document, you are making a representation to the
U.S. Government that the technology or software is outside the scope of
the EAR.
(b) Forwarding agent.--(1) Authorizing a forwarding agent. A
forwarding agent is a person the exporter authorizes to perform
services that facilitate the export described on the Shipper's Export
Declaration (SED). The agent must be authorized to act on behalf of the
exporter either for the specific transaction for which the agent is
submitting the SED or under a general power of attorney. The Foreign
Trade Statistics Regulations of the Bureau of the Census (15 CFR part
30) provide the specific requirements for obtaining authorization as a
forwarding agent.
(2) Forwarding agent as licensee. If the forwarding agent is
appointed at the suggestion of a foreign buyer, the seller may insist
that the agent apply for the export license. See Sec. 748.4(a)(1) of
the EAR which defines parties to a transaction.
(3) Record and proof of agent's authority. The power-of-attorney or
other authorization from the exporter must be retained on file in the
forwarding agent's office while the authorization is in force and for a
period of five years after the last action taken by the forwarding
agent under the authority. During this retention period, the forwarding
agent must make its delegation of authority from the exporter available
for inspection on demand, in accordance with the provisions of
Sec. 762.6 of the EAR. This recordkeeping and inspection requirement
also applies to any redelegation of the forwarding agent's authority
and to any person to whom the forwarding agent redelegates its
authority. (For further recordkeeping requirements see part 762 of the
EAR).
(c) Responsibility for compliance. Acting through a forwarding
agent, or other agent or delegation or redelegation of authority, does
not relieve anyone of responsibility for compliance with the EAR.
Forwarding agents, carriers and others who participate in transactions
that are subject to the EAR are also responsible for complying with the
EAR.
(d) Exports by U.S. Mail.--(1) Exports made under a license issued
by BXA. Before making an export by U.S. Mail that is authorized by a
license issued by BXA, you must enter the license number on the address
side of the parcel and submit a properly executed SED to the post
office at the place of mailing, when required by the regulations in
this part and/or the Foreign Trade Statistics
[[Page 12853]]
Regulations of the U.S. Bureau of the Census. 1
\1\ The Shipper's Export Declaration (U.S. Department of
Commerce form 7525-V) may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402, or
it may be privately printed. Form 7525-V-Alt (Intermodal), must be
privately printed. Privately printed forms must strictly conform to
the official form in all respects. Samples of these forms may be
obtained from the Bureau of the Census, Washington, DC 20233, local
Customs offices, and the U.S. Department of Commerce District
Offices.
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(2) Shipments without a license. The requirements of this paragraph
apply whenever you export items that do not require a license under the
EAR. These requirements apply regardless of whether your transaction
does not require a license because the item you are going to ship is
encompassed with EAR99 (See Sec. 734.3(c) of the EAR entitled ``Scope
of the EAR''), because the item, although on the list, does not require
a license to be exported to the destination to which you intend to ship
or because the transaction qualifies for a License Exception as
described in part 740 of the EAR.
(i) Shipments to Canada for consumption therein. An SED is not
required for exports of items to Canada if the items are for
consumption in Canada and the export transaction does not require a
license from BXA. Note that if the item you are exporting to Canada is
controlled by another government agency, the regulations of that agency
may require you to file a SED.
(ii) Shipments to Puerto Rico or U.S. territories or possessions.
Exports of items to Puerto Rico or the U.S. territories or possessions
do not require a license issued by BXA. However, the regulations of the
Census Bureau (15 CFR part 30) may still require you to file a SED.
(iii) Shipments valued over $500. When mailing an item from one
business concern to another where the total value of the items being
shipped exceeds $500, you must present an executed SED to the post
office at the place of mailing unless the EAR or the Bureau of the
Census Foreign Trade Statistics Regulations specifically provide an
exception to this requirement. If either the exporter or recipient is
not a business concern, no SED is required.
(iv) Designation on SED and/or parcel. If you are exporting an item
that is encompassed within EAR99 (See Sec. 734.3(c) of the EAR entitled
``Scope of the EAR''), or one that is listed on the CCL but no license
is required to the destination to which you are shipping, or you are
exporting pursuant to a License Exception, as described in part 740 of
the EAR, you must enter the appropriate symbol indicating the absence
of a license requirement either NLR, meaning ``No License Required'' or
the applicable License Exception symbol, on the SED and on the address
side of the parcel along with the phrase ``Export License Not
Required.'' If your transaction is one for which you are not required
to file a SED, you must enter the appropriate symbol NLR, meaning no
license required or of the applicable License Exception on the address
side of the parcel along with the phrase ``Export License Not
Required.'' If you are exporting technology or software that is outside
the scope of the EAR as described in Sec. 734.7 through 734.11 you may
enter the symbol TSPA.
(A) By entering the symbol NLR you are representing to the U.S.
Government that the items you are exporting are listed on the CCL (See
Supplement No. 1 to part 774 of the EAR) but do not require a license
by reason of the Country Chart (Supplement No. 1 to part 738 of the
EAR) or because they are encompassed within the EAR99 (See
Sec. 734.3(c) of the EAR entitled ``Scope of the EAR''); that they do
not require a license under General Prohibitions One (Exports and
reexports of controlled items to listed countries), Two (Parts and
Components Reexports), or Three (Foreign Produced Direct Product
Reexports); that General Prohibitions Four through Ten do not apply to
the given export, reexport, or other activity; and that the item is
subject to the EAR.
(B) By entering a License Exception symbol, you are representing to
the U.S. Government that your transaction meets all of the terms and
conditions of the License Exception you are using. (See part 740 of the
EAR for details regarding License Exceptions).
(C) By entering the symbol TSPA you are representing to the U.S.
Government that the technology or software you are exporting is outside
the scope of the EAR.
(v) Gift parcels. If you are sending a gift parcel pursuant to the
requirements of Sec. 746.16 of the EAR, you must enter the phrase
``Gift--export license not required'' on any customs declaration
documents and on the address side of the parcel.
(vi) Software and technology. If you are exporting software or
technology, the export of which is authorized under the License
Exceptions in Sec. 740.17 through Sec. 740.21 of the EAR, you do not
need to make any notation on the package. If you are exporting software
or technology that is outside the scope of the EAR, check to see if any
other agency's regulations require specific markings on the package.
(3) When you enter any of the symbols or phrases referred to in
paragraph (d) of this section on the documents or packages, you are
certifying to the post office and to BXA that you are exporting the
package in compliance with all of the terms and provisions of an
applicable License Exception or other authority to export.
(e) Exports by means other than U.S. Mail. (1) When SEDs are
required to be submitted, the exporter or the exporter's agent must
present a duly executed SED to the exporting carrier before the vessel,
aircraft, or overland transport depart.
(i) Exemptions to SED. A SED is not required for:
(A) Any shipment, other than a shipment made under a license issued
by BXA, to any country in Country Group B (See Supplement No. 1 to part
740 of the EAR) or to the People's Republic of China if the shipment is
valued at $2,500 or less per Schedule B Number. The schedule B number
of an item is that shown in the current edition of Schedule B,
Statistical Classification of Domestic and Foreign Commodities Exported
from the United States. In this Sec. 758.1(e), ``shipment'' means all
items classified under a single Schedule B Number, shipped on the same
carrier, from one exporter to one importer. The Foreign Trade
Statistics Regulations of the Bureau of the Census (15 CFR part 30)
shall govern the valuation of items when determining whether a shipment
meets the $2,500 threshold of this Sec. 758.1(e)(1)(i)(A).
(B) Any shipment reported under the provisions of the Monthly
Reporting Procedure (Sec. 758.3(o) of this part); or
(C) Any shipment made under any other exception to the SED
requirements found in Subpart D of the Bureau of the Census' Foreign
Trade Statistics Regulations. See Supplement No. 1 to this part 758.)
(ii) Exceptions from SED requirements. (A) Statement on shipping
documents. If you are exempt by paragraph (e)(1) of this section from
the requirement of filing a SED, the Bureau of the Census Foreign Trade
Statistics Regulations (FTSR) (15 CFR 30.50), require you to make a
statement on the bill of lading, air waybill, or other loading document
describing the basis for the exemption and referencing the specific
section of the FTSR where the exemption is provided, unless the
exemption is based on value and destination. If the exemption is based
on the value and destination of your shipment, you must state the basis
for the exemption, but you do not have to cite a reference to the
specific section of the FTSR containing the exemption.
[[Page 12854]]
(B) Monthly reporting procedures. (1) All forwarders or brokers who
use the monthly reporting procedures described in FTSR Sec. 30.39 (15
CFR 30.39) on behalf of exporters who are not themselves exempt from
the individual filing requirement must also include on the bill of
lading, air waybill (including house air waybill), or other loading
document either the number of and expiration date of an export license
issued by BXA, or the appropriate symbol indicating the inapplicability
of an export license requirement (either NLR, meaning ``No License
Required'' or of the applicable License Exception, from part 740 of the
EAR).
(2) The notation required by paragraph (e)(1)(ii)(B)(1) of this
section applies to any bill of lading or other loading document,
including one issued by a consolidator (indirect carrier) for an export
included in a consolidated shipment. However, this requirement does not
apply to a ``master'' bill of lading or other loading document issued
by a carrier to cover a consolidated shipment. The bill of lading or
other loading document must be available for inspection along with the
goods or data prior to lading on the carrier.
(2) Export carrier SED information. The exporting carrier, or if
none is utilized, the exporter or agent is responsible for the accuracy
of the following items of information (where required) on the SED:
(i) Name of carrier (including flag of vessel),
(ii) U.S. Customs port of export,
(iii) Method of transportation,
(iv) Foreign port of unloading,
(v) Bill of lading or air waybill number, and
(vi) Whether or not containerized.
(3) Exports not requiring a license. Even if your shipment does not
require a license from BXA, it may still require a SED. Before
shipping, check the Bureau of the Census Foreign Trade Statistics
Regulations for the complete SED requirements.
(f) Shipments transiting Canada en route to other countries--(1)
Shipments moving under individual SED. When an export to a foreign
country is made in transit through Canada, and the shipment is one for
which an individual SED is required by this part 758, the U.S. exporter
must submit to the Canadian Customs authorities at the Canadian port of
entry a copy of the U.S. SED, Form 7525-V, certified by the exporter as
``A True Copy'' of the original SED.
(2) Shipments for which individual SED are not required. When an
export to a foreign country is made in transit through Canada, and the
shipment is one for which an individual SED is not required because:
(i) The forwarder or broker is authorized to report export
information to Census by means other than an individual SED; or
(ii) The shipment qualifies for a specific exemption (listed in
Subpart D of the Census Bureau Foreign Trade Statistics Regulations),
the forwarder or broker must include the number of and expiration date
of the license issued by BXA, or the appropriate symbol indicating the
inapplicability of an export license requirement (either NLR, meaning
``No License Required'' of the applicable License Exception from part
740 of the EAR on the bill of lading or other loading document as
directed in paragraph (e)(2) of this section). The bill of lading or
other loading document properly annotated with respect to the FTSR SED
exemption or exception, along with the license authorization, when
required, must be displayed to the Canadian Customs authorities at the
Canadian port of entry and a copy provided, if requested by the
Canadian authorities.
Sec. 758.2 Use of export license.
(a) License valid for shipment from any port. A license issued by
BXA authorizes exports from the United States from any U.S. port of
export unless the license notes otherwise. Items that leave the United
States at one port, cross adjacent foreign territory, and reenter the
United States at another port before final export to a foreign country
will be treated as an export from the last U.S. port of export.
(b) Shipments against expiring license. (1) Any item that has not
departed from the last U.S. port of export by midnight of the
expiration date of the license may not be exported under that license
unless the shipment meets the requirements of paragraph (b)(1)(i) or
(ii) of this section.
(i) BXA grants an extension; or
(ii) Prior to midnight of the expiration date of the license, the
items:
(A) Were laden aboard the vessel; or
(B) 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
(2) When the vessel is expected to be available at the pier for
loading before the license expires, but exceptional and unforeseen
circumstances delay it, the items may be exported without an extension
of the license, if in the judgment of the U.S. Customs Service or BXA,
undue hardship would otherwise result.
(c) Reshipment of undelivered items. If the consignee does not
receive an export made under a license because the carrier failed to
deliver it, the exporter may reship the same or an identical item
subject to the same limitations as to quantity or value as described on
the license to the same consignee and destination under the same
license. Before reshipping, the exporter must submit to the OEXS
satisfactory evidence of the original export and of the delivery
failure, together with a satisfactory explanation of the delivery
failure. If an item is to be reshipped to any person other than the
original consignee, the shipment is deemed to be a new export and is
subject to all current EAR regarding the specific item and destination.
Sec. 758.3 Shipper's Export Declaration (SED).
(a) SED presentation requirement. Both the Foreign Trade Statistics
Regulations of the Census Bureau (15 CFR part 30) and these Export
Administration Regulations require that SED's be submitted to the U.S.
Government. There are a few exceptions to this rule, but if you are
required to submit a SED you must prepare it in accordance with the
rules of the Foreign Trade Statistics Regulations (FTSR) and present
the number of copies specified in the FTSR at the port of export.
(b) SED is a statement to the U.S. Government. Your SED is a
statement to the U.S. Government in which you assert that all of the
information shown on the SED is true. You may execute and submit the
SED only if you are the exporter or the duly authorized forwarding
agent of an exporter.
(c) Limitation on time when SED may be used. No one may use a SED
to export, or facilitate or effect an export, after the expiration of
the applicable license or after the termination of the applicable
License Exception or provisions of the EAR that authorize export
without a license, except as provided in Sec. 750.7(f) (License
validity period) of the EAR and Sec. 758.2(b) (Shipments against
expiring license) of this part.
(d) Additional copies of the SED. You are required to submit
additional copes of the SED when:
(1) BXA or one of its component offices asks you to send it copies
of the SED for exports:
(i) Authorized by a license (see paragraph (l) of this section);
(ii) Authorized by a Special Comprehensive License (see
Sec. 752.16(a)(5) of the EAR; or
(iii) The items are controlled for short supply reasons (see part
754 of the EAR); or
[[Page 12855]]
(iv) Required by Sec. 758.1(f) (shipments transiting Canada) of
this part.
(2) [Reserved]
(e) Statements on SED. Whenever a SED is presented to a carrier, a
customs office, or a postmaster, the exporter represents that:
(1) All statements and information on the SED have been furnished
by the exporter or on the exporter's behalf to effect an export under
the provisions of the EAR;
(2) Export of the items described on the SED is authorized under
the ``No License Required'' provisions of the EAR as described in
Sec. 758.1(a) of this part, a License Exception described in part 740
of the EAR or the license identified on the SED;
(3) Statements contained on the SED are consistent with the
contents of the license or the terms, provisions, and conditions of the
applicable License Exception or of the applicable ``No License
Required'' provisions of the EAR as described in Sec. 758.1(a) of this
part; and
(4) All other terms, provisions, and conditions of the EAR
applicable to the export have been met.
(f) Items that may be listed on the same SED. (1) General. Except
as described in paragraph (f)(2) of this section, more than one item
may be listed on the same SED provided they are contained in one
shipment on board a single carrier and are going from the same exporter
to the same consignee. Even if some of the items are being shipped
under authority of a license and others under a License Exception or
the ``No License Required'' provisions of the EAR (as described in
Sec. 758.1(a) of this part), they may still be shown on one SED. For
the second and subsequent authorizations used, the applicable license
number and expiration date, License Exception symbol, or the ``No
License Required'' symbol (NLR) must be shown along with the
descriptions (including quantity, if required, Schedule B Number, and
value) to which each authorization applies, in the designated spaces on
a separate SED Continuation Sheet. The following apply for notations
made on SED:
(i) Entering the license number and expiration date is a
representation to the U.S. Government that the transaction is
authorized by the license cited.
(ii) Entering a License Exception symbol, or ``NLR'' is a
representation to the U.S. Government that the shipment meets one of
the applicable provisions of paragraph (a)(3) of Sec. 758.1 of this
part.
(2) Exception. Separate SED's must be prepared and presented for
each vehicle when more than one vehicle is used to make the shipment.
Customs Directors may waive this requirement if a shipment is made
under a single bill of lading or other loading document and all the
items listed on the SED are cleared simultaneously.
(g) Schedule B number and item description--(1) Schedule B number.
You must enter the Schedule B number, as shown in the current edition
of Schedule B, Statistical Classification of Domestic and Foreign
Commodities Exported from the United States, in the designated column
of the SED regardless of whether the shipment is being exported under
authority of a license issued by BXA, a License Exception described in
part 740 of the EAR, or the ``No License Required'' provisions of the
EAR as described in Sec. 758.1(a) of this part.
(2) Item description for exports under a license. (i) General. If
your export is being made under the authority of a license issued by
BXA, you must enter the item description shown on the license on the
SED. However, if part of the description on the license is underlined,
you need place only the underlined portions on the SED. The item
description on the license will be stated in CCL terms, which may be
inadequate to meet Census Bureau requirements. In this event, the item
description you place on the SED must give enough additional detail to
permit verification of the Schedule B number (e.g., size, material, or
degree of fabrication).
(ii) Distinguishing characteristics or specifications. If a
commodity classification in Schedule B has instructions such as
``specify by name,'' ``state species,'' etc., you must furnish that
information in the column of the SED provided for the commodity
description. When a single SED covers more than one item classifiable
under a single classification carrying the ``specify by name'' or
similar requirement, you must enter each item separately in this
column. However, if more than five items are involved, all classifiable
under one Schedule B number, only the five items of greatest value in
the classification need be shown separately. Separate quantities,
values, and shipping weights for individual items are not required in
either case.
(3) Item description for License Exception shipments or shipments
for which no license is required. For items that may be exported under
the authority of a License Exception, or under the ``No License
Required'' provisions of the EAR (as described in Sec. 758.1(a) of this
part), you must enter a description in sufficient detail to permit
review by the U.S. Government and verification of the Schedule B number
entered on the SED.
(h) License number or other authorization designation. (1) Exports
under authority of a license issued by BXA. You must show the license
number and expiration date, the Export Control Classification Number
(ECCN) and the item description, in the designated spaces of a SED
covering an export under a license issued by BXA (The space for the
item description on the SED form may be headed ``commodity
description''). If you intend to include other items on the SED that
may be exported under a License Exception, or under the ``No License
Required'' provisions of the EAR, (as described in Sec. 758.1(a) of
this part) you must show the License Exception or ``NLR'' symbol, along
with the specific description (quantity, Schedule B, value) of the
item(s) to which the authorization applies in the designated spaces on
a separate SED continuation sheet.
(2) Exports not needing a license. In addition to the item
description, the appropriate License Exception symbol, or the ``No
License Required'' symbol (NLR) must be shown in the appropriate column
of each SED or SED continuation sheet covering a shipment under
authority of a License Exception (see part 740 of the EAR), or ``No
License Required'' provisions of the EAR (as described in Sec. 758.1(a)
of this part). If several authorizations are to be listed on one SED,
the SED and continuation sheets must be completed as described in
paragraph (f)(1) of this section. If the item(s) will be exported under
the provisions of LST (License Exceptions GBS, CIV, LVS) or under the
``NLR'' provisions of the EAR (as described in Sec. 758.1(a) of this
part) and the item(s) are covered by entries on the Commerce Control
List that have the column identifier ``NS Column 2'' controlled for
``NS'' reasons, the ECCN must also be shown in the designated space on
the SED or SED continuation sheet. The following apply for notations
made on SED:
(i) Entering the license number and expiration date is a
representation to the U.S. Government that the transaction is
authorized by the license cited.
(ii) Entering a License Exception symbol, or ``NLR'' is a
representation to the U.S. Government that the shipment meets one of
the applicable provisions of paragraphs (a)(3) through (a)(4) of
Sec. 758.1 of this part.
(3) If you are exporting technology or software that is outside the
scope of the EAR as described in Secs. 734.7 through 734.11 of the EAR,
you may enter the symbol TSPA on the SED. Use of this
[[Page 12856]]
symbol is optional, however, if you enter it, you are representing to
the U.S. Government that the software or technology you are exporting
is outside the scope of the EAR.
(i) Optional ports of unlading. (1) Applicability. If, prior to the
departure of the exporting carrier, the exporter does not know at what
port the shipment will be unloaded, the exporter may designate optional
ports of unlading on the SED and bill of lading or air waybill in
accordance with the provisions of this paragraph. There are
restrictions on the countries in which these optional ports may be
located. The restrictions depend on whether the export is authorized
under the ``No license Required'' provisions of the EAR (as described
in Sec. 758.1(a) of this part), the License Exceptions described in
part 740 of the EAR, or a license (See paragraph (j)(3) of this
section).
(2) Exemptions. You may never designate an optional port of
unlading for a shipment destined directly or indirectly to Country
Group D:1 in Supplement No. 1 to part 740 of the EAR (except for the
People's Republic of China), Libya, Cuba, or North Korea.
(3) Shipments for which no license is required or which are
authorized by a License Exception. (i) For exports under the authority
of the ``No License Required'' provisions of the EAR (as described in
Sec. 758.1(a) of this part), if the exporter does not know which of
several countries in Country Group B or the People's Republic of China
is the country of ultimate destination, the exporter may name optional
ports of unlading in one or more of these countries.
(ii) When an export under any License Exception is shipped in
transit through a country other than the country of ultimate
destination, the exporter may designate optional ports of unlading in
one or more countries, together with the name and address of the
intermediate consignee in each country designated.
(4) Restrictions on optional ports of unlading. The optional ports
of unlading, which the exporter designates on the SED pursuant to
paragraph (i)(3)(i) of this section, must be in a country to which the
item being unloaded may be exported directly from the United States
under the same or another applicable ``No License Required'' provision
of the EAR (described in Sec. 758.1(a) of this part), or License
Exception contained in the EAR.
(5) Shipments under a license issued by BXA. For exports under a
license, optional ports of unlading are restricted to the country of
ultimate destination, unless either the transaction complies with the
provisions of Sec. 750.7 of the EAR dealing with continuity of
shipments, or the license designates intermediate consignees in other
countries. In the latter case, the optional ports of unlading must be
designated as optional intransit points on the SED, or if there is no
SED, on the Shipper's Letter of Instructions, or, if there is neither,
the optional port of unlading must appear on another document
containing instructions that the exporter conveys (either directly or
through an agent) to the carrier, and on the bill of lading or air
waybill.
(6) Correcting the SED. As soon as the exporter, or the exporter's
forwarding agent or carrier determines at which port the shipment is to
be unloaded (whether in the country of ultimate destination or in a
country of transit), that person must correct the SED to show the
specific port of unloading and the name and address of the intermediate
consignee to whom delivery is to be made. An intermediate consignee
must be shown if the port of unloading is located in a country other
than the country of destination. If the export is unloaded at more than
one port, the quantity and value unloaded at each port and the name and
address of each intermediate consignee must be given. The procedures
for correcting and filing SEDs may be found in paragraph (n) of this
section.
(j) Signature on SED. The exporter or the exporter's authorized
forwarding agent, or an authorized employee of either, may sign the
SED. In general, the requisite authority rests with employees who, by
their official titles, are apparently vested with power to deal with
exports, such as export managers or such corporate officers as the
president, vice president, treasurer, and secretary of a corporation,
any partner of a partnership, and any responsible head of any other
form of private or quasi-governmental organization, and assistant
officers. The signature of such person, whether that of the exporter or
authorized agent or employee, constitutes a representation by the
exporter that all statements and information in the SED are true and
correct. In addition, if the signature is that of the forwarding agent,
or the forwarding agent's duly authorized officer or employee, such
signature constitutes a like representation by the forwarding agent.
(k) Attachment to SED. (1) If you need additional space for any
information on the SED, you may use additional copies of the SED or
copies of the continuation sheet. In such cases, only one SED need be
signed. You must number the additional sheets in sequence and securely
attach them to the executed SED. You must insert the following
statement on the last line of the description line of the SED form
itself:
This SED consists of this sheet and ________ continuation
sheets.
(2) No portion of any form attached as a continuation sheet may be
torn off or removed.
(l) Special requirements for additional information and documents.
(1) A license may bear on its face a requirement to submit a SED or
other documents (or information) to the Office of Export Enforcement in
addition to that furnished when the application was filed. The exporter
and the person submitting the documents represent that the documents
are complete, truthful and accurate. The Export Administration
Regulations prohibit the making of false representations to the U.S.
Government in any export control matter (see Sec. 764.2(g) of the EAR).
The licensee must furnish the documents to: Office of Export
Enforcement, Room H-4520, U.S. Department of Commerce, 14th Street and
Constitution Ave., NW., Washington, DC 20230.
(2) When required, the licensee must:
(i) Prepare one copy of the SED in addition to the number of copies
otherwise required;
(ii) Enter the additional information called for by the license in
the space between the column provided for marks and numbers of the
shipment and the column provided for its value on all copies of the
SED; and
(iii) Unless otherwise specified on the license, attach the
required documents (either original or certified copy) to the extra
copy of the SED.
(m) SED for shipments moving in- transit. (1) Applicability. Use
the SED for In-transit Goods, Commerce Form 7513,2 for the
following types of transactions:
\2\ Form 7513 may be purchased from the Superintendent of
Documents, U.S. Government Printing Office, Washington, D.C. 20402,
the local customs offices, or may be privately printed.
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(i) Items departing the United States by vessel, which transited
through, or transshipped in, ports of the United States, destined from
one foreign country or area to another.
(ii) Foreign merchandise exported from a General Order Warehouse
and the export of foreign-origin merchandise that was rejected after
government inspection or examination. Shipments in bond transiting the
United States being exported by means of any carrier other than a
vessel may be cleared for export without presenting a Form 7513, unless
a license is required for the export.
[[Page 12857]]
(2) Exports from Foreign Trade Zones. You may not use Form 7513 for
any exports from Foreign Trade Zones. Such shipments require the filing
of the SED (Form 7525-V), unless otherwise exempted, with the
applicable zone number reported on the Document.
(3) Additional information. The following additional information
must be entered on a SED for In-transit Goods:
(i) The name and address of the intermediate consignee in a foreign
destination, if any, must be shown below the description of the items.
(ii) Underneath the name and address of the intermediate consignee,
one of the following statements, whichever is appropriate, must be
entered:
(A) For intransit shipments of foreign-origin merchandise (see part
772 of the EAR for a definition of ``foreign-origin,''), enter the
following statement:
The merchandise described herein is of foreign-origin.
(B) For intransit shipments of domestic (U.S.) merchandise, enter
the following statement:
The merchandise described herein is of the growth, production, or
manufacture of the United States.
(C) For intransit shipments of items of U.S.-origin eligible for
License Exception TUS (See Sec. 740.9 of the EAR), enter the following
statement:
The merchandise described herein is of the growth, production, or
manufacture of the United States, but has been so altered by further
processing, manufacture, or assembly in a foreign country that it has
either been substantially enhanced in value, or has lost its original
identity with respect to form.
(iii) The items must be described in terms of Schedule B, including
the appropriate Schedule B number.
(4) See Sec. 30.8 of the Foreign Trade Statistics Regulations (15
CFR 30.8) for additional requirements concerning the information that
must be placed on a SED for In-transit Goods.
(n) Correction, change, alteration, or amendment of SED. (1)
Methods of changing SED's. The exporter or the exporter's agent must
report corrections, cancellations, additions or amendments to
information reported on SEDs to the Customs Director at the port of
exportation (or, in the case of mail shipments, to the Postmaster at
the post office where the shipment was mailed) as soon as the need for
such changes is determined. See the Foreign Trade Statistics
Regulations (15 CFR part 30) for additional information about how to
correct SEDs and file the corrections. If you are required by paragraph
(l) of this section to file a copy of the original SED with the Office
of Export Enforcement (OEE), a copy of the changed SED should be sent
to OEE at the address shown in paragraph (l) of this section with the
words ``Correction Copy'' conspicuously shown in the upper right
portion of the form.
(2) Responsibility. Nothing in this section relieves you or any
person or firm making changes on the SED from responsibility for any
such changes. Acceptance of a changed SED by the Customs office does
not imply approval of any act involved in the shipment or acceptance of
the truth or accuracy of the information provided.
(o) Summary monthly reports in lieu of individual SED's. (1) Scope.
This paragraph contains only basic information about the monthly filing
procedures for the SED. Details of the procedure may be found in
Sec. 30.39 of the Foreign Trade Statistics Regulations (FTSR) of the
Bureau of the Census (15 CFR 30.39). Exporters interested in the
procedure should consult Sec. 30.39 of the FTSR to ascertain
qualifications, how to apply for the privilege of participating, how to
file electronically after approval is given, and other pertinent facts.
(2) Applicability. Approved parties may file monthly SEDs with the
Bureau of the Census for export to destinations in Country Groups B and
D:1 (see Supplement No. 1 to part 740 of the EAR).
(3) How to request monthly reporting privileges. (i) Addresses. (A)
A request for the privilege of participating in monthly reporting
procedures should be forwarded to: Foreign Trade Division, Bureau of
the Census, Washington, D.C. 20233.
(B) A copy of all requests must be sent to: Office of Export
Enforcement, Room H-4616, U.S. Department of Commerce, 14th St. and
Constitution Ave., NW., Washington, DC 20230.
(ii) Certification requirements. The request must include the
following certification by the applicant:
I (We) certify that I (we) have established adequate internal
procedures and safeguards to assure compliance with the requirements
set forth in the U.S. Department of Commerce Export Administration
Regulations and Foreign Trade Statistics Regulations. Among other
things, these procedures and safeguards assure:
(1) A proper determination as to whether a license is required
for a particular export;
(2) Actual receipt of the export license, if required, before
the shipment is exported;
(3) Compliance with all the terms of the license, License
Exception, or NLR provisions of the EAR as applicable;
(4) Return of licenses to BXA in accordance with Sec. 750.8(b)
of the Export Administration Regulations, if requested;
(5) Compliance with the destination control statement provisions
of Secs. 758.5 and 758.6 of the Export Administration Regulations;
(6) Compliance with the prohibition against export transactions
that involve persons who have been denied U.S. export privileges;
and
(7) Compliance with the recordkeeping requirements of part 762
of the EAR and, in addition, I (we) agree that my (our) office
records will be made available for inspection by the Bureau of the
Census, BXA or the U.S. Customs Service, upon request, to verify
that a given shipment was properly included in a particular monthly
report.
(4) Exporter's agent. If the exporter intends to authorize a
forwarding agent to file electronically on the exporter's behalf, the
exporter's request must include the name and address of each such
forwarding agent.
(5) Authorization by Census to use monthly reporting procedure. Any
authorization to file summary monthly reports in lieu of individual
SEDs may be granted only by the Bureau of the Census with the
concurrence of BXA.
(6) Export clearance. (i) Destination control statement. In
addition to the exporter's responsibility for assuring that the proper
destination control statement is placed on the commercial invoice as
required by Sec. 758.6 of this part, the exporter or the exporter's
forwarding agent is responsible for assuring that the carrier places
the proper destination control statement on the related bill of lading
or air waybill.
(ii) Detention and examination. Shipments being reported under the
summary filing procedure described in this paragraph are subject to
inspection, examination and detention, as provided in Sec. 758.7 of
this part, whenever an official of BXA, a customs officer, or a
postmaster deems such action necessary to assure compliance with the
EAR.
(7) Revocation of authorization. An authorization to file summary
monthly reports in lieu of individual SED's, granted under the
provisions of Sec. 30.39 of the Foreign Trade Statistics Regulations
(15 CFR 30.39) and this paragraph, may be revoked, suspended, or
revised at any time.
(8) Effect of other provisions. Insofar as consistent with the
provisions of this paragraph that relate specifically to filing
electronically in lieu of individual SED's, the other provisions of
this part 758 apply to exports reported under this procedure.
Sec. 758.4 Conformity of documents for shipments under export licenses
(a) Applicability. The rules of conformity in this section apply to
shipping documents used in connection with any shipment under the
authority
[[Page 12858]]
of a license issued by BXA except ``master'' air waybills issued by
consolidators. These rules apply to any individual air waybill issued
by a consolidator (indirect carrier) for an export included in a
consolidated shipment and to any air waybill issued by anyone in
connection with an export not included in a consolidated shipment.
(b) Compliance. You may not issue, prepare, or procure a bill of
lading that is contrary to the provisions of this section. Officials of
BXA and the U.S. Customs Service are authorized to require any document
or to use any other appropriate methods to ensure compliance with the
rules of conformity in this section.
(c) Rules of conformity. (1) General. The following documents must
be consistent with each other:
(i) The license issued by BXA;
(ii) One of the following applicable documents:
(A) The SED;
(B) If there is no SED, the Shipper's Letter of Instructions; or
(C) If there is neither, another document containing instructions
that the exporter conveys (either directly or through an agent) to the
carrier; and
(iii) The outbound bill of lading (including a railroad through
bill of lading) covering a particular export shipment must be
consistent with one another.
(2) Signs of inconsistent documents. The bill of lading, whether in
negotiable or nonnegotiable form, is not consistent with those other
documents if:
(i) It does not provide for delivery of the shipment (cargo) at a
port located in the country of either the ultimate or intermediate
consignee named in the documents described in paragraph (c)(1)(ii) of
this section;
(ii) It contains any indication that the shipment is intransit to a
country of ultimate destination different from that named in the
appropriate one of the documents described in paragraph (c)(1)(ii) of
this section, or that the shipment is not for consumption in such
country of ultimate destination. For example, it would be inconsistent
to consign a shipment to the ultimate destination with a qualifying
phrase indicating the shipment is ``in transit'' at that destination,
or to consign the shipment to a free zone or free port;
(iii) It names as shipper any person other than the licensee (the
person to whom a license is issued) or the licensee's duly authorized
forwarding agent. Where shipments from more than one licensee are
consolidated on a single bill of lading, the shipper named on the bill
of lading must also appear as the authorized forwarding agent for each
exporter on each document described in paragraph (c)(1)(ii) of this
section.
(iv) The name and address of the ultimate consignee are not shown
either in the space provided for ``consignee'' or in the body of the
bill of lading under the caption ``ultimate consignee and notify
party'' or, in the case of the air waybill, under the caption ``also
notify.'' However, where shipments to more than one ultimate consignee
are consolidated on one bill of lading and not all are shown in the
body of the bill of lading, the name of the intermediate consignee
(customs broker or consolidator's agent in the foreign country) who
will receive and distribute the items to the ultimate consignees must
appear on the bill of lading, the export license(s), and documents
listed in paragraph (c)(1)(ii) of this section.
(3) Additional rules for negotiable bills of lading. A negotiable
bill of lading (an ``order'' bill of lading) is deemed consistent with
the appropriate one of the documents described in paragraph (c)(1)(ii)
of this section only if the consignee or order party named on the bill
of lading is also named in the SED, the Shipper's Letter of
Instructions or the other document.
(i) Sometimes ``order'' bills of lading consign the items they
cover to the order of the shipper, to the order of an intermediate
consignee such as a bank, foreign freight forwarder, or other
intermediary, or to the order of a purchaser who is not the same person
as the ultimate consignee. An ``order'' bill of lading issued in any of
these forms constitutes a representation by the shipper that:
(A) The items covered by the appropriate one of the documents
described in paragraph (c)(1)(ii) of this section and bill of lading
are ultimately destined to the ultimate consignee stated on the
license;
(B) The ``order'' bill of lading has not been used for the purpose
of evading the terms and conditions of the license; and
(C) Pursuant to the contract of carriage, the items will be
delivered at a port located in the country of the ultimate consignee or
of the intermediate consignee named on the appropriate one of the
documents described in paragraph (c)(1)(ii) of this section.
(ii) [Reserved]
(4) Item description. On the bill of lading the items may be
described in terms of the freight tariff classification or other type
of classification, but may not be inconsistent with the description
shown on the appropriate one of the documents described in paragraph
(c)(1)(ii). These documents must include the same item description as
shown on the related license, and, in addition, it must include more
detailed information where required by the Bureau of the Census.
(5) Carrier's manifest. If the carrier's outward foreign manifest
filed with the U.S. customs office contains the names of shippers or
consignees, these names must not be inconsistent with the names shown
on the bill of lading and the appropriate one of the documents
described in paragraph (c)(1)(ii) of this section.
Sec. 758.5 General destination control requirements
(a) Scope. This section sets forth some actions the parties to a
transaction authorized by a license issued by BXA are prohibited from
taking. The purpose of these prohibitions is to prevent items licensed
for export from being diverted while in transit or thereafter. It also
sets forth the duties of the parties when the goods are unloaded in a
country other than that of the ultimate consignee or intermediate
consignee as stated on the export license.
(b) Destination on bill of lading or air waybill--(1) Requirements
to prevent diversions. (i) Statements on bill of lading or air waybill.
(A) A carrier (or any other person on behalf of any carrier) may not
issue a bill of lading or air waybill providing for delivery of cargo
at any foreign port located outside the country of the ultimate
consignee, or the intermediate consignee, named on the appropriate one
of the documents described in Sec. 758.4(c)(1)(ii) of this part.
(B) Optional ports on bill of lading or air waybill. No carrier may
issue a bill of lading or air waybill providing for delivery of cargo
at optional ports to the ultimate consignee named on one of the
appropriate documents described in Sec. 758.4(c)(1) (i) and (ii) of
this part where one of such optional ports is not in the country of
ultimate destination named on the license or SED, or if there is no
SED, the Shipper's Letter of Instructions, or if there is neither,
another document containing instructions that the exporter conveys
(either directly or through an agent) to the carrier, without prior
written authorization from BXA. However, where the appropriate document
described in Sec. 758.4(c)(1) (i) and (ii) of this part provide for
delivery of cargo to optional intermediate consignees located in ports
in different countries, the carrier may issue a bill of lading or air
waybill providing for delivery at such optional ports.
(ii) [Reserved]
(2) Delivery of cargo. No carrier may deliver cargo to any country
other than
[[Page 12859]]
the country of the ultimate consignee, or the intermediate consignee,
named on the appropriate one of the documents described in
Sec. 758.4(c)(1)(ii) of this part at the request or option of the
shipper, consignor, exporter, purchaser, or ultimate consignee, or
their agents, or any other person having custody or control of the
shipment, without prior written authorization from BXA to the carrier
or its agent.
(c) Duties when items are unloaded in a unauthorized country. If
the items are unloaded in a country other than that of the intermediate
or ultimate consignee as stated on the appropriate one of the documents
described in Sec. 758.4(c)(1)(ii) of this part, the procedures
described in this paragraph must be followed.
(1) Reasons beyond carrier's control. Nothing contained in the EAR
shall be deemed to prohibit a carrier from unloading cargo at a port
outside the country of intermediate or ultimate destination shown on
the appropriate one of the documents described in Sec. 758.4(c)(1)(ii)
of this part, where for reasons beyond the control of the carrier (as
set forth in the standard provisions of the carrier's bill of lading or
air waybill, such as acts of God, perils of the sea, damage to the
carrier, strikes, war, political disturbances, or insurrections), it is
not feasible to deliver the cargo at the licensed port of destination.
(2) Required actions for unscheduled unloading. (i) If the item is
unloaded in a country to which that item may be exported without a
license issued by BXA, no one is required to notify BXA of the
unloading. The exporter may dispose of the items in that country
without approval of BXA. When making such a disposition you must still
comply with any conditions or requirements of the License Exception or
other provisions of the EAR that would authorize the export of the item
being unloaded to the country in which you are disposing of it, and any
regulations of other government agencies that apply to the transaction.
This paragraph does not authorize anyone to take any action with
knowledge that a violation of the Export Administration Act, the EAR,
or any order, license or authorization issued thereunder, has occurred,
is about to occur or is intended to occur, or to deliver to a denied
party or to take any other action prohibited by the EAR.
(ii) If a license issued by BXA would be required to export the
item to the country in which it is unloaded:
(A) No person may take any steps to effect delivery or entry of the
items into the commerce of the country where unloaded without prior
approval of BXA;
(B) The carrier must take steps to assure that the items are placed
in custody under bond or other guaranty not to enter the commerce of
such country or any country other than the countries of the ultimate
and intermediate consignees shown on the appropriate one of the
documents described in Sec. 758.4(c)(1)(ii) of this part, without prior
approval of BXA;
(iii) The carrier, the carrier's agent located in the United
States, and the exporter each have specific responsibilities to notify
BXA regarding any unscheduled unloading. The specific responsibilities
of each party are as follows:
(A) The carrier must, within 10 days after date of unloading,
report the facts to the nearest American Consulate and to the agent of
the carrier located in the United States. Within 10 days after receipt
of such report, the agent must send a copy of the report to BXA. The
report must include:
(1) A copy of the manifest of such diverted cargo;
(2) A statement of the place of unloading; and;
(3) The name and address of the person in whose custody the items
were delivered.
(B) BXA will inform the exporter of the unloading. Within 10 days
following receipt of this notice, the exporter must inform BXA of the
proposed disposition of the items. The exporter may not dispose of the
items without approval of BXA.
Sec. 758.6 Destination control statement
(a) Requirement for destination control statement. (1) The
destination control statement shown in paragraph (b) of this section
must be entered on all copies of the bill of lading, the air waybill
and the commercial invoice covering any export from the United States
if:
(i) The export is made under authority of a license, including the
Special Comprehensive License;
(ii) The export is made under the authority of the following
License Exceptions: LST (GBS, CIV, LVS), RPL (PTS, SNR), and TMP (TMP,
TUS); or
(iii) The export is made under the ``No License Required''
provisions of the EAR (as described in Sec. 758.1(a) of this part) if
the reason for control of the item as stated in the entry on the CCL is
NS or NP.
(2) An exporter or the exporter's agent may enter a destination
control statement on the shipping documents for exports for which no
destination control statement is required.
(b) Text of destination control statement.
These commodities, technology or software were exported from the
United States in accordance with the Export Administration
Regulations. Diversion contrary to U.S. law prohibited.
(c) Additional destination information. In addition to the
destination control statement, an exporter or exporter's agent may
supply additional information on the shipping documents, including the
country(ies) to which export or reexport is authorized.
(d) Permissive reexports. If reexport or diversion from the
original transaction is contemplated and the change from the original
transaction is consistent with the license, License Exception, the NLR
provisions of the EAR or other authorization and with all other
requirements of the EAR, the exporter may so advise its foreign
importer without obtaining further authorization from BXA.
(e) Responsibility for assuring that the destination control
statement is used--(1) Exporters. The exporter is responsible for
assuring entry of the destination control statement on the commercial
invoice, regardless of whether the exporter actually prepares this
document. The exporter has this responsibility even if the invoice is
prepared by an order party or the exporter acts through an agent.
(2) Agents of exporters (forwarding agents). Agents of exporters
are also responsible for assuring entry of the destination control
statement on the commercial invoice.
(i) If the agent receives from the exporter a copy of a commercial
invoice without the correct destination control statement, the agent
must:
(A) Notify the exporter in writing;
(B) Request written assurance from the exporter that:
(1) The destination control statement has been properly entered on
all other copies of the commercial invoice; and
(2) Any person who received an invoice without the statement has
been informed in writing of the restrictions in the statement;
(ii) And either:
(A) Enter the appropriate statement on the agent's copy of the
invoice; or
(B) Return it to the exporter for completion; and
(iii) Keep and make available for inspection, in accordance with
part 762 of the EAR, a copy of that person's notification to the
exporter and the original of the exporter's assurance required by
paragraph (e)(2)(i) of this section. (For further recordkeeping
requirements, see part 762 of the EAR.)
[[Page 12860]]
(iv) If the agent prepares the invoice, the agent's
responsibilities are governed by paragraph (e)(3) of this section.
(3) Forwarders, carriers and other parties who prepare invoices. If
a forwarder, a carrier acting as a forwarder, or any other party
prepares, presents, and/or executes the invoice, the forwarder,
carrier, or other party is also responsible for assuring that an
appropriate statement is entered on the invoice.
(4) Carriers and other parties who issue bills of lading or air
waybills. The carrier, or any other party that issues the bill of
lading or air waybill, is responsible for assuring that the destination
control statement appearing on the corresponding invoice also appears
on the bill of lading or air waybill.
(f) Responsibility for distributing copies of the invoice. The
exporter or other person issuing any invoice containing a destination
control statement must send copies in a manner which assures their
arrival either with or prior to arrival of the items being exported to:
(1) The ultimate consignee and the purchaser named in the SED;
(2) The intermediate consignee; and
(3) Any other persons named in the invoice who are located in a
foreign country. Nothing contained in this part shall be construed to
limit the persons or classes of persons to whom such invoices, bills of
lading or air waybills are usually and customarily sent in the course
of export trade. The shipper or other person issuing the commercial
invoice may comply with the requirements of this section even if the
copy of the invoice sent to any of the persons listed in paragraphs
(f)(1) or (2) this section omits all reference to price or sales
commission provided such invoice otherwise adequately identifies the
shipment. As an alternative in lieu of a copy of the commercial
invoice, such person may send a copy of the bill of lading or air
waybill containing the destination control statement.
(g) Requirements for bill of lading or air waybill. (1) General. No
carrier may issue (and no one may prepare or procure) a bill of lading
or air waybill covering an export for which a destination control
statement is required under the provisions of paragraph (a) of this
section, unless all copies of such bill of lading or air waybill
(including all non-negotiable and office copies) contain the
destination control statement in clearly legible form.
(2) Exception for ``master'' air waybills. In the case of shipments
by air (other than airmail or air parcel post), the requirement of
paragraph (e)(2)(i) of this section applies to any air waybill,
including one issued by a consolidator (indirect carrier) for an export
included in a consolidated shipment. However, the provisions of
paragraph (f) of this section do not apply to a ``master'' air waybill
issued by a carrier to cover a consolidated shipment.
(h) Requirements for the commercial invoice. No licensee, shipper,
consignor, exporter, agent, or any other person may prepare or issue a
commercial invoice for a shipment for which a destination control
statement is required under the provisions of paragraph (a) of this
section, unless all copies of the invoice(s) contain the statement in
clearly legible form.
(i) Carrier's responsibility before releasing cargo. No carrier may
release custody of a shipment covered by the provisions of this section
to any party without surrender by that party, to the carrier, of a copy
of the bill of lading or air waybill bearing on its face the applicable
destination control statement, unless either:
(1) Simultaneously with the release, the carrier delivers to such
party a written copy of the destination control statement, contained in
the carrier's copy of the bill of lading or air waybill for the
shipment. The written copy must identify the shipment by bill of lading
or air waybill number, name of carrier, voyage or flight number, date,
and port of arrival. The carrier must also secure either a signed
receipted copy of the written statement or other equivalent written
evidence that the statement has been delivered by the carrier; or,
(2) The regulations of the importing country require the carrier to
deliver the items directly into the physical possession and control of
customs or other government agency for delivery to the consignee or the
consignee's agent. In this case, the carrier need not give to, or
receive from, the customs or other government agency, or the consignee
or the consignee's agent, any document bearing the destination control
statement.
Sec. 758.7 Authority of the Office of Export Enforcement, the Bureau
of Export Administration, Customs offices and Postmasters in clearing
shipments
(a) Actions to assure compliance with the EAR. Officials of BXA,
the Office of Export Enforcement, the U.S. Customs Service and
postmasters, including post office officials, are authorized and
directed to take appropriate action to assure compliance with the EAR.
This includes assuring that:
(1) Exports without a license issued by BXA 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 BXA
are, in fact, so authorized and the transaction complies with the terms
of the license.
(b) Types of actions. The officials designated in paragraph (a) of
this section are authorized to take the following types of actions:
(1) Inspection of items. (i) Purpose of inspection. All items
declared for export are subject to inspection for the purpose of
verifying the items specified in the SED, or if there is no SED, the
bill of lading or other loading document covering the items about to be
exported, and the value and quantity thereof, and to assure observance
of the other provisions of the Export Administration Regulations. This
authority applies to all exports within the scope of the Export
Administration Act or Export Administration Regulations whether or not
such exports require a license issued by BXA. The inspection may
include, but is not limited to, item identification, technical
appraisal (analysis), or both.
(ii) Place of inspection. Inspection shall be made at the place of
lading or where officials authorized to make those inspections are
stationed for that purpose.
(iii) Technical identification. Where, in the judgment of the
official making the inspection, the item cannot be properly identified,
a sample may be taken for more detailed examination or for laboratory
analysis.
(A) Obtaining samples. The sample will be obtained by the official
making the inspection in accordance with the provisions for sampling
imported merchandise. The size of the sample will be the minimum
representative amount necessary for identification or analysis. This
will depend on such factors as the physical condition of the material
(whether solid, liquid, or gas) and the size and shape of the
container.
(B) Notification to exporter and consignee. When a sample is taken,
the exporter (or the exporter's agent) and the ultimate consignee will
be notified by letter from one of the official designated in paragraph
(a) of this section, showing the port of export, date of sampling,
export license number (if any) or other authorization, invoice number
quantity of sample taken, description of item, marks and packing case
numbers, and manufacturer's number for the item. The original letter
will be sent to the exporter or the exporter's agent, the duplicate
will be placed in the container that had been opened, and the
triplicate will be retained by the inspecting office.
[[Page 12861]]
(C) Disposal of samples. Samples will be disposed of in accordance
with the U.S. Customs Service procedure for imported commodities.
(2) Inspection of documents. (i) General. Officials designated in
paragraph (a) of this section are authorized to require exporters or
their agents, and owners and operators of exporting carriers or their
agents, to produce for inspection or copying: invoices, orders, letters
of credit, inspection reports, packing lists, shipping documents and
instructions, correspondence, and any other relevant documents, as well
as furnish other information bearing upon a particular shipment being
exported or intended to be exported.
(ii) Cartridge and shell case scrap. When cartridge or shell cases
are being exported as scrap (whether or not they have been heated,
flame-treated, mangled, crushed, or cut) from the United States, the
U.S. Customs Service is authorized to require the exporter to furnish
information bearing on the identity and relationships of all parties to
the transaction and produce a copy of the bid offer by the armed
services in order to assure that the terms of the Export Administration
Regulations are being met and that the material being shipped is scrap.
(3) Questioning of individuals. Officials designated in paragraph
(a) of this section are authorized to question the owner or operator of
an exporting carrier and the carrier's agent(s), as well as the
exporter and the exporter's agent(s), concerning a particular shipment
exported or intended to be exported.
(4) Prohibiting lading. Officials designated in paragraph (a) of
this section are authorized to prevent the lading of items on an
exporting carrier whenever those officials have reasonable cause to
believe that the export or removal from the United States is contrary
to the Export Administration Regulations.
(5) Inspection of exporting carrier. The U.S. Customs Service is
authorized to inspect and search any exporting carrier at any time to
determine whether items are intended to be, or are being, exported or
removed from the United States contrary to the Export Administration
Regulations. Officials of the Office of Export Enforcement may conduct
such inspections with the concurrence of the U.S. Customs Service.
(6) Seizure and detention. Customs officers are authorized, under
Title 22 of the United States Code, section 401, et seq., to seize and
detain any items whenever an attempt is made to export such items in
violation of the Export Administration Regulations, or whenever they
know or have probable cause to believe that the items are intended to
be, are being, or have been exported in violation of the EAR. Seized
items are subject to forfeiture. In addition to the authority of
Customs officers to seize and detain items, both customs officials and
officials of the Office of Export Enforcement are authorized to detain
any shipment held for review of the SED, or if there is no SED, the
bill of lading or other loading document covering the items about to be
exported, or for physical inspection of the items, whenever such action
is deemed to be necessary to assure compliance with the EAR.
(7) Preventing departure of carrier. The U.S. Customs Service is
authorized under Title 22 of the U. S. Code, section 401, et seq., to
seize and detain, either before or after clearance, any vessel or
vehicle or air carrier that has been or is being used in exporting or
attempting to export any item intended to be, being, or having been
exported in violation of the EAR.
(8) Ordering the unloading. The U.S. Customs Service is authorized
to unload, or to order the unloading of, items from any exporting
carrier, whenever the U.S. Customs Service has reasonable cause to
believe such items are intended to be, or are being, exported or
removed from the United States contrary to the EAR.
(9) Ordering the return of items. If, after notice that an
inspection of a shipment is to be made, a carrier departs without
affording the U.S. Customs Service, Office of Export Enforcement, or
BXA personnel an adequate opportunity to examine the shipment, the
owner or operator of the exporting carrier and the exporting carrier's
agent(s) may be ordered to return items exported on such exporting
carrier and make them available for inspection.
(10) Designating time and place for clearance. The U.S. Customs
Service is authorized to designate times and places at which U.S.
exports may move by land transportation to countries contiguous to the
United States.
Sec. 758.8 Return or unloading of cargo at direction of BXA, the
Office of Export Enforcement or Customs Service.
(a) Exporting carrier. As used in this section, the term
``exporting carrier'' includes a connecting or on-forwarding carrier,
as well as the owner, charterer, agent, master, or any other person in
charge of the vessel, aircraft, or other kind of carrier, whether such
person is located in the United States or in a foreign country.
(b) Ordering return or unloading of shipment. Where there are
reasonable grounds to believe that a violation of the Export
Administration Regulations has occurred, or will occur, with respect to
a particular export from the United States, BXA, the Office of Export
Enforcement, or the U.S. Customs Service may order any person in
possession or control of such shipment, including the exporting
carrier, to return or unload the shipment. Such person must, as
ordered, either:
(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 BXA. 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) Requirements regarding shipment to be unloaded. The provisions
of Sec. 758.5(b) and (c) of this part, relating to reporting,
notification to BXA, and the prohibition against unauthorized delivery
or entry of the item into a foreign country, shall apply also when
items are unloaded at a port of call, as provided in paragraph (b)(2)
of this section.
(d) Notification. Upon discovery by any person included within the
term ``exporting carrier,'' as defined in paragraph (a) of this
section, that a violation of the EAR has occurred or will occur with
respect to a shipment on board, or otherwise in the possession or
control of the carrier, such person must immediately notify both:
(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.
Sec. 758.9 Other applicable laws and regulations.
The provisions of this part 758 apply only to exports regulated by
BXA. 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 and
manifests, or any applicable rules and regulations of the U.S. Customs
Service.
[[Page 12862]]
PART 760--RESTRICTIVE TRADE PRACTICES OR BOYCOTTS
Sec.
760.1 Definitions.
760.2 Prohibitions.
760.3 Exceptions to prohibitions.
760.4 Evasion.
760.5 Reporting requirements.
Supplement No. 1 To Part 760--Interpretations
Supplement No. 2 To Part 760--Interpretation
Supplement No. 3 To Part 760--Interpretation
Supplement No. 4 To Part 760--Interpretation
Supplement No. 5 To Part 760--Interpretation
Supplement No. 6 To Part 760--Interpretation
Supplement No. 7 To Part 760--Interpretation
Supplement No. 8 To Part 760--Interpretation
Supplement No. 9 To Part 760--Interpretation
Supplement No. 10 To Part 760--Interpretation
Supplement No. 11 To Part 760--Interpretation
Supplement No. 12 To Part 760--Interpretation
Supplement No. 13 To Part 760--Interpretation
Supplement No. 14 To Part 760--Interpretation
Supplement No. 15 To Part 760--Interpretation
Supplement No. 16 To Part 760--Interpretation
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 760.1 Definitions.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C.
(a) Definition of Person. For purposes of this part, the term
``person'' means any individual, or any association or organization,
public or private, which is organized, permanently established,
resident, or registered to do business, in the United States or any
foreign country. This definition of person includes both the singular
and plural and, in addition, includes:
(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) Definition of ``United States Person''. (1) This part applies
to United States persons. For purposes of this part, the term United
States person means any person who is a United States resident or
national, including individuals, domestic concerns, and ``controlled in
fact'' foreign subsidiaries, affiliates, or other permanent foreign
establishments of domestic concerns. This definition of United States
person includes both the singular and plural and, in addition,
includes:
(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 domestic concern means any partnership, corporation,
company, association, or other entity of, or organized under the laws
of, any jurisdiction named in paragraph (b)(1) (i) or (ii) of this
section, or any permanent domestic establishment of a foreign concern.
(3) The term foreign concern means any partnership, corporation,
company, association, or other entity of, or organized under the laws
of, any jurisdiction other than those named in paragraph (b)(1)(i) or
(ii) of this section.
(4) The term United States person does not include an individual
United States national who is resident outside the United States and
who is either employed permanently or temporarily by a non-United
States person or assigned to work as an employee for, and under the
direction and control of, a non-United States person.
Examples of ``United States Person''
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
[[Page 12863]]
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) Definition of ``Controlled in Fact''. (1) This part applies to
any domestic concern's foreign subsidiary, partnership, affiliate,
branch, office, or other permanent foreign establishment which is
controlled in fact by such domestic concern. Control in fact consists
of the authority or ability of a domestic concern to establish the
general policies or to control day-to-day operations of its foreign
subsidiary, partnership, affiliate, branch, office, or other permanent
foreign establishment.
(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.
Examples of ``Controlled in Fact''
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) Definition of ``Activities in the Interstate or Foreign
Commerce of the United States''.
Activities Involving United States Persons Located in the United
States
(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
[[Page 12864]]
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 United
States person within the meaning of this part.
(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.
Activities of Controlled in Fact Foreign Subsidiaries, Affiliates, and
Other Permanent Foreign Establishments
(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.
Activities in United States Commerce
(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.
Activities Outside 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 ancillary services
if they are provided to a controlled foreign subsidiary, affiliate, or
other permanent foreign establishment primarily for its own use rather
than for the use of a third person. These typically include financial,
accounting, legal,transportation, and other services, whether provided
by a domestic concern or an unrelated entity.
(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 will not
cause the underlying transaction to be in United States commerce. By
contrast, where a domestic concern, on behalf of its controlled foreign
subsidiary, gives a guaranty of performance to a foreign country
customer, that is a service provided to the customer and, as such,
brings that subsidiary's transaction with the customer into United
States commerce. Similarly, architectural or engineering services
provided by a
[[Page 12865]]
domestic concern in connection with its controlled foreign subsidiary's
construction project in a third country are services passed through to
the subsidiary's customer and, as such, bring that subsidiary's foreign
transaction into United States commerce.
General
(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.
Letters of Credit
(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 Sec. 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.
Examples of Activities in the Interstate or Foreign Commerce of the
United States
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.
United States Person Located in the United States
(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.
Foreign Subsidiaries, Affiliates, and Other Permanent Foreign
Establishments of Domestic Concerns
(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
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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) ``Intent''. (1) This part prohibits a United States person from
taking or knowingly agreeing to take certain specified actions with
intent to comply with, further, or support an unsanctioned foreign
boycott.
(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 this part. 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
comply with, further,or support an unsanctioned foreign boycott.
Accordingly, a person who inadvertently, without boycott intent, takes
a prohibited action, does not commit any violation of this part.
(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.
Examples of ``Intent''
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
[[Page 12867]]
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 the possibilities in X, A
concludes that the market does not justify the move. A is aware that
if it did open a plant in X, Y might object because of Y's boycott
of X. However Y's possible objection is not a reason for A's
decision not to open a plant in X.
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 is on boycotting country Y's blacklist. In
an attempt to secure its removal from the blacklist, A wishes to
supply to Y information which demonstrates that A does at least as
much business in Y and other countries engaged in a boycott of X as
it does in X. 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 furnish the information, because in doing so it has no
intent to comply with, further, or support Y's boycott.
(x) 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 betaken with intent to comply with Y's
boycott.
(Note: Example (ix) is distinguishable from (x), because in (ix)
A is not responding to any boycott request or requirement. Instead,
on its own initiative, it is supplying information to demonstrate
non-discriminatory conduct as between X and Y without any intent to
comply with, further, or support Y's boycott.)
Sec. 760.2 Prohibitions.
(a) Refusals to do business.
Prohibition Against Refusals To Do Business
(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 or cannot comply with such a
clause. (But see Sec. 760.4 of this part on ``Evasion.'')
(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
[[Page 12868]]
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 Sec. 760.3(c) of this part 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.
Examples of Refusals and Agreements To Refuse To Do Business
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.
Refusals To Do Business
(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 first time, A receives an order for its products from boycotting
country Y. Knowing that B is on the blacklist of Y, A arranges with
company C, a non-blacklisted U.S. insurer, to insure the shipment of
its goods to Y.
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,
[[Page 12869]]
because this requirement is imposed on all suppliers whether they
are blacklisted or not. (But see Sec. 760.4 of this part on
``Evasion'').
(xiii) A, a U.S. engineering and construction company, contracts
with a government agency in boycotting country Y to perform a
variety of services in connection with the construction of a large
industrial facility in Y. Pursuant to this contract, A analyzes the
market of prospective suppliers, compiles a suggested bidders list,
analyzes the bids received, and makes recommendations to the client.
The client independently selects and awards the contract to supplier
C for boycott reasons. All of A's services are performed without
regard to Y's blacklist or any other boycott considerations, and are
the type of services A provides clients in both boycotting and non-
boycotting countries.
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 Sec. 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 Sec. 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 the vessel eligibility certificate is a common
requirement for non-boycott purposes.
(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.
Agreements To Refuse To Do Business
(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, and A's bid makes no commitment regarding not dealing
with certain companies. A's bid in response to the tender is
accepted.
At the point when A's bid is accepted, A has agreed to refuse to
do business with blacklisted persons, because the terms of Y's
tender are part of the contract between Y and A.
(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.
[[Page 12870]]
(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
components or services of blacklisted companies in the manufacture
of its appliances.
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) Discriminatory actions.
Prohibition Against Taking Discriminatory Actions
(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.
Examples of Discriminatory Actions
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.
[[Page 12871]]
Such a certification conveys no statement about any person's
religion and, thus, does not come within this prohibition.
(c) Furnishing information about race, religion, sex, or national
origin.
Prohibition Against Furnishing Information About Race, Religion, Sex,
or National Origin
(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.
Examples of the Prohibition Against Furnishing Discriminatory
Information
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 president is. The information is sought for purposes
of enforcing Y's boycott against country X, and A knows or has
reason to know that the information is sought for that reason.
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) Furnishing information about business relationships with
boycotted countries or blacklisted persons.
Prohibition Against Furnishing Information About Business Relationships
With Boycotted Countries or Blacklisted Persons
(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 such as annual reports, disclosure
statements concerning securities, catalogs, promotional brochures, and
trade and business handbooks. Such information may also appear in
specifications or statements of experience and qualifications.
(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
[[Page 12872]]
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.
Examples Concerning Furnishing of Information
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
[[Page 12873]]
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 business relationships with or in a boycotted
country.
(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. This interpretation
became effective on June 22, 1978.
(e) Information concerning association with charitable and
fraternal organizations.
Prohibition Against Furnishing Information About Associations With
Charitable and Fraternal Organizations
(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.
Examples of Prohibition Against Furnishing Information About
Associations With Charitable or Fraternal Organizations
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) Letters of credit.
Prohibition Against Implementing Letters of Credit Containing
Prohibited Conditions or Requirements
(1) No United States person may pay, honor, confirm, or otherwise
implement a letter of credit which contains a condition or requirement
compliance with which is prohibited by this part, nor shall any United
States person, as a result of the application of this section, be
obligated to pay, honor or otherwise implement such a letter of credit.
(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.
Letters of Credit to Which This Section Applies
(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
[[Page 12874]]
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.
Implementation of Letters of Credit in the United States
(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.
Implementation of Letters of Credit Outside the United States
(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.
Examples of the Prohibition Against Implementing Letters of Credit
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.
Implementation of Letters of Credit in United States Commerce
(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 transaction outside U.S. commerce,
because it calls for documents indicating shipment of foreign-origin
goods. The presumption of non-U.S. commerce may be rebutted by facts
showing that A could reasonably conclude that the underlying
transaction involves shipment of U.S.-origin goods or goods from the
U.S.
Prohibition Against Implementing Letters of Credit
(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
[[Page 12875]]
assist in, this endeavor. A could then pay or otherwise implement
the revised letter of credit, so long as the original prohibited
language 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) On November 1, 1977, 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 implement the letter of credit, but after June 21, 1978,
may accept only a positive certificate of origin as satisfactory
documentation. (See Sec. 760.3(b) of this part on ``Import and
Shipping Document Requirements.'')
(vii) Same as (vi), except that U.S. company B has a contract
with Y to supply a certain quantity of goods each month over a two-
year period. B's contract was entered into on May 15, 1977, and thus
qualifies for grace period treatment until December 31, 1978. Each
month, Y causes a letter of credit to be opened in favor of B in
order to effect payment. Such letters of credit call for negative
certificates of origin.
A may accept negative certificates of origin in fulfillment of
the terms of the letter of credit through December 31, 1978, because
the underlying contract is entitled to a grace period through that
date. (See Sec. 760.8 of this part on ``Grace Period.'')
(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 that paragraph (ix) of this
section does 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. The foreign bank asks
U.S. bank A to advise and confirm the letter of credit, which it
forwards to A.
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.
Sec. 760.3 Exceptions to prohibitions.
(a) Import requirements of a boycotting country.
Compliance With Import Requirements of a Boycotting Country
(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 Sec. 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.'')
Examples of Compliance With Import Requirements of a Boycotting Country
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 usually
include some component parts produced in X.
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
[[Page 12876]]
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. (NOTE: After June 21,
1978, 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 in to 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) Shipment of goods to a boycotting country.
Compliance With Requirements Regarding the Shipment of Goods to a
Boycotting Country
(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 carrier of a boycotted
country means a carrier which flies the flag of a boycotted country or
which is owned, chartered, leased, or operated by a boycotted country
or by nationals or residents of a boycotted country.
Examples of Compliance With the Shipping Requirements of a Boycotting
Country
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.
(c) Import and shipping document requirements.
Compliance With Import and Shipping Document Requirements of a
Boycotting Country
(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 of the carrier;
(iii) The route of the shipment;
(iv) The name of the supplier of the shipment; and
(v) The name of the provider of other services.
(2) After June 21, 1978, all such information must be stated in
positive, non-blacklisting, non-exclusionary terms except for
information with respect to the names 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 purpose of this delayed effective date, which is
provided by section 4A(a)(2)(B) of the Export Administration Act of
1969, as amended, is to allow time for persons to adjust their
practices to the use of import and shipping documentation stated in
positive rather than negative terms.
Examples of Compliance With 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) 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.
Until June 21, 1978, A may comply with such import requirements
in the terms requested. After June 21, 1978, 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) On February 1, 1978, A, a U.S. distributor, enters into a
two-year contract with boycotting country Y to make monthly
shipments of goods to Y. A clause in the contract requires that all
shipments into the
[[Page 12877]]
country must be accompanied by a certification that the goods did
not originate in X, a country boycotted by Y.
A may supply such a negative certification until June 21, 1978.
After that date, A may state the origin of the goods on the shipping
or import documents in positive terms only.
(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.
Until June 21, 1978, A may furnish the information required in
the terms requested. After June 21, 1978, 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.''
Until June 21, 1978, A may furnish the information required in
the terms requested. After June 21, 1978, 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.
Until June 21, 1978, A may furnish the information required in
the terms requested. After June 21, 1978, A may not agree to supply
a certification that the carrier is not ``blacklisted'' but may
certify the name of the carrier in positive terms only.
(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.
(xiii) A, a U.S. exporter, sells some of its products to
boycotting country Y. A foreign bank located in Y opens a letter of
credit to pay for the goods. The letter of credit requires that A
supply documentation certifying that ``the goods are not
manufactured in boycotted country X.''
A may make the required certification until June 21, 1978,
because import and shipping document requirements of a boycotting
country may be reflected in letters of credit.
(d) Compliance with unilateral selection.
Compliance With Unilateral and Specific Selection
(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 an insignificant part of the services be performed
within the boycotting country, and 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
uniqueness of design or appearance or 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.
Unilateral and Specific Character of the Selection
(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 unilateral, and
compliance with that selection by a United States person does not come
within this exception.
(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.
Selection To Be Made by Boycotting Country Resident
(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
[[Page 12878]]
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.
Note to paragraph (d)(8) of this section: 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.
Duty of Inquiry
(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.
Selection of Services
(13) This exception applies only to compliance with selections of
certain types of suppliers of services-carriers, insurers, and
suppliers of services to be performed ``within the boycotting
country.'' Services to be performed wholly within the United States or
wholly within any country other than the boycotting country are not
covered.
(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.
Selection of Goods
(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.
General
(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.
Examples of Compliance With a Unilateral Selection
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.
Specific and Unilateral Selection
(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
[[Page 12879]]
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.
(Note: 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 with the requisite intent
to comply with the boycott.)
(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.
Examples of Boycotting Country Buyer
(The factors in determining whether a United States person is a
``bona fide resident'' of a boycotting country are the same as in
paragraph (g) of this section on ``Compliance with Local Law.'' See
also the examples in that section.)
(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.
(Note: 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.
(As noted above, unilateral selections 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.)
(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.
Examples of Suppliers of Services
(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.
[[Page 12880]]
(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.
Examples of Specifically Identifiable Goods
(The test of what constitutes ``specifically identifiable goods''
under this exception also applies to the term ``specifically
identifiable goods'' as used in paragraph (g) of this section on
``Compliance with Local Law.'')
(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.
Examples of Discrimination on Basis of Race, Religion, Sex, or National
Origin
(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.
[[Page 12881]]
(e) Shipment and transshipment of exports pursuant to a boycotting
country's requirements.
Compliance With a Boycotting Country's Requirements Regarding Shipment
and Transshipment of Exports
(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.
Examples of Compliance With a Boycotting Country's Requirements
Regarding Shipment or Transshipment of Exports
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) Immigration, passport, visa, or employment requirements of a
boycotting country.
Compliance With Immigration, Passport, Visa, or Employment Requirements
of a Boycotting Country
(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 United States individual means
a person who is a resident or national of the United States. Family
means immediate family members, including parents, siblings, spouse,
children, and other dependents living in the individual's home.
(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.
[[Page 12882]]
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.
Examples of Compliance With Immigration, Passport, Visa, or Employment
Requirements of a Boycotting Country
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,
sex, or national origin, but is merely transmitting information
furnished by its individual employees.
(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 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) Compliance with local law.
(1) This exception contains two parts. The first covers compliance
with local law with respect to a United States person's activities
exclusively within a foreign country; the second covers compliance with
local import laws by United States persons resident in a foreign
country. Under both parts of this exception, local laws are laws of the
host country, whether derived from statutes, regulations, decrees, or
other official sources having the effect of law in the host country.
This exception is not available for compliance with presumed policies
or understandings of policies unless those policies are reflected in
official sources having the effect of law.
(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.
Examples of 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 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 the
effective date of this part.
(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
[[Page 12883]]
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 the effective date of
this part.
(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) Activities exclusively within a foreign country.
(1) Any United States person who is a bona fide resident of a
foreign country, including a boycotting country, may comply or agree to
comply with the laws of that country with respect to his activities
exclusively within that country. These activities include:
(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.
Examples of Permissible Compliance With Local Law With Respect to
Activities Exclusively Within a Foreign Country
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.
Activities Exclusively Within a Foreign Country
(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
[[Page 12884]]
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.
Discrimination Against United States Persons
(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.
(Note: 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) Compliance with local import law.
(1) Any United States person who is a bona fide resident of a
foreign country, including a boycotting country, may, in importing
goods, materials or components into that country, comply or agree to
comply with the import laws of that country, provided that:
(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 (c) of this section on ``Compliance
With Unilateral 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, or reprocessed into another product to be manufactured
for another; or
(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.
[[Page 12885]]
Examples of Permissible Compliance With Local Import Law
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.
Compliance by a Bona Fide Resident
(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.
(Note: 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.
(Note: 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.)
Specifically Identifiable Goods
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.''
Imports for U.S. Person's Own Use
(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 fide resident of boycotting country Y. In
ordering automobiles from time to time for purposes of stocking its
inventory, A purchases from U.S. manufacturer B, but not U.S.
manufacturer C, because C is blacklisted. Retail sales are
subsequently made from this inventory.
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.
[[Page 12886]]
(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.
For Use Within Boycotting Country
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.
Sec. 760.4 Evasion.
(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 Sec. 760.3(a) through (g) of this
part 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 21, 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 21, 1978 is presumed not to constitute evasion if the provision
had been customarily used by that person prior to January 21, 1978.
(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.
Examples
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 and routinely supplying
negative certificates of origin. A is aware that the furnishing of
negative certificates of origin will be prohibited after June 21,
1978 and, therefore, arranges to have all future shipments run
through a foreign corporation in a third country which will affix
the necessary certification 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 hand calculators to
boycotting country Y for a number of years and routinely supplies
negative certificates of origin. A is aware that the furnishing of
such negative certificates will be prohibited after June 21, 1978. A
thereupon ceases all direct sales to Y, and instead arranges to make
all future sales to distributor B in a third country. 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 would otherwise have
been subject to this part beyond the reach of this part.
[[Page 12887]]
(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 the effective date
of this part, A 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 the effective date of this
part.
A's action is presumed not to constitute evasion, because use of
this contractual arrangement was customary for A prior to the
effective date of this part.
(xii) A, a U.S. company, has a contract to supply automobile
sub-assembly units to boycotting country Y. Shortly after the
effective date of this part, 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 whatever 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 suggests to B that the beneficiary
should be changed to C, a shell corporation in non-boycotting
country M. The beneficiary is changed accordingly.
A's action constitutes evasion of this part, because the
arrangement is a device to mask prohibited activity on A's part.
(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
its action is part of a device to mask prohibited activity on A's
part.
(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 favor of B so that B might perform
under its long-term contract with boycotting country Y. Under the
terms of the letter of credit, B is required to certify that none of
its suppliers is blacklisted. A knows that it cannot implement a
letter of credit with this condition, so it tells B to negotiate the
elimination of this requirement from the letter of credit and
instead supply the certification to Y directly.
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.
Sec. 760.5 Reporting requirements.
(a) Scope of reporting requirements.
(1) A United States person who receives a request to take any
action which has the effect of furthering or supporting a restrictive
trade practice or boycott fostered or imposed by a foreign country
against a country friendly to the United States or against any United
States person must report such request to the Department of Commerce in
accordance with the requirements of this section. Such a request may be
either written or oral and may include a request to furnish information
or enter into or implement an agreement. It may also include a
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. Such a request shall be reported
regardless of whether the action requested is prohibited or permissible
under this part, except as otherwise provided by this section.
(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 Sec. 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 Sec. 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 Sec. 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 Sec. 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,
[[Page 12888]]
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 guidelines in areas of inherent uncertainty; and because of the
Department's commitment to minimize paperwork and reduce the cost of
reporting where it will not impair the Department's ability to continue
to monitor foreign boycotts, the following specific requests are not
reportable:
(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) Manner of reporting. (1) Each reportable request must be
reported. However, if more than one document (such as an invitation to
bid, purchase order, or letter of credit) containing the same boycott
request is received as part of the same transaction, only the first
such request need be reported. Individual shipments against the same
purchase order or letter of credit are to be treated as part of the
same transaction. Each different boycott request associated with a
given transaction must be reported, regardless of how or when the
request is received.
(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, may
report on behalf of the exporter; and a bank, if authorized, may report
on behalf of the beneficiary of a letter of credit. If a person
designated to report a request received by another receives an
identical request directed to him in connection with the same
transaction, he may file one report on behalf of himself and the other
person.
(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 6099C, 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 received
through June 30, 1979, must be postmarked by the last day of the month
following the month in which the request was received. Thereafter, each
submission 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
received through June 30, 1979, must be postmarked by the last day of
the second month following the month in which the request was received.
Thereafter, each submission 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 BXA-621P, Report of Restrictive
Trade Practice or Boycott Request Single Transaction (revised 10-89))
or on a multiple transaction form (Form BXA-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
[[Page 12889]]
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) Disclosure of information. (1) Reports of requests received on
or after October 7, 1976, as well as any accompanying documents filed
with the reports, have been and will continue to be made available for
public inspection and copying, except for certain proprietary
information. With respect to reports of requests received on or after
August 1, 1978, if the person making the report certifies that a United
States person to whom the report relates would be placed at a
competitive disadvantage because of the disclosure of information
regarding the quantity, description, or value of any articles,
materials, and supplies, including related technical data and other
information, whether contained in a report or in any accompanying
document(s), such information will not be publicly disclosed except
upon failure by the reporting entity to edit the public inspection copy
of the accompanying document(s) as provided by paragraph (c)(2) of this
section, unless the Secretary of Commerce determines that the
disclosure would not place the United States person involved at a
competitive disadvantage or that it would be contrary to the national
interest to withhold the information. In the event the Secretary of
Commerce considers making such a determination concerning competitive
disadvantage, appropriate notice and an opportunity for comment will be
given before any such proprietary information is publicly disclosed. In
no event will requests of reporting persons to withhold any information
contained in the report other than that specified in this paragraph be
honored.
(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 BXA 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.
Examples
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
[[Page 12890]]
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.
[[Page 12891]]
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 the effective date of the regulations,
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 the effective date of the regulations, 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
if it was received after January 21, 1978, 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
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.
(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.
Supplement No. 1 to Part 760--Interpretations
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.1
\1\ The Department originally issued this interpretation
pursuant to the Export Administration Amendments Act of 1979 (Public
Law 95-52) and the regulations on restrictive trade practices and
boycotts (15 CFR part 369) published on January 25, 1978 (43 FR
3508) and contained in the 15 CFR edition revised as of January 1,
1979.
---------------------------------------------------------------------------
I. Certifications
Sec. 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
unsanctioned foreign boycott. (Sec. 760.2(d)(5) of this part.)
This prohibition does not apply to the furnishing of normal
business information in a commercial context. ( Sec. 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. (Sec. 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. Certificate of origin. A certificate of origin is to be
issued by the supplier or exporting company and authenticated by the
exporting country, attesting that the goods exported to the
boycotting country are of purely indigenous origin, and stating the
name of the factory or the manufacturing company. To the extent that
the goods as described on the certificate of origin are not solely
and exclusively products of their country of origin indicated
thereon, a declaration must be appended to the certificate of origin
giving the name of the supplier/manufacturer and declaring:
``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:
Country of Origin and Percentage of Value of Parts or Components
Relative to Total Shipment
1.---------------------------------------------------------------------
2.---------------------------------------------------------------------
3.---------------------------------------------------------------------
Dated:-----------------------------------------------------------------
Signature--------------------------------------------------------------
Sworn to before me, this ________ day of ____________, 19 ____.
Notary Seal.''
Interpretation
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 Sec. 760.3(c) of this part for compliance
with the import and shipping document requirements of a boycotting
country. See Sec. 760.3(c) of this part and examples (i) and (ii)
thereunder.
B. Shipping certificate. A certificate must be appended to the
bill of lading stating: (1) Name of vessel; (2) Nationality of
vessel; and (3) Owner of vessel, and declaring:
``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.''
Interpretation
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
[[Page 12892]]
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
Sec. 760.3(b) of this part for compliance with the import and
shipping document requirements of a boycotting country. See
Sec. 760.3(b) of this part 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 part 760. See Sec. 760.2(f) of this part, 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
Sec. 760.3(b) of this part, 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 nonblacklisted 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 Sec. 760.2(d) of this part
unless it is clear from all the facts and circumstances that the
certification is not required for a boycott reason. See
Sec. 760.2(d)(3) and (4) of this part. However, in accordance with
the exception contained in Sec. 760.3(c) of this part for compliance
with the import and shipping document requirements of a boycotting
country, such a United States person may furnish such a
certification until June 21, 1978.
C. Insurance certificate. A certificate must be appended to the
insurance policy stating: (1) Name of insurance company; (2) Address
of its principal office; and (3) Country of its incorporation, and
declaring:
``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.''
Interpretation
It is the Department's position that furnishing the name of the
insurance company falls within the exception contained in
Sec. 760.3(c) of this part for compliance with the import and
shipping document requirements of a boycotting country. See
Sec. 760.3(c)(1)(v) of this part 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 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 Sec. 760.2(d)(1)(i) of this part.
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 part 760. See Sec. 760.2(f) of this part, 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 Sec. 760.3(c) of this part, 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 Sec. 760.2(d) of this part unless it is clear from all the
facts and circumstances that the certification is not required for a
boycott reason. See Sec. 760.2(d) (3) and (4) of this part. However,
in accordance with the exception contained in Sec. 760.3(c) of this
part for compliance with the import and shipping document
requirements of a boycotting country, such a U.S. person may furnish
such a certification until June 21, 1978.
II. Contractual Clauses
The new contractual requirements and the Department's
interpretation of the applicability of part 760 thereto are as
follows:
A. Contractual clause regarding import laws of boycotting
country. ``In connection with the performance of this contract the
Contractor/Supplier acknowledges that the import and customs laws
and regulations of the boycotting country shall apply to the
furnishing and shipment of any products or components thereof to the
boycotting country. The Contractor/Supplier specifically
acknowledges that the aforementioned import and customs laws and
regulations of the boycotting country prohibit, among other things,
the importation into the boycotting country of products or
components thereof: (1) Originating in the boycotted country; (2)
Manufactured, produced, or furnished by companies organized under
the laws of the boycotted country; and (3) Manufactured, produced,
or furnished by nationals or residents of the boycotted country.''
Interpretation
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 Part 760. See Sec. 760.2(a)(5) of this part 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 part 760 of
this part. See Sec. 760.2(a)(5) of this part 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
Sec. 760.3(a) of this part for compliance with the import
requirements of a boycotting country. See Sec. 760.3(a) of this part
and example (ii) thereunder.
The Department notes that, after June 21, 1978, 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 boycotting country. See Sec. 760.3(c) of this
part and examples (i), (ii), and (iii) thereunder, and Sec. 760.3(a)
of this part and example (ii) thereunder.
B. Contractual clause regarding 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.''
Interpretation
It is the Department's position that an agreement, such as the
one set out above, falls within the exception contained in
Sec. 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 Sec. 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 Sec. 760.3(d) of this part must be
observed.
Supplement No. 2 to Part 760--Interpretation
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
[[Page 12893]]
Administration Act of 1979, as amended (50 U.S.C. app. 2407) and
part 760 of the EAR,1 as follows:
\1\ The Department originally issued this interpretation on
April 21, 1978 (43 FR 16969) pursuant to the Export Administration
Amendments Act of 1977 (Public Law 95-52) and the regulations on
restrictive trade practices and boycotts (15 CFR part 369) published
on January 25, 1978 (43 FR 3508) and contained in the 15 CFR edition
revised as of January 1, 1979.
---------------------------------------------------------------------------
(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
Sec. 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 Sec. 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
Sec. 760.2(d) of this part. Moreover, under these circumstances,
receipt of requests for such shipping and insurance certificates
from Saudi Arabia is 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 Sec. 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
Sec. 760.2(d) of this part, and receipt of requests for such
certifications is 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 furnish such a self-certification. For example,
if an exporter-beneficiary of a letter of credit asks his component
suppliers to self-certify, such a request will be considered as
evidence of his refusal to do business with those component
suppliers who cannot or will not furnish such a self-certification.
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.
Supplement No. 3 to Part 760--Interpretation
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.
Supplement No. 4 to Part 760--Interpretation
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) of this part 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 (1) acquired
without reference to a specific order, and (2) further manufactured,
incorporated 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
[[Page 12894]]
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.
Supplement No. 5 to Part 760--Interpretation
A. Permissible Furnishing of Information
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 Sec. 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.
B. Availability of the Compliance With Local Law Exception to
Establish a Foreign Branch
Section 760.3(f) of this part, 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
includes the creation and registration of foreign operations (i.e.,
the chairman of the board cannot be flown in to answer boycott
questions unless the chairman of the board is the corporate official
who ordinarily goes into a country to handle foreign registrations).
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.
Supplement No. 6 to Part 760--Interpretation
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) Goods of boycotted country origin prohibited. This term is
very common in letters of credit from Kuwait and may also appear
from time-to-time in invitations to bid, contracts, or other trade
documents. It imposes a condition or requirement compliance with
which is prohibited, but permitted by an exception under the
Regulations (see Sec. 760.2(a) and Sec. 760.3(b) of this part). It
is reportable by those parties to the letter of credit or other
transaction that are required to take or refrain from taking some
boycott related action by the request. Thus the bank must report the
request because it is a term or condition of the letter of credit
that it is handling, and the exporter-beneficiary must report the
request because the exporter determines the origin of the goods. The
freight forwarder does not have to report this request because the
forwarder has no role or obligation in this part of the transaction.
See Sec. 760.5, examples (xiii)-(xv) of this part.
(b) No six-pointed stars may be used on the goods, packing or
cases. This term appears from time-to-time on documents from a
variety of countries. The Department has taken the position that the
six-pointed star is a religious symbol. See Sec. 760.2(b), example
(viii) of this part. Agreeing to this term is prohibited by the
Regulations and not excepted because it constitutes an agreement to
furnish information about the religion of a U.S. person. See
Sec. 760.2(c) of this part. If a person proceeds with a transaction
in which this is a condition at any stage of the transaction, that
person has agreed to the condition in violation of the Regulations.
It is not enough to ignore the condition. Exception must
affirmatively be taken to this term or it must be stricken from the
documents of the transaction. It is reportable by all parties to the
transaction that are restricted by it. For example, unlike the
situation described in (a) above, the freight forwarder would have
to report this request because his role in the transaction would
involve preparation of the packing and cases. The bank and exporter
would both have to report, of course, if it were a term in a letter
of credit. Each party would be obligated affirmatively to seek an
amendment or deletion of the term.
[[Page 12895]]
(c) Neither goods nor packaging shall bear any symbols
prohibited in the boycotting country. This term appears from time-
to-time in letters of credit and shipping documents from Saudi
Arabia. In our view, it is neither prohibited, nor reportable
because it is not boycott-related. There is a wide range of symbols
that are prohibited in Saudi Arabia for a variety of reasons, many
having to do with that nation's cultural and religious beliefs. On
this basis, we do not interpret the term to be boycott related. See
Sec. 760.2(a)(5) and Sec. 760.5(a)(5)(v) of this part.
Supplement No. 7 to Part 760--Interpretation
Prohibited Refusal To Do Business
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 Sec. 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 Sec. 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
Sec. 760.3(c) of this part. 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 United States person may also provide certain services in
advance of the unilateral selection by the boycotting country, such
as the compilation of lists of qualified suppliers, so long as such
services are customary to the type of business the United States
person is engaged in, and the services rendered are completely non-
exclusionary in character (i.e., the list of qualified suppliers
would have to include the supplier whose goods had previously been
rejected by the boycotting country, if they were fully qualified).
See Sec. 760.2(a)(6) of this part for a discussion of the
requirements for the provision of these services.
The Department wishes to emphasize that the unilateral selection
exception in Sec. 760.3(d) of this part will be construed narrowly,
and that all its requirements and conditions must be met, including
the following:
--Discretion for the selection must be exercised by a boycotting
country; or by a national or resident of a boycotting country;
--The selection must be stated in the affirmative specifying a
particular supplier of goods;
--While a permissible selection may be boycott based, if the United
States person 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
person may not comply under any circumstances.
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 Sec. 760.4 of this part, unless adopted prior to
January 18, 1978. See Sec. 760.4(d) of this part.
Supplement No. 8 to Part 760--Interpretation
Definition of Interstate or Foreign Commerce of the United States
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 Sec. 760.1(d)(13) of this part.
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 Sec. 760.4
of this part.
Supplement No. 9 to Part 760--Interpretation
Activities Exclusively Within a Boycotting Country--Furnishing
Information
Sec. 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'' Sec. 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 Sec. 760.3(f) of this part, and
that the information to be provided is required by the laws or
regulations of the boycotting country, as also defined in
Sec. 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 Sec. 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
[[Page 12896]]
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 that the information may relate to a
transaction that began outside the boycotting country is not
material. The availability of the exception will be judged based on
the activity of the bona fide resident within the country. If the
resident provides that information of his or her own knowledge, and
provides it to appropriate parties located exclusively within the
country, the exception permits the information to be furnished.
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.
Supplement No. 10 to Part 760--Interpretation
(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 contain no
foreign parts.
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 Sec. 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 Sec. 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.
Supplement No. 11 to Part 760--Interpretation
Definition of Unsolicited Invitation to Bid
Sec. 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
[[Page 12897]]
period of time before the issuance of the invitation.
Under Sec. 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 (Sec. 760.5(a)(6) of this
part).
Supplement No. 12 to Part 760--Interpretation
The Department has taken the position that a U.S. person as
defined by Sec. 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 Sec. 760.2(d) of this part.
Example (v) under Sec. 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 recently
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 such statements are provided by its
commercial agent or representative, even when such statements are
made with the full knowledge of the U.S. person.
Nature of the requirement. For a boycott-related commercial
registration requirement to fall within the coverage of this
interpretation it must have the following characteristics:
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 Sec. 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.
Supplement No. 13 to Part 760--Interpretation
Summary
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 Sec. 760.3(c) of this part, 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.
Regulatory Background
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 Sec. 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 Sec. 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 Sec. 760.3(c) of this part 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 Sec. 760.3(d) (4) and (5) of this part.
Analysis of the New Contractual Language
The Office of Antiboycott Compliance has learned of the
introduction of a new 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:
Boycott of Boycotted Country
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
[[Page 12898]]
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 Sec. 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 Sec. 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 Sec. 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
Sec. 760.3(c) of this part. 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 buyer and
would violate Sec. 760.2(a) of this part.
Supplement No. 14 to Part 760--Interpretation
(a) Contractual clause concerning import, customs and boycott
laws of a boycotting country.
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 Sec. 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 Sec. 760.2(a) of this part, examples (v)
and (vi) under ``Agreement 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
(Sec. 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
Sec. 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 Sec. 760.6(a)(1) of this part.
(b) Letter of credit terms removing blacklist certificate
requirement if specified vessels used.
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
Sec. 760.2(a) of this part, example (vii)
[[Page 12899]]
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 the letter of
credit imposes a blacklist certificate requirement, then that other
term would be reportable.
(c) Information not related to a particular transaction in U.S.
commerce.
Under Sec. 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. Sec. 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 Sec. 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
Sec. 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.
Supplement No. 15 to Part 760--Interpretation
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 Sec. 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 furnishing prohibited
information under the EAR and that the transmission of prohibited
information with the requisite boycott intent is a furnishing of
information violative of the EAR. At the same time, however, the
circumstances relating to the transmitting party's involvement will
be carefully considered in determining whether that party intended
to comply with, further, or support an unsanctioned foreign boycott.
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 (Sec. 760.2(c) of this part), deal explicitly with
transmitting information. These examples (Sec. 760.2(c) of this
part, example (v), and Sec. 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); Sec. 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 (Sec. 760.5, example (xiv) of this
part), which also concerns a permissible transmission of
[[Page 12900]]
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 Sec. 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.
Supplement No. 16 to Part 760--Interpretation
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.
PART 762--RECORDKEEPING
Sec.
762.1 Scope.
762.2 Records to be retained.
762.3 Records exempt from recordkeeping requirements.
762.4 Original records required.
762.5 Reproduction of original records.
762.6 Period of retention.
762.7 Producing and inspecting records.
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 762.1 Scope.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C.
(a) Transactions subject to this part. The recordkeeping provisions
of this part apply to the following transactions:
(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 Secs. 734.2(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) Persons subject to this part. Any person subject to the
jurisdiction of the United States who, as principal or agent (including
a forwarding agent), participates in any transaction described in
paragraph (a) of this section, and any person in the United States or
abroad who is required to make and maintain records under any provision
of the EAR, shall keep and maintain all records described in Sec. 762.2
of this part that are made or obtained by that person and shall produce
them in a manner provided by Sec. 762.6 of this part.
Sec. 762.2 Records to be retained.
(a) Records required to be retained. The records required to be
retained under this part 762 include the following:
(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 Sec. 762.1(a) of this part, which are made or obtained by
a person described in Sec. 762.1(b) of this part.
(b) Records retention references. Paragraph (a) of this section
describes records that are required to be retained. Other parts,
sections, or supplements of the EAR which require the retention of
records or contain recordkeeping provisions, include, but are not
limited to the following:
(1) Part 736, General Prohibitions;
(2) Sec. 732.6, Steps for other requirements;
(3) Sec. 740.1, Introduction (to License Exceptions);
(4) Sec. 742.12(a)(3), High Performance Computers;
(5) Supplement No. 3 to part 742 High Performance Computers,
Safeguards and Related Information;
(6) Sec. 740.7, Humanitarian donations (NEED);
(7) Sec. 748.4(a), Disclosure and substantiation of facts on
license applications;
[[Page 12901]]
(8) Sec. 748.6, General instructions for license applications;
(9) Sec. 748.9, Support documents for license applications;
(10) Sec. 748.10, Import and End-user Certificates;
(11) Sec. 748.11, Statement by Ultimate Consignee and Purchaser;
(12) Sec. 748.13, Delivery Verification (DV);
(13) Sec. 748.2(c), Obtaining forms; mailing addresses;
(14) Sec. 750.7, Issuance of license;
(15) Sec. 750.8, Revocation or suspension of license;
(16) Sec. 750.9, Duplicate licenses;
(17) Sec. 750.10, Transfer of licenses for export;
(18) Sec. 752.7, Direct shipment to customers;
(19) Sec. 752.9, Action on SCL applications;
(20) Sec. 752.10, Changes to the SCL;
(21) Sec. 752.11, Internal Control Programs;
(22) Sec. 752.12, Recordkeeping requirements;
(23) Sec. 752.13, Inspection of records;
(24) Sec. 752.14, System reviews;
(25) Sec. 752.15, Export clearance;
(26) Sec. 754.4, Unprocessed western red cedar;
(27) Sec. 758.1(b)(3), Record and proof of agent's authority;
(28) Sec. 758.3, Shipper's Export Declaration;
(29) Sec. 758.6, Destination control statements;
(30) Sec. 760.6, Restrictive Trade Practices and Boycotts;
(31) Sec. 762.2, Records to be retained;
(32) Sec. 764.2, Violations;
(33) Sec. 764.5, Voluntary self-disclosure; and
(34) Sec. 766.10, Subpoenas.
Sec. 762.3 Records exempt from recordkeeping requirements.
(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) Parking 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;
and
(36) Sales summaries.
(b) [Reserved]
Sec. 762.4 Original records required.
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 Sec. 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 Sec. 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.
Sec. 762.5 Reproduction of original records.
(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 Sec. 762.2 of this
part, the regulated persons defined in Sec. 762.1 of this part may use
any photographic, 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:
(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) Requirements applicable to systems based on the storage of
digital images. For systems based on the storage of digital images, the
system must provide accessibility to any digital image in the system.
With respect to records of transactions, including those involving
restrictive trade practices or boycott requirements or requests. The
system must be able to locate and reproduce all records relating to a
particular transaction based on any one of the following criteria:
[[Page 12902]]
(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) Requirements applicable to a system based on photographic
processes. For systems based on photographic, photostatic, or miniature
photographic processes, the regulated person must maintain a detailed
index of all records in the system that is arranged in such a manner as
to allow immediate location of any particular record in the system.
Sec. 762.6 Period of retention.
(a) Five year retention period. All records required to be kept by
the EAR must be retained for five years from the latest of the
following times:
(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 Secs. 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) Destruction or disposal of records. If the Bureau of Export
Administration or any other 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 agency concerned. This prohibition applies to
records pertaining to voluntary disclosures made to BXA in accordance
with Sec. 765.5(c)(4)(ii) and other records even if such records have
been retained for a period of time exceeding that required by paragraph
(a) of this section.
Sec. 762.7 Producing and inspecting records.
(a) Persons located in the United States. Persons located in the
United States may be asked to produce records that are required to be
kept by any provision of the EAR, or any license, order, or
authorization issued thereunder and to make them available for
inspection and copying by any authorized agent, official, or employee
of the Bureau of Export Administration, the U.S. Customs Service, or
any other agency of the U.S. Government, without any charge or expense
to such agent, official, or employee. The Office of Export Enforcement
and the Office of Antiboycott Compliance encourage voluntary
cooperation with such requests. When voluntary cooperation is not
forthcoming, the Office of Export Enforcement and the Office of
Antiboycott Compliance are authorized to issue subpoenas for books,
records, and other writings. In instances where a person does not
comply with a subpoena, the Department of Commerce may petition a
district court to have a subpoena enforced.
(b) Persons located outside of the United States. Persons located
outside of the United States that are required to keep records by any
provision of the EAR or by any license, order, or authorization issued
thereunder shall produce all records or reproductions of records
required to be kept, and make them available for inspection and copying
upon request by an authorized agent, official, or employee of the
Bureau of Export Administration, the U.S. Customs Service, or a Foreign
Service post, or by any other accredited representative of the U.S.
Government, without any charge or expense to such agent, official or
employee.
PART 764--ENFORCEMENT AND PROTECTIVE MEASURES
Sec.
764.1 Introduction.
764.2 Violations.
764.3 Sanctions.
764.4 Reporting of violations.
764.5 Voluntary self-disclosure.
764.6 Protective administrative measures.
Supplement No. 1 to Part 764--Standard Terms of Orders Denying Export
Privileges
Supplement No. 2 to Part 764--Denied Persons List
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 764.1 Introduction.
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 Export Administration (BXA). This part also describes
criminal sanctions that may be imposed by a United States court and
other sanctions that are neither administrative nor criminal.
Information is provided on how to report and disclose violations.
Finally, this part identifies protective administrative measures that
BXA may take in the exercise of its regulatory authority.
Sec. 764.2 Violations.
(a) Engaging in prohibited conduct. No person may engage in any
conduct prohibited by or contrary to, or refrain from engaging in any
conduct required by, the EAA, the EAR, or any order, license or
authorization issued thereunder.
(b) Causing, aiding, or abetting a violation. No person may cause
or aid, abet, counsel, command, induce, procure, or permit the doing of
any act prohibited, or the omission of any act required, by the EAA,
the EAR, or any order, license or authorization issued thereunder.
(c) Solicitation and attempt. No person may solicit or attempt a
violation of the EAA, the EAR, or any order, license or authorization
issued thereunder.
(d) Conspiracy. No person may conspire or act in concert with one
or more persons in any manner or for any purpose to bring about or to
do any act that constitutes a violation of the EAA, the EAR, or any
order, license or authorization issued thereunder.
(e) Acting with knowledge of a violation. No person may order, buy,
remove, conceal, store, use, sell, loan, dispose of, transfer,
transport, finance, forward, or otherwise service, in whole or in part,
any item exported or to be exported from the United States, or that is
otherwise subject to the EAR, with knowledge that a violation of the
EAA, the EAR, or any order, license or authorization issued thereunder,
has occurred, is about to occur, or is intended to occur in connection
with the item.
(f) Possession with intent to export illegally. No person may
possess any item controlled for national security or foreign policy
reasons under sections 5 or 6 of the EAA:
(1) With intent to export 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.
(g) Misrepresentation and concealment of facts. (1) No person may
make any false or misleading representation, statement, or
[[Page 12903]]
certification, or falsify or conceal any material fact, either directly
to BXA, the United States Customs Service, or an official of any other
United States agency, or indirectly through any other person:
(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 or restrictive trade
practice or boycott request report, as defined in Sec. 760.6 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 BXA 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) Evasion. No person may engage in any transaction or take any
other action with intent to evade the provisions of the EAA, the EAR,
or any order, license or authorization issued thereunder.
(i) Failure to comply with reporting, recordkeeping requirements.
No person may fail or refuse to comply with any reporting or
recordkeeping requirement of the EAR or of any order, license or
authorization issued thereunder.
(j) License alteration. Except as specifically authorized in the
EAR or in writing by BXA, no person may alter any license,
authorization, export control document, or order issued under the EAR.
(k) Acting contrary to the terms of a denial order. No person may
take any action that is prohibited by a denial order. See
Sec. 764.3(a)(2) of this part.
Sec. 764.3 Sanctions.
(a) Administrative.\1\ Violations of the EAA, the EAR, or any
order, license or authorization issued thereunder are subject to the
administrative sanctions described in this section and to any other
liability, sanction, or penalty available under law. The protective
administrative measures that are described in Sec. 764.6 of this part
are distinct from administrative sanctions.
\1\ In the event that any part of the EAR is not under the
authority of the EAA, sanctions shall be limited to those provided
for by such other authority, but the provisions of this part and of
part 766 of the EAR shall apply insofar as not inconsistent with
that other authority.
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(1) Civil penalty. (i) A civil penalty not to exceed $10,000 may be
imposed for each violation, except that a civil penalty not to exceed
$100,000 may be imposed for each violation involving national security
controls imposed under section 5 of the EAA.
(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) Denial of export privileges. An order may be issued that
restricts the ability of the named persons to engage in export and
reexport transactions involving items subject to the EAR, or that
restricts access by named persons to items subject to the EAR. An order
denying export privileges may be imposed either as a sanction for a
violation specified in this part or as a protective administrative
measure described in Sec. 764.6(c) or (d) of this part. An order
denying export privileges may suspend or revoke any or all outstanding
licenses issued under the EAR to a person named in the denial order or
in which such person has an interest, may deny or restrict exports and
reexports by or to such person of any item subject to the EAR, and may
restrict dealings in which that person may benefit from any export or
reexport of such items. The standard terms of a denial order are set
forth in Supplement No. 1 to this part. A non-standard denial order,
narrower in scope, may be issued. Authorization to engage in actions
otherwise prohibited by a denial order may be given by the Office of
Exporter Services, in consultation with the Office of Export
Enforcement, following application by a person named in the denial
order or by a person seeking permission to deal with a named person.
(3) Exclusion from practice. Any person acting as an attorney,
accountant, consultant, freight forwarder, or in any other
representative capacity for any license application or other matter
before BXA may be excluded by order from any or all such activities
before BXA.
(b) Criminal.\2\ (1) General. Except as provided in paragraph
(b)(2) of this section, whoever knowingly violates or conspires to or
attempts to violate the EAA, the EAR, or any order or license issued
thereunder, shall be fined not more than five times the value of the
exports involved or $50,000, whichever is greater, or imprisoned not
more than five years, or both.
\2\ In the event that any part of the EAR is not under the
authority of the EAA, sanctions shall be limited to those provided
for by such other authority or by 18 U.S.C. 3571, a criminal code
provision that establishes a maximum criminal fine for a felony that
is the greater of the amount provided by the statute that was
violated, or an amount not more than $500,000 for an organization.
The Federal Sentencing Guidelines found in Sec. 2M5.1 of Appendix 4
to Title 18 of the United States Code apply, to the extent followed
by the court, to sentencing for convictions for violating the EAA.
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(2) Willful violations. (i) Whoever willfully violates or conspires
to or attempts to violate any provision of the EAA, the EAR, or any
order or license issued thereunder, with knowledge that the exports
involved will be used for the benefit of, or that the destination or
intended destination of the items involved is, any controlled country
or any country to which exports are controlled for foreign policy
purposes, except in the case of an individual, shall be fined not more
than five times the value of the export 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 10 years, or both.
(ii) Any person who is issued a license under the EAA or the EAR
for the export of any items to a controlled country and who, with
knowledge that such export 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 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 intent to export 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, 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
[[Page 12904]]
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) Other criminal sanctions. Conduct that constitutes a violation
of the EAA, the EAR, or any order, license or authorization issued
thereunder, or that occurs in connection with such a violation, may
also be prosecuted under other provisions of law, including 18 U.S.C.
371 (conspiracy), 18 U.S.C. 1001 (false statements), 18 U.S.C. 1341,
1343, and 1346 (mail and wire fraud), and 18 U.S.C. 1956 and 1957
(money laundering).
(c) Other sanctions. Conduct that violates the EAA, the EAR, or any
order, license or authorization issued thereunder, and other conduct
specified in the EAA may be subject to sanctions or other measures in
addition to criminal and administrative sanctions under the EAA or EAR.
These include, but are not limited to, the following:
(1) Statutory sanctions. Statutorily-mandated sanctions may be
imposed on account of specified conduct related to weapons
proliferation. Such statutory sanctions are not civil or criminal
penalties, but restrict imports and procurement (See section 11A of the
EAA, Multilateral Export Control Violations, and section 11C of the
EAA, Chemical and Biological Weapons Proliferation), or restrict export
licenses (See section 11B of the EAA, Missile Proliferation Violations,
and the Iran-Iraq Arms Non-Proliferation Act of 1992).
(2) Other sanctions and measures. (i) Seizure and forfeiture. Items
that have been, are being, or are intended to be, exported or shipped
from or taken out of the United States in violation of the EAA, the
EAR, or any order, license or authorization issued thereunder, are
subject to being seized and detained as are the vessels, vehicles, and
aircraft carrying such items. Seized items are subject to forfeiture.
(50 U.S.C. app. 2411(g); 22 U.S.C. 401.)
(ii) Cross-debarment. (A) The Department of State may deny licenses
or approvals for the export or reexport of defense articles and defense
services controlled under the Arms Export Control Act to persons
indicted or convicted of specified criminal offenses, including
violations of the EAA, or to persons denied export privileges by BXA or
another agency. (22 CFR 126.7(a) and 127.11(a).)
(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.)
Sec. 764.4 Reporting of violations.
(a) Where to report. If a person learns that an export control
violation of the EAR has occurred or may occur, that person may notify:
Office of Export Enforcement, Bureau of Export Administration,U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W., Room
H-4520, Washington, D.C. 20230, Tel: (202) 482-1208, Facsimile: (202)
482-0964
or, for violations of part 760 of the EAR:
Office of Antiboycott Compliance, Bureau of Export Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W., Room
H-6099C, Washington, D.C. 20230, Tel: (202) 482-2381, Facsimile: (202)
482-0913.
(b) Failure to report violations. Failure to report potential
violations may result in the unwarranted issuance of licenses or
exports without the required licenses to the detriment of the interests
of the United States.
(c) Reporting requirement distinguished. The reporting provisions
in paragraph (a) of this section are not ``reporting requirements''
within the meaning of Sec. 764.2(i) of this part.
Sec. 764.5 Voluntary self-disclosure.
(a) General policy. BXA strongly encourages disclosure to OEE if
you believe that you may have violated the EAR, or any order, license
or authorization issued thereunder. Voluntary self-disclosure is a
mitigating factor in determining what administrative sanctions, if any,
will be sought by OEE.
(b) Limitations.
(1) The provisions of this section do not apply to disclosures of
violations relating to part 760 of the EAR.
(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, create, confer, or grant any rights, benefits,
privileges, or protection enforceable at law or in equity by any
person, business, or entity in any civil, criminal, administrative, or
other matter.
(c) Information to be provided.
(1) General. Any person wanting to disclose information that
constitutes a voluntary self-disclosure should, in the manner outlined
below, initially notify OEE as soon as possible after violations are
discovered, and then conduct a thorough review of all export-related
transactions where violations are suspected.
(2) Initial notification.
(i) The initial notification should be in writing and be sent to
one of the addresses in Sec. 764.5(c)(7) of this part. The notification
should include the name of the person making the disclosure and a brief
description of the suspected violations. The notification should
describe the general nature and extent of the violations. If the person
making the disclosure subsequently
[[Page 12905]]
completes the narrative account required by Sec. 764.5(c)(3) of this
part, the disclosure will be deemed to have been made on the date of
the initial notification for purposes of Sec. 764.5(b)(3) of this part.
(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 Sec. 764.5(c)(7) of this part.
(3) Narrative account. After the initial notification, a thorough
review should be conducted of all export-related transactions where
possible violations are suspected. OEE recommends that the review cover
a period of five years prior to the date of the initial notification.
If your review goes back less than five years, you risk failing to
discover violations that may later become the subject of an
investigation. Any violations not voluntarily disclosed do not receive
consideration under this section. However, the failure to make such
disclosures will not be treated as a separate violation unless some
other section of the EAR or other provision of law requires disclosure.
Upon completion of the review, OEE should be furnished with a narrative
account that sufficiently describes the suspected violations so that
their nature and gravity can be assessed. The narrative account should
also describe the nature of the review conducted and measures that may
have been taken to minimize the likelihood that violations will occur
in the future. The narrative account should include:
(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) Supporting documentation.
(i) The narrative account should be accompanied by copies of
documents that explain and support it, including:
(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 handled in
accordance with the recordkeeping rules in part 762 of the EAR.
(5) Certification. A certification must be submitted stating that
all of the representations made in connection with the voluntary self-
disclosure are true and correct to the best of that person's knowledge
and belief. Certifications made by a corporation or other organization
should be signed by an official of the corporation or other
organization with the authority to do so. Section 764.2(g) of this
part, relating to false or misleading representations, applies in
connection with the disclosure of information under this section.
(6) Oral presentations. OEE believes that oral presentations are
generally not necessary to augment the written narrative account and
supporting documentation. If the person making the disclosure believes
otherwise, a request for a meeting should be included with the
disclosure.
(7) Where to make voluntary self-disclosures. The information
constituting a voluntary self-disclosure or any other correspondence
pertaining to a voluntary self-disclosure may be submitted to:
Office of Export Enforcement, Director, Intelligence Division, U.S.
Department of Commerce, P.O. Box 70, Washington, D.C. 20044
Office of Export Enforcement, Director, Intelligence Division, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W., Room
H-4520,Washington, D.C. 20230, Tel: (202) 482-1208, Facsimile: (202)
482-0964,
or to any of the following field offices:
Special Agent in Charge, Boston Field Office, Office of Export
Enforcement, New Boston Federal Building, 10 Causeway Street, Room 350,
Boston, Massachusetts 02222, Tel: (617) 565-6030, Facsimile: (617) 835-
6039
Special Agent in Charge, Chicago Field Office, Office of Export
Enforcement, 2400 East Devon, Suite 300, Des Plaines, Illinois 60018,
Tel: (312) 353-6640, Facsimile: (312) 353-8008
Special Agent in Charge, Dallas Field Office, Office of Export
Enforcement, 525 Griffin Street, Room 622, Dallas, Texas 75202, Tel:
(214) 767-9294, Facsimile: (214) 729-9299
Special Agent in Charge, Los Angeles Field Office, Office of Export
Enforcement, 2601 Main Street, Suite 310, Irvine, California 92714-
6299, Tel: (714) 251-9001, Facsimile: (714) 791-9103
Special Agent in Charge, Miami Field Office, Office of Export
Enforcement, 200 East Las Olas Boulevard, Suite 1260, Fort Lauderdale,
Florida 33301, Tel: (954) 356-7540, Facsimile: (954) 356-7549
Special Agent in Charge, New York Field Office, Office of Export
Enforcement, Teleport II, 2 Teleport Drive, Staten Island, New York
10311-1001, Tel: (718) 370-0070, Facsimile: (718) 370-8226
Special Agent in Charge, San Jose Field Office, Office of Export
Enforcement, 96 North 3rd Street, Suite 250, San Jose, California
95112-5572, Tel: (408) 291-4204, Facsimile: (408) 291-4320
Special Agent in Charge, Washington, D.C. Field Office, Office of
Export Enforcement, 8001 Forbes Place, Room 201, Springfield, Virginia
22151-0838, Tel: (703) 487-4950, Facsimile: (703) 487-4955.
(d) Action by the Office of Export Enforcement. After OEE has been
provided with the required narrative and supporting documentation, it
will acknowledge the disclosure by letter, provide the person making
the disclosure with a point of contact, and take whatever additional
action, including further investigation, it deems appropriate. As
quickly as the facts and circumstances of a given case permit, OEE may
take any of the following actions:
(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 Sec. 766.18 of the
EAR and attempt to settle the matter;
(4) Issue a charging letter pursuant to Sec. 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) Criteria. For purposes of determining what administrative
action to take and what sanctions, if any, to
[[Page 12906]]
seek, the fact that a voluntary self-disclosure has been made will be a
mitigating factor. OEE will take that factor into account along with
other mitigating and aggravating factors when determining what, if any,
administrative sanctions should be imposed. The factors that OEE will
consider are in its sole discretion, but may include:
(1) The extent to which the purpose of the control is undermined by
the transaction;
(2) Whether the transaction would have been authorized had proper
application been made;
(3) The quantity and value of the items involved;
(4) Why the violations occurred. For example, OEE may consider
whether the violations were intentional or inadvertent; the degree to
which the person responsible for the violation making the disclosure
was familiar with the EAR; and whether the violator has been the
subject of prior administrative or criminal action under the EAA or the
EAR;
(5) Whether, as a result of the information provided, OEE is able
to prevent any items exported illegally from reaching unauthorized
persons or destinations;
(6) The degree of cooperation with the ensuing investigation;
(7) Whether the person has instituted or improved an internal
compliance program to reduce the likelihood of future violations.
(f) Treatment of unlawfully exported items after voluntary self-
disclosure.
(1) Any person taking certain actions with knowledge that a
violation of the EAA or the EAR has occurred has violated Sec. 764.2(e)
of this part. Any person who has made a voluntary self-disclosure knows
that a violation may have occurred. Therefore, at the time that a
voluntary self-disclosure is made, the person making the disclosure may
request permission from BXA to engage in the activities described in
Sec. 764.2(e) of this part that would otherwise be prohibited. If the
request is granted by the Office of Exporter Services in consultation
with OEE, future activities with respect to those items that would
otherwise violate Sec. 764.2(e) of this part will not constitute
violations. However, even if permission is granted, the person making
the voluntary self-disclosure is not absolved from liability for any
violations disclosed nor relieved of the obligation to obtain any
required reexport authorizations.
(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 BXA 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.
Sec. 764.6 Protective administrative measures.
(a) License Exception limitation. As provided in Sec. 740.2(b) of
the EAR , all License Exceptions are subject to revision, suspension,
or revocation.
(b) Revocation or suspension of licenses. As provided in Sec. 750.8
of the EAR, all licenses are subject to revision, suspension, or
revocation.
(c) Temporary denial orders. BXA may, in accordance with
Sec. 766.24 of the EAR, issue an order temporarily denying export
privileges when such an order is necessary in the public interest to
prevent the occurrence of an imminent violation.
(d) Denial based on criminal conviction. BXA may, in accordance
with Sec. 766.25 of the EAR, issue an order denying the export
privileges of any person who has been convicted of an offense specified
in Sec. 11(h) of the EAA.
Supplement No. 1 To Part 764--Standard Terms of Orders Denying Export
Privileges
(a) General. Orders denying export privileges may be ``standard''
or ``non-standard.'' This Supplement specifies terms of the standard
order denying export privileges. All denial orders are published in the
Federal Register. The failure by any person to comply with any denial
order is a violation of the Export Administration Regulations (EAR).
(See General Prohibition Four at Sec. 736.2(b)(4) of the EAR;
Sec. 764.2(k) of this part.) All persons whose export privileges are
denied by any form of denial order are identified on the Denied Persons
List (Supplement No. 2 to this part), with an indication of whether an
order is standard or non-standard denoted in the ``Terms of order''
column. The Denied Persons List also tells you where each denial order
can be found in the Federal Register. Reference should be made to the
text of the denial order, as published in the Federal Register, to
learn the scope of any denial order, including any non-standard denial
order.
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, Sec. 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) Standard text.
The standard denial order shall provide:
``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
[[Page 12907]]
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 Sec. 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 immediately.''
Supplement No. 2 To Part 764--Denied Persons List
(a) General.
(1) The Denied Persons List identifies those persons denied export
privileges by the Bureau of Export Administration (BXA) pursuant to the
terms of an order. Part A of the Denied Persons List lists all denied
persons in alphabetical order and provides supplementary information,
while Part B lists all denied persons by geographic area. Part A of the
Denied Persons List is organized into five columns, including the name
and address of the denied person, the effective and expiration dates of
the order, a brief description of the terms of the order, and a
citation to the Federal Register where the terms of the order can be
located. Reference should always be made to the text of a denial order
when using the Denied Persons List.
(2) Denial orders issued subsequent to March 25, 1996, shall be
identified in part A as being standard or non-standard, and denial
orders issued prior to March 25, 1996, shall be construed, insofar as
possible, as having the same scope and effect as the standard denial
order. Non-standard orders are denoted by the phrase ``non-standard''
in the ``Terms of order'' column in part A, standard orders are denoted
by the word ``standard,'' and orders issued prior to March 25, 1996,
are denoted by the same brief description entered at the time of
issuance. Standard orders denying export privileges contain the
standard terms set forth in Supplement No. 1 to part 764.
(3) You are responsible for ensuring that you take no action
involving items subject to the Export Administration Regulations (EAR)
that is contrary to the terms of a denial order.
(b) Related persons. Related persons who are denied export
privileges subsequent to [the effective date of the interim EAR] shall
appear in part A of the Denied Persons List with a note identifying the
denied persons to whom they are related in the column entitled ``Terms
of order.''
(c) Publication. New and amended denial orders are published in the
Federal Register as they are issued. This publication constitutes
official notice to the public.
(d) Updates and availability.
(1) As a convenience for the public, issuance of denial orders is
announced in Export Administration Bulletins. Part A of the Denied
Persons List is also available electronically on two bulletin boards of
Department of Commerce agencies, Fedworld (National Technical
Information Service) and the Economic Bulletin Board (Economics and
Statistics Administration).
PART 766--ADMINISTRATIVE ENFORCEMENT PROCEEDINGS
Sec.
766.1 Scope.
766.2 Definitions.
766.3 Institution of administrative enforcement proceedings.
766.4 Representation.
766.5 Filing and service of papers other than charging letter.
766.6 Answer and demand for hearing.
766.7 Default.
766.8 Summary decision.
766.9 Discovery.
766.10 Subpoenas.
766.11 Matter protected against disclosure.
766.12 Prehearing conference.
766.13 Hearings.
766.14 Interlocutory review of rulings.
766.15 Proceeding without a hearing.
766.16 Procedural stipulations; extension of time.
766.17 Decision of the administrative law judge.
766.18 Settlement.
766.19 Reopening.
766.20 Record for decision and availability of documents.
766.21 Appeals.
766.22 Review by Under Secretary.
766.23 Related persons.
766.24 Temporary denials.
766.25 Administrative action denying permission to apply for or use
export licenses.
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 766.1 Scope.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C. This part describes the procedures for
imposing administrative sanctions for violations of the Export
Administration Act of 1979, as amended (the EAA), the Export
Administration Regulations (EAR), or any order, license or
authorization issued thereunder. Parts 760 and 764 of the EAR specify
those actions that constitute violations, and part 764 describes the
sanctions that apply. In addition to describing the procedures for
imposing sanctions, this part describes the procedures for imposing
temporary denial orders to prevent imminent violations of the EAA, the
EAR, or any order, license or authorization issued thereunder. This
part also describes the procedures for taking the discretionary
protective administrative action of denying the export privileges of
persons who have been convicted of violating any of the statutes,
including the EAA, listed in section 11(h) of the EAA. Nothing in this
part shall be construed as applying to or limiting other administrative
or enforcement action relating to the EAA or the EAR, including the
exercise of any investigative authorities conferred by the EAA. This
part does not confer any procedural rights or impose any requirements
based on the Administrative Procedure Act for proceedings charging
violations under the EAA, except as expressly provided for in this
part.
Sec. 766.2 Definitions.
As used in this part, the following definitions apply:
Administrative law judge. The person authorized to conduct hearings
in administrative enforcement proceedings brought under the EAA or to
hear appeals from the imposition of temporary denial orders. The term
``judge'' may be used for brevity when it is clear that the reference
is to the administrative law judge.
Assistant Secretary. The Assistant Secretary for Export
Enforcement, Bureau of Export Administration.
Bureau of Export Administration (BXA). Bureau of Export
Administration, United States
[[Page 12908]]
Department of Commerce, and all of its component units, including, in
particular for purposes of this part, the Office of Antiboycott
Compliance, the Office of Export Enforcement, and the Office of
Exporter Services.
Final decision. A decision or order assessing a civil penalty,
denial of export privileges or other sanction, or otherwise disposing
of or dismissing a case, which is not subject to further review under
this part, but which is subject to collection proceedings or judicial
review in an appropriate Federal district court as authorized by law.
Initial decision. A decision of the administrative law judge in
proceedings involving violations relating to part 760 of the EAR, which
is subject to appellate review by the Under Secretary for Export
Administration, but which becomes the final decision in the absence of
such an appeal.
Party. BXA and any person named as a respondent under this part.
Recommended decision. A decision of the administrative law judge in
proceedings involving violations other than those relating to part 760
of the EAR, which is subject to review by the Under Secretary of
Commerce for Export Administration, who issues a written order
affirming, modifying or vacating the recommended decision.
Respondent. Any person named as the subject of a charging letter,
proposed charging letter, temporary denial order, or other order
proposed or issued under this part.
Under Secretary. The Under Secretary for Export Administration,
United States Department of Commerce.
Sec. 766.3 Institution of administrative enforcement proceedings.
(a) Charging letters. The Director of the Office of Export
Enforcement 1 (OEE) or the Director of the Office of Antiboycott
Compliance (OAC), as appropriate, may begin administrative enforcement
proceedings under this part by issuing a charging letter in the name of
BXA. The charging letter shall constitute the formal complaint and will
state that there is reason to believe that a violation of the EAA, the
EAR, or any order, license or authorization issued thereunder, has
occurred. It will set forth the essential facts about the alleged
violation, refer to the specific regulatory or other provisions
involved, and give notice of the sanctions available under part 764 of
the EAR. The charging letter will inform the respondent that failure to
answer the charges as provided in Sec. 766.6 of this part will be
treated as a default under Sec. 766.7 of this part, that the respondent
is entitled to a hearing if a written demand for one is requested with
the answer, and that the respondent may be represented by counsel, or
by other authorized representative who has a power of attorney to
represent the respondent. A copy of the charging letter shall be filed
with the administrative law judge, which filing shall toll the running
of the applicable statute of limitations. Charging letters may be
amended or supplemented at any time before an answer is filed, or, with
permission of the administrative law judge, afterwards. BXA may
unilaterally withdraw charging letters at any time, by notifying the
respondent and the administrative law judge.
\1\ By agreement with the Director of the Office of Strategic
Industries and Economic Resource Administration, the Director of the
Office of Export Enforcement enforces short supply controls imposed
under section 7 of the EAA.
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(b) Notice of issuance of charging letter instituting
administrative enforcement proceeding. A respondent shall be notified
of the issuance of a charging letter, or any amendment or supplement
thereto:
(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) Date. The date of service of notice of the issuance of a
charging letter instituting an administrative enforcement proceeding,
or service of notice of the issuance of a supplement or amendment to a
charging letter, is the date of its delivery, or of its attempted
delivery if delivery is refused.
Sec. 766.4 Representation.
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. BXA will be represented by the Office of
Chief Counsel for Export Administration, U.S. Department of Commerce.
Sec. 766.5 Filing and service of papers other than charging letter.
(a) Filing. All papers to be filed shall be addressed to ``EAR
Administrative Enforcement Proceedings,'' U.S. Department of Commerce,
Room H-6716, 14th Street and Constitution Avenue, N.W., Washington,
D.C. 20230, or such other place as the administrative law judge may
designate. Filing by United States mail, first class postage prepaid,
by express or equivalent parcel delivery service, or by hand delivery,
is acceptable. Filing by mail from a foreign country shall be by
airmail. In addition, the administrative law judge may authorize filing
of papers by facsimile or other electronic means, provided that a hard
copy of any such paper is subsequently filed. A copy of each paper
filed shall be simultaneously served on each party.
(b) Service. Service shall be made by personal delivery or by
mailing one copy of each paper to each party in the proceeding. Service
by delivery service or facsimile, in the manner set forth in paragraph
(a) of this section, is acceptable. Service on BXA shall be addressed
to the Chief Counsel for Export Administration, Room H-3839, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W.,
Washington, D.C. 20230. Service on a respondent shall be to the address
to which the charging letter was sent or to such other address as
respondent may provide. When a party has appeared by counsel or other
representative, service on counsel or other representative shall
constitute service on that party.
(c) Date. The date of filing or service is the day when the papers
are deposited in the mail or are delivered in person, by delivery
service, or by facsimile.
(d) Certificate of service. A certificate of service signed by the
party making service, stating the date and manner of service, shall
accompany every paper, other than the charging letter, filed and served
on parties.
(e) Computing period of time. In computing any period of time
prescribed or allowed by this part or by
[[Page 12909]]
order of the administrative law judge or the Under Secretary, the day
of the act, event, or default from which the designated period of time
begins to run is not to be included. The last day of the period so
computed is to be included unless it is a Saturday, a Sunday, or a
legal holiday (as defined in Rule 6(a) of the Federal Rules of Civil
Procedure), in which case the period runs until the end of the next day
which is neither a Saturday, a Sunday, nor a legal holiday.
Intermediate Saturdays, Sundays, and legal holidays are excluded from
the computation when the period of time prescribed or allowed is seven
days or less.
Sec. 766.6 Answer and demand for hearing.
(a) When to answer. The respondent must answer the charging letter
within 30 days after being served with notice of the issuance of a
charging letter instituting an administrative enforcement proceeding,
or within 30 days of notice of any supplement or amendment to a
charging letter, unless time is extended under Sec. 766.16 of this
part.
(b) Contents of answer. The answer must be responsive to the
charging letter and must fully set forth the nature of the respondent's
defense or defenses. The answer must admit or deny specifically each
separate allegation of the charging letter; if the respondent is
without knowledge, the answer must so state and will operate as a
denial. Failure to deny or controvert a particular allegation will be
deemed an admission of that allegation. The answer must also set forth
any additional or new matter the respondent believes supports a defense
or claim of mitigation. Any defense or partial defense not specifically
set forth in the answer shall be deemed waived, and evidence thereon
may be refused, except for good cause shown.
(c) Demand for hearing. If the respondent desires a hearing, a
written demand for one must be submitted with the answer. Any demand by
BXA for a hearing must be filed with the administrative law judge
within 30 days after service of the answer. Failure to make a timely
written demand for a hearing shall be deemed a waiver of the party's
right to a hearing, except for good cause shown. If no party demands a
hearing, the matter will go forward in accordance with the procedures
set forth in Sec. 766.15 of this part.
(d) English language required. The answer, all other papers, and
all documentary evidence must be submitted in English, or translations
into English must be filed and served at the same time.
Sec. 766.7 Default.
(a) General. Failure of the respondent to file an answer within the
time provided constitutes a waiver of the respondent's right to appear
and contest the allegations in the charging letter. In such event, the
administrative law judge, on BXA's motion and without further notice to
the respondent, shall find the facts to be as alleged in the charging
letter and render an initial or recommended decision containing
findings of fact and appropriate conclusions of law and issue or
recommend an order imposing appropriate sanctions. The decision and
order shall be subject to review by the Under Secretary in accordance
with the applicable procedures set forth in Sec. 766.21 or Sec. 766.22
of this part.
(b) Petition to set aside default. (1) Procedure. Upon petition
filed by a respondent against whom a default order has been issued,
which petition is accompanied by an answer meeting the requirements of
Sec. 766.6(b) of this part, the Under Secretary may, after giving all
parties an opportunity to comment, and for good cause shown, set aside
the default and vacate the order entered thereon and remand the matter
to the administrative law judge for further proceedings.
(2) Time limits. A petition under this section must be made within
one year of the date of entry of the order which the petition seeks to
have vacated.
Sec. 766.8 Summary decision.
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.
Sec. 766.9 Discovery.
(a) General. The parties are encouraged to engage in voluntary
discovery regarding any matter, not privileged, which is relevant to
the subject matter of the pending proceeding. The provisions of the
Federal Rules of Civil Procedure relating to discovery apply to the
extent consistent with this part and except as otherwise provided by
the administrative law judge or by waiver or agreement of the parties.
The administrative law judge may make any order which justice requires
to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense. These orders may include limitations on the
scope, method, time and place of discovery, and provisions for
protecting the confidentiality of classified or otherwise sensitive
information.
(b) Interrogatories and requests for admission or production of
documents. A party may serve on any party interrogatories, requests for
admission, or requests for production of documents for inspection and
copying, and a party concerned may apply to the administrative law
judge for such enforcement or protective order as that party deems
warranted with respect to such discovery. The service of a discovery
request shall be made at least 20 days before the scheduled date of the
hearing unless the administrative law judge specifies a shorter time
period. Copies of interrogatories, requests for admission and requests
for production of documents and responses thereto shall be served on
all parties, and a copy of the certificate of service shall be filed
with the administrative law judge. Matters of fact or law of which
admission is requested shall be deemed admitted unless, within a period
designated in the request (at least 10 days after service, or within
such additional time as the administrative law judge may allow), the
party to whom the request is directed serves upon the requesting party
a sworn statement either denying specifically the matters of which
admission is requested or setting forth in detail the reasons why the
party to whom the request is directed cannot truthfully either admit or
deny such matters.
(c) Depositions. Upon application of a party and for good cause
shown, the administrative law judge may order the taking of the
testimony of any person by deposition and the production of specified
documents or materials by the person at the deposition. The application
shall state the purpose of the deposition and set forth the facts
sought to be established through the deposition.
(d) Enforcement. The administrative law judge may order a party to
answer designated questions, to produce specified documents or things
or to take any other action in response to a proper discovery request.
If a party does not comply with such an order, the administrative law
judge may make a determination or enter any order in the proceeding as
the judge deems reasonable and appropriate. The judge may strike
related charges or defenses in whole or in part or may take particular
facts relating to the discovery request to
[[Page 12910]]
which the party failed or refused to respond as being established for
purposes of the proceeding in accordance with the contentions of the
party seeking discovery. In addition, enforcement by a district court
of the United States may be sought under section 12(a) of the EAA.
Sec. 766.10 Subpoenas.
(a) Issuance. Upon the application of any party, supported by a
satisfactory showing that there is substantial reason to believe that
the evidence would not otherwise be available, the administrative law
judge will issue subpoenas requiring the attendance and testimony of
witnesses and the production of such books, records or other
documentary or physical evidence for the purpose of the hearing, as the
judge deems relevant and material to the proceedings, and reasonable in
scope.
(b) Service. Subpoenas issued by the administrative law judge may
be served in any of the methods set forth in Sec. 766.5(b) of this
part.
(c) Timing. Applications for subpoenas must be submitted at least
10 days before the scheduled hearing or deposition, unless the
administrative law judge determines, for good cause shown, that
extraordinary circumstances warrant a shorter time.
Sec. 766.11 Matter protected against disclosure.
(a) Protective measures. It is often necessary for BXA to receive
and consider information and documents that are sensitive from the
standpoint of national security, foreign policy, business
confidentiality, or investigative concern, and that are to be protected
against disclosure. Accordingly, and without limiting the discretion of
the administrative law judge to give effect to any other applicable
privilege, it is proper for the administrative law judge to limit
discovery or introduction of evidence or to issue such protective or
other orders as in the judge's judgment may be consistent with the
objective of preventing undue disclosure of the sensitive documents or
information. Where the administrative law judge determines that
documents containing the sensitive matter need to be made available to
a respondent to avoid prejudice, the judge may direct BXA to prepare an
unclassified and nonsensitive summary or extract of the documents. The
administrative law judge may compare the extract or summary with the
original to ensure that it is supported by the source document and that
it omits only so much as must remain classified or undisclosed. The
summary or extract may be admitted as evidence in the record.
(b) Arrangements for access. If the administrative law judge
determines that this procedure is unsatisfactory and that classified or
otherwise sensitive matter must form part of the record in order to
avoid prejudice to a party, the judge may provide the parties
opportunity to make arrangements that permit a party or a
representative to have access to such matter without compromising
sensitive information. Such arrangements may include obtaining security
clearances, obtaining a national interest determination under section
12(c) of the EAA, or giving counsel for a party access to sensitive
information and documents subject to assurances against further
disclosure, including a protective order, if necessary.
Sec. 766.12 Prehearing conference.
(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.
Sec. 766.13 Hearings.
(a) Scheduling. The administrative law judge, by agreement with the
parties or upon notice to all parties of not less than 30 days, will
schedule a hearing. All hearings will be held in Washington, D.C.,
unless the administrative law judge determines, for good cause shown,
that another location would better serve the interests of justice.
(b) Hearing procedure. Hearings will be conducted in a fair and
impartial manner by the administrative law judge, who may limit
attendance at any hearing or portion thereof to the parties, their
representatives and witnesses if the judge deems this necessary or
advisable in order to protect sensitive matter (see Sec. 766.11 of this
part) from improper disclosure. The rules of evidence prevailing in
courts of law do not apply, and all evidentiary material deemed by the
administrative law judge to be relevant and material to the proceeding
and not unduly repetitious will be received and given appropriate
weight.
(c) Testimony and record. Witnesses will testify under oath or
affirmation. A verbatim record of the hearing and of any other oral
proceedings will be taken by reporter or by electronic recording,
transcribed and filed with the administrative law judge. A respondent
may examine the transcript and may obtain a copy by paying any
applicable costs. Upon such terms as the administrative law judge deems
just, the judge 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) Failure to appear. If a party fails to appear in person or by
counsel at a scheduled hearing, the hearing may nevertheless proceed,
and that party's failure to appear will not affect the validity of the
hearing or any proceedings or action taken thereafter.
Sec. 766.14 Interlocutory review of rulings.
(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.
Sec. 766.15 Proceeding without a hearing.
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
[[Page 12911]]
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.
Sec. 766.16 Procedural stipulations; extension of time.
(a) Procedural stipulations. Unless otherwise ordered, a written
stipulation agreed to by all parties and filed with the administrative
law judge will modify any procedures established by this part.
(b) Extension of time. (1) The parties may extend any applicable
time limitation, by stipulation filed with the administrative law judge
before the time limitation expires.
(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.
Sec. 766.17 Decision of the administrative law judge.
(a) Predecisional matters. Except for default proceedings under
Sec. 766.7 of this part, the administrative law judge will give the
parties reasonable opportunity to submit the following, which will be
made a part of the record:
(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) Decision and order. After considering the entire record in the
proceeding, the administrative law judge will issue a written decision.
(1) Initial decision. For proceedings charging violations relating
to part 760 of the EAR, the decision rendered shall be an initial
decision. The decision will include findings of fact, conclusions of
law, and findings as to whether there has been a violation of the EAA,
the EAR, or any order, license or authorization issued thereunder. If
the administrative law judge finds that the evidence of record is
insufficient to sustain a finding that a violation has occurred with
respect to one or more charges, the judge shall order dismissal of the
charges in whole or in part, as appropriate. If the administrative law
judge finds that one or more violations have been committed, the judge
may issue an order imposing administrative sanctions, as provided in
part 764 of the EAR. The decision and order shall be served on each
party, and shall become effective as the final decision of the
Department 30 days after service, unless an appeal is filed in
accordance with Sec. 766.21 of this part.
(2) Recommended decision. For proceedings not involving violations
relating to part 760 of the EAR, the decision rendered shall be a
recommended decision. The decision will include recommended findings of
fact, conclusions of law, and findings as to whether there has been a
violation of the EAA, the EAR or any order, license or authorization
issued thereunder. If the administrative law judge finds that the
evidence of record is insufficient to sustain a recommended finding
that a violation has occurred with respect to one or more charges, the
judge shall recommend dismissal of any such charge. If the
administrative law judge finds that one or more violations have been
committed, the judge shall recommend an order imposing administrative
sanctions, as provided in part 764 of the EAR, or such other action as
the judge deems appropriate. The administrative law judge shall
immediately certify the record, including the original copy of the
recommended decision and order, to the Under Secretary for review in
accordance with Sec. 766.22 of this part. The administrative law judge
shall also immediately serve the recommended decision on all parties.
Because of the time limits established in the EAA for review by the
Under Secretary, service upon parties shall be by personal delivery,
express mail or other overnight carrier.
(c) Suspension of sanctions. Any order imposing administrative
sanctions may provide for the suspension of the sanction imposed, in
whole or in part and on such terms of probation or other conditions as
the administrative law judge or the Under Secretary may specify. Any
suspension order may be modified or revoked by the signing official
upon application of BXA showing a violation of the probationary terms
or other conditions, after service on the respondent of notice of the
application in accordance with the service provisions of Sec. 766.3 of
this part, and with such opportunity for response as the responsible
signing official in his/her discretion may allow. A copy of any order
modifying or revoking the suspension shall also be served on the
respondent in accordance with the provisions of Sec. 766.3 of this
part.
(d) Time for decision. Administrative enforcement proceedings not
involving violations relating to part 760 of the EAR shall be
concluded, including review by the Under Secretary under Sec. 766.22 of
this part, within one year of the submission of a charging letter,
unless the administrative law judge, for good cause shown, extends such
period. The charging letter will be deemed to have been submitted to
the administrative law judge on the date the respondent files an answer
or on the date BXA files a motion for a default order pursuant to
Sec. 766.7(a) of this part, whichever occurs first.
Sec. 766.18 Settlement.
(a) Cases may be settled before service of a charging letter. In
cases in which settlement is reached before service of a charging
letter, a proposed charging letter will be prepared, and a settlement
proposal consisting of a settlement agreement and order will be
submitted to the Assistant Secretary for approval and signature. If the
Assistant Secretary does not approve the proposal, he/she will notify
the parties and the case will proceed as though no settlement proposal
had been made. If the Assistant Secretary approves the proposal, he/she
will issue an appropriate order, and no action will be required by the
administrative law judge.
(b) Cases may also be settled after service of a charging letter.
(1) If the case is pending before the administrative law judge, the
judge shall stay the proceedings for a reasonable period of time,
usually not to exceed 30 days, upon notification by the parties that
they have entered into good faith settlement negotiations. The
administrative law judge may, in his/her discretion, grant additional
stays. If settlement is reached, a proposal will be submitted to the
Assistant Secretary for approval and signature. If the Assistant
Secretary approves the proposal, he/she will issue an appropriate
order, and notify the administrative law judge that the case is
withdrawn from adjudication. If the Assistant Secretary does not
approve the proposal, he/she will notify the parties and the case will
proceed to adjudication by the administrative law judge as though no
settlement proposal had been made.
(2) If the case is pending before the Under Secretary under
Sec. 766.21 or Sec. 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
[[Page 12912]]
decision in accordance with Sec. 766.21 or Sec. 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 Sec. 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 BXA 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.
Sec. 766.19 Reopening.
The respondent may petition the administrative law judge within one
year of the date of the final decision, except where the decision
arises from a default judgment or from a settlement, to reopen an
administrative enforcement proceeding to receive any relevant and
material evidence which was unknown or unobtainable at the time the
proceeding was held. The petition must include a summary of such
evidence, the reasons why it is deemed relevant and material, and the
reasons why it could not have been presented at the time the
proceedings were held. The administrative law judge will grant or deny
the petition after providing other parties reasonable opportunity to
comment. If the proceeding is reopened, the administrative law judge
may make such arrangements as the judge deems appropriate for receiving
the new evidence and completing the record. The administrative law
judge will then issue a new initial or recommended decision and order,
and the case will proceed to final decision and order in accordance
with Sec. 766.21 or Sec. 766.22 of this part, as appropriate.
Sec. 766.20 Record for decision and availability of documents.
(a) General. The transcript of hearings, exhibits, rulings, orders,
all papers and requests filed in the proceedings and, for purposes of
any appeal under Sec. 766.21 of this part or review under Sec. 766.22
of this part, the decision of the administrative law judge and such
submissions as are provided for by Secs. 766.21 and 766.22 of this
part, will constitute the record and the exclusive basis for decision.
When a case is settled after the service of a charging letter, the
record will consist of any and all of the foregoing, as well as the
settlement agreement and the order. When a case is settled before
service of a charging letter, the record will consist of the proposed
charging letter, the settlement agreement and the order.
(b) Restricted access. On the judge's own motion, or on the motion
of any party, the administrative law judge may direct that there be a
restricted access portion of the record for any material in the record
to which public access is restricted by law or by the terms of a
protective order entered in the proceedings. A party seeking to
restrict access to any portion of the record is responsible for
submitting, at the time specified in Sec. 766.20(c)(2) of this part, a
version of the document proposed for public availability that reflects
the requested deletion. The restricted access portion of the record
will be placed in a separate file and the file will be clearly marked
to avoid improper disclosure and to identify it as a portion of the
official record in the proceedings. The administrative law judge may
act at any time to permit material that becomes declassified or
unrestricted through passage of time to be transferred to the
unrestricted access portion of the record.
(c) Availability of documents. (1) Scope. (i) For proceedings
started on or after October 12, 1979, all charging letters, answers,
initial and recommended decisions, and orders disposing of a case will
be made available for public inspection in the BXA Freedom of
Information Records Inspection Facility, U.S. Department of Commerce,
Room H-6624, 14th Street and Pennsylvania Avenue, N.W., Washington,
D.C. 20230. The complete record for decision, as defined in paragraphs
(a) and (b) of this section will be made available on request. In
addition, all decisions of the Under Secretary on appeal pursuant to
Sec. 766.22 of this part and those final orders providing for denial,
suspension or revocation of export privileges shall be published in the
Federal Register.
(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) Timing. (i) Antiboycott cases. For matters relating to part 760
of the EAR, documents are available immediately upon filing, except for
any portion of the record for which a request for segregation is made.
Parties that seek to restrict access to any portion of the record under
paragraph (b) of this section must make such a request, together with
the reasons supporting the claim of confidentiality, simultaneously
with the submission of material for the record.
(ii) Other cases. In all other cases, documents will be available
only after the final administrative disposition of the case. In these
cases, parties desiring to restrict access to any portion of the record
under paragraph (b) of this section must assert their claim of
confidentiality, together with the reasons for supporting the claim,
before the close of the proceeding.
Sec. 766.21 Appeals.
(a) Grounds. For proceedings charging violations relating to part
760 of the EAR, a party may appeal to the Under Secretary from an order
disposing of a proceeding or an order denying a petition to set aside a
default or a petition for reopening, on the grounds:
(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) Filing of appeal. An appeal from an order must be filed with
the Office of the Under Secretary for Export Administration, Bureau of
Export Administration, U.S. Department of Commerce, Room H-3898, 14th
Street and Constitution Avenue, N.W., Washington, D.C. 20230, within 30
days after service of the order appealed from. If the Under Secretary
cannot act on an appeal for any reason, the Under Secretary will
designate another Department of Commerce official to receive and act on
the appeal.
(c) Effect of appeal. The filing of an appeal shall not stay the
operation of any order, unless the order by its express terms so
provides or unless the Under Secretary, upon application by a party and
with opportunity for response, grants a stay.
(d) Appeal procedure. The Under Secretary normally will not hold
hearings or entertain oral argument on appeals. A full written
statement in support of the appeal must be filed with the appeal and be
simultaneously served on all parties, who shall have 30 days from
service to file a reply. At his/
[[Page 12913]]
her discretion, the Under Secretary may accept new submissions, but
will not ordinarily accept those submissions filed more than 30 days
after the filing of the reply to the appellant's first submission.
(e) Decisions. The decision will be in writing and will be
accompanied by an order signed by the Under Secretary giving effect to
the decision. The order may either dispose of the case by affirming,
modifying or reversing the order of the administrative law judge or may
refer the case back to the administrative law judge for further
proceedings.
Sec. 766.22 Review by Under Secretary.
(a) Recommended decision. For proceedings not involving violations
relating to part 760 of the EAR, the administrative law judge shall
immediately refer the recommended decision and order to the Under
Secretary. Because of the time limits provided under the EAA for review
by the Under Secretary, service of the recommended decision and order
on the parties, all papers filed by the parties in response, and the
final decision of the Under Secretary must be by personal delivery,
facsimile, express mail or other overnight carrier. If the Under
Secretary cannot act on a recommended decision and order for any
reason, the Under Secretary will designate another Department of
Commerce official to receive and act on the recommendation.
(b) Submissions by parties. Parties shall have 12 days from the
date of issuance of the recommended decision and order in which to
submit simultaneous responses. Parties thereafter shall have eight days
from receipt of any response(s) in which to submit replies. Any
response or reply must be received within the time specified by the
Under Secretary.
(c) Final decision. Within 30 days after receipt of the recommended
decision and order, the Under Secretary shall issue a written order
affirming, modifying or vacating the recommended decision and order of
the administrative law judge. If he/she vacates the recommended
decision and order, the Under Secretary may refer the case back to the
administrative law judge for further proceedings. Because of the time
limits, the Under Secretary's review will ordinarily be limited to the
written record for decision, including the transcript of any hearing,
and any submissions by the parties concerning the recommended decision.
(d) Delivery. The final decision and implementing order shall be
served on the parties and will be publicly available in accordance with
Sec. 766.20 of this part.
(e) Appeals. The charged party may appeal the Under Secretary's
written order within 15 days to the United States Court of Appeals for
the District of Columbia pursuant to 50 U.S.C. app. Sec. 2412(c)(3).
Sec. 766.23 Related persons.
(a) General. In order to prevent evasion, certain types of orders
under this part may be made applicable not only to the respondent, but
also to other persons then or thereafter related to the respondent by
ownership, control, position of responsibility, affiliation, or other
connection in the conduct of trade or business. Orders that may be made
applicable to related persons include those that deny or affect export
privileges, including temporary denial orders, and those that exclude a
respondent from practice before BXA.
(b) Procedures. If BXA has reason to believe that a person is
related to the respondent and that an order that is being sought or
that has been issued should be made applicable to that person in order
to prevent evasion of the order, BXA shall, except in an ex parte
proceeding under Sec. 766.24(a) of this part, give that person notice
in accordance with Sec. 766.5(b) of this part and an opportunity to
oppose such action. If the official authorized to issue the order
against the respondent finds that the order should be made applicable
to that person in order to prevent evasion of the order that official
shall issue or amend the order accordingly.
(c) Appeals. Any person named by BXA in an order as related to the
respondent may file an appeal with the administrative law judge. The
sole issues to be raised and ruled on in any such appeal are whether
the person so named is related to the respondent and whether the order
is justified in order to prevent evasion. 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 Sec. 766.22 of
this part.
Sec. 766.24 Temporary denials.
(a) General. The procedures in this section apply to temporary
denial orders issued on or after July 12, 1985. For temporary denial
orders issued on or before July 11, 1985, the proceedings will be
governed by the applicable regulations in effect at the time the
temporary denial orders were issued. Without limiting any other action
BXA may take under the EAR with respect to any application, order,
license or authorization issued under the EAA, BXA may ask the
Assistant Secretary to issue a temporary denial order on an ex parte
basis to prevent an imminent violation, as defined in this section, of
the EAA, the EAR, or any order, license or authorization issued
thereunder. The temporary denial order will deny export privileges to
any person named in the order as provided for in Sec. 764.3(a)(2) of
the EAR.
(b) Issuance. (1) The Assistant Secretary may issue an order
temporarily denying to a person any or all of the export privileges
described in part 764 of the EAR upon a showing by BXA that the order
is necessary in the public interest to prevent an imminent violation of
the EAA, the EAR, or any order, license or authorization issued
thereunder.
(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 ex parte basis set forth therein shall be
stated in a manner that is consistent with national security, foreign
policy, business confidentiality, and investigative concerns.
(3) A violation may be ``imminent'' either in time or in degree of
likelihood. To establish grounds for the temporary denial order, BXA
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, BXA 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 ex
parte basis shall be given in accordance with Sec. 766.5(b) of this
part upon issuance.
[[Page 12914]]
(c) Related persons. A temporary denial order may be made
applicable to related persons in accordance with Sec. 766.23 of this
part.
(d) Renewal. (1) If, no later than 20 days before the expiration
date of a temporary denial order, BXA believes that renewal of the
denial order is necessary in the public interest to prevent an imminent
violation, BXA may file a written request setting forth the basis for
its belief, including any additional or changed circumstances, asking
that the Assistant Secretary renew the temporary denial order, with
modifications, if any are appropriate, for an additional period not
exceeding 180 days. BXA's request shall be delivered to the respondent,
or any agent designated for this purpose, in accordance with
Sec. 766.5(b) of this part, which will constitute notice of the renewal
application.
(2) Non-resident respondents. To facilitate timely notice of
renewal requests, a respondent not a resident of the United States may
designate a local agent for this purpose and provide written
notification of such designation to BXA in the manner set forth in
Sec. 766.5(b) of this part.
(3) Hearing. (i) A respondent may oppose renewal of a temporary
denial order by filing with the Assistant Secretary a written
submission, supported by appropriate evidence, to be received not later
than seven days before the expiration date of such order. For good
cause shown, the Assistant Secretary may consider submissions received
not later than five days before the expiration date. The Assistant
Secretary ordinarily will not allow discovery; however, for good cause
shown in respondent's submission, he/she may allow the parties to take
limited discovery, consisting of a request for production of documents.
If requested by the respondent in the written submission, the Assistant
Secretary shall hold a hearing on the renewal application. The hearing
shall be on the record and ordinarily will consist only of oral
argument. The only issue to be considered on BXA's request for renewal
is whether the temporary denial order should be continued to prevent an
imminent violation as defined herein.
(ii) Any person designated as a related person may not oppose
issuance or renewal of the temporary denial order, but may file an
appeal in accordance with Sec. 766.2(3)(c) of this part.
(iii) If no written opposition to BXA'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) Appeals. (1) Filing. (i) A respondent may, at any time, file an
appeal of the initial or renewed temporary denial order with the
administrative law judge.
(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) Grounds. A respondent may appeal on the grounds that the
finding that the order is necessary in the public interest to prevent
an imminent violation is unsupported.
(3) Appeal procedure. A full written statement in support of the
appeal must be filed with the appeal together with appropriate
evidence, and be simultaneously served on BXA, which shall have seven
days from receipt to file a reply. Service on the administrative law
judge shall be addressed to the Office of the Administrative Law Judge,
U.S. Department of Commerce, Room H-6716, 14th Street and Constitution
Avenue, N.W., Washington, D.C. 20230. Service on BXA shall be as set
forth in Sec. 766.5(b) of this part. The administrative law judge
normally will not hold hearings or entertain oral argument on appeals.
(4) Recommended Decision. Within 10 working days after an appeal is
filed, the administrative law judge shall submit a recommended decision
to the Under Secretary, and serve copies on the parties, recommending
whether the issuance or the renewal of the temporary denial order
should be affirmed, modified or vacated.
(5) Final decision. Within five working days after receipt of the
recommended decision, the Under Secretary shall issue a written order
accepting, rejecting or modifying the recommended decision. Because of
the time constraints, the Under Secretary's review will ordinarily be
limited to the written record for decision, including the transcript of
any hearing. The issuance or renewal of the temporary denial order
shall be affirmed only if there is reason to believe that the temporary
denial order is required in the public interest to prevent an imminent
violation of the EAA, the EAR, or any order, license or other
authorization issued under the EAA. The Under Secretary's written order
is final and is not subject to judicial review, except as provided in
paragraph (g) of this section.
(f) Delivery. A copy of any temporary denial order issued or
renewed and any final decision on appeal shall be published in the
Federal Register and shall be delivered to BXA and to the respondent,
or any agent designated for this purpose, and to any related person in
the same manner as provided in Sec. 766.5 of this part for filing for
papers other than a charging letter.
(g) Judicial review. A respondent temporarily denied export
privileges by order of the Under Secretary may appeal to the United
States Court of Appeals for the District of Columbia pursuant to 50
U.S.C. app. Sec. 2412(d)(3).
Sec. 766.25 Administrative action denying permission to apply for or
use export licenses.
(a) General. The Director of the Office of Exporter Services, in
consultation with the Director of the Office of Export Enforcement, may
deny permission to apply for or use any license, including any License
Exception, to any person who has been convicted of a violation of the
EAA, the EAR, or any order, license or authorization issued thereunder;
any regulation, license or order issued under the International
Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794
or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C.
783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).
(b) Procedure. Upon notification that a person has been convicted
of a violation of one or more of the provisions specified in paragraph
(a) of this section, the Director of the Office of Exporter Services,
in consultation with the Director of the Office of Export Enforcement,
will determine whether to deny permission to apply for or use any
export license, including any License Exception, to any such person.
The Director of the Office of Exporter Services will notify each person
denied under this section by letter stating that permission to apply
for or use export licenses has been denied.
(c) Criteria. In determining whether and for how long to deny U.S.
export privileges to a person previously convicted of one or more of
the statutes set forth in paragraph (a) of this section, the Director
of the Office of Exporter Services may take into consideration any
relevant information, including, but not limited to, the seriousness of
the offense involved in the criminal prosecution, the nature and
duration of the criminal sanctions imposed, and whether the person has
undertaken any corrective measures.
(d) Duration. Any denial of permission to apply for or use export
[[Page 12915]]
licenses, including any License Exception, under this section shall not
exceed 10 years from the date of the conviction of the person who is
subject to the denial.
(e) Effect. Any person denied permission to apply for and use
licenses under this section will be considered a ``person denied export
privileges'' for purposes of Sec. 736.2(b)(4) (General Prohibition 4--
Engage in actions prohibited by a denial order) and Sec. 764.2(k) of
the EAR.
(f) Publication. The name and address(es) of any person denied
permission to apply for or use export licenses under this section will
be published as described in Supplement No. 2 to part 764 of the EAR,
noting that such action was taken pursuant to this section and section
11(h) of the EAA.
(g) Appeal. An appeal of an action under this section will be
pursuant to part 756 of the EAR.
(h) Applicability to related person. The Director of the Office of
Exporter Services, in consultation with the Director of the Office of
Export Enforcement, may take action in accordance with Sec. 766.23 of
this part to make applicable to related persons an order that is being
sought or that has been issued under this section.
PART 768--FOREIGN AVAILABILITY DETERMINATION PROCEDURES AND
CRITERIA
Sec. 768.1 Introduction.
Sec. 768.2 Foreign availability described.
Sec. 768.3 Foreign availability assessment.
Sec. 768.4 Initiation of an assessment.
Sec. 768.5 Contents of foreign availability submissions and
Technical Advisory Committee certifications.
Sec. 768.6 Criteria.
Sec. 768.7 Procedures.
Sec. 768.8 Eligibility of expedited licensing procedures for non-
controlled countries.
Sec. 768.9 Appeals of negative foreign availability determinations.
Sec. 768.10 Removal of controls on less sophisticated items.
Supplement No. 1 to Part 768--Evidence of Foreign Availability
Supplement No. 2 to Part 768--Items Eligible For Expedited Licensing
Procedures
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 768.1 Introduction.
In this part, references to the Export Administration Regulations
(EAR) are references to 15 CFR chapter VII, subchapter C.
(a) Authority. Pursuant to sections 5(f) and 5(h) of the Export
Administration Act (EAA), the Under Secretary of Commerce for Export
Administration directs the Bureau of Export Administration (BXA) in
gathering and analyzing all the evidence necessary for the Secretary to
determine foreign availability.
(b) Scope. This part applies only to the extent that items are
controlled for national security purposes.
(c) Types of programs. There are two general programs of foreign
availability:
(1) Foreign availability to controlled countries. In this category
are denied license assessments (see Secs. 768.4(b) and 768.7 of this
part) and decontrol assessments (see Secs. 768.4(c) and 768.7 of this
part).
(2) Foreign availability to non-controlled countries. In this
category are denied license assessments, decontrol assessments, and
evaluations of eligibility for expedited licensing (see Sec. 768.8 of
this part).
(d) Definitions. The following are definitions of terms used in
this part 768:
Allegation. See foreign availability submission.
Assessment. An evidentiary analysis that BXA conducts concerning
the foreign availability of a given item based on the assessment
criteria, data gathered by BXA, and the data and recommendations
submitted by the Departments of Defense and State and other relevant
departments and agencies, TAC committees, and industry.
Assessment criteria. Statutorily established criteria that must be
assessed for the Secretary to make a determination with respect to
foreign availability. They are, available-in-fact, from a non-U.S.
source, in sufficient quantity so as to render the control ineffective,
and of comparable quality. (See Sec. 768.6 of this part).
Available-in-fact. An item is available-in-fact to a country if it
is produced within the country or if it may be obtained by that country
from a third country. Ordinarily, items will not be considered
available-in-fact to non-controlled countries if the items are
available only under a validated national security license or a
comparable authorization from a country that maintains export controls
on such items cooperatively with the United States.
Claimant. Any party who makes a foreign availability submission,
excluding TACs.
Comparable quality. An item is of comparable quality to an item
controlled under the EAR if it possesses the characteristics specified
in the Commerce Control List (CCL) for that item and is alike in key
characteristics that include, but are not limited to: (1) Function; (2)
technological approach; (3) performance thresholds; (4) maintainability
and service life; and (5) any other attribute relevant to the purpose
for which the control was placed on the item.
Controlled countries. Albania, Armenia, Azerbaijan, Belarus,
Bulgaria, Cambodia, Cuba, Estonia, Georgia, Kazakhstan, Kyrgystan,
Laos, Latvia, Lithuania, Moldova, Mongolia, North Korea, Romania,
Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam and the
People's Republic of China.
Decontrol. Removal of license requirements under the EAR.
Decontrol assessment. An assessment of the foreign availability of
an item to a country or countries for purposes of determining whether
decontrol is warranted. Such assessments may be conducted after BXA
receives a foreign availability submission or a TAC certification, or
by the Secretary's own initiative.
Denied license assessment. A foreign availability assessment
conducted as a result of a claimant's allegation of foreign
availability for an item (or items) that BXA has denied or has issued a
letter of intent to deny a license. If the Secretary determines that
foreign availability exists, BXA's approval of a license will be
limited to the items, countries, and quantities in the allegation.
Determination. The Secretary's decision that foreign availability
within the meaning of the EAA does or does not exist. (See Sec. 768.7
of this part).
Expedited licensing procedure eligibility evaluation. An evaluation
that BXA initiates for the purpose of determining whether an item is
eligible for the expedited licensing procedure. (See Sec. 768.8 of this
part).
Expedited licensing procedures. Under expedited licensing
procedures, BXA reviews and processes a license application for the
export of an eligible item to a non-controlled country within statutory
time limits. Licenses are deemed approved unless BXA denies within the
statutory time limits (See Sec. 768.8 of this part).
Foreign availability submission (FAS). An allegation of foreign
availability a claimant makes, supported by reasonable evidence, and
submits to BXA. (See Sec. 768.5 of this part).
Item. Any commodity, software, or technology.
Items eligible for non-controlled country expedited licensing
procedures. The items described in Supplement No. 2 to this part 768
are eligible for the
[[Page 12916]]
expedited license procedures (See Sec. 768.8 of this part).
National Security Override (NSO). A Presidential decision to
maintain export controls on an item notwithstanding its foreign
availability as determined under the EAA. The President's decision is
based on his/her determination that the absence of the controls would
prove detrimental to the national security of the United States. Once
the President makes such a decision, the President must actively pursue
negotiations to eliminate foreign availability with the governments of
the sources of foreign availability. (See Sec. 768.7 of this part).
Non-controlled countries. Any country not defined as a controlled
country by this section.
Non-U.S. source/foreign source. A person located outside the
jurisdiction of the United States (as defined in part 772 of the EAR).
Reasonable evidence. Relevant information that is credible.
Reliable evidence. Relevant information that is credible and
dependable.
Secretary. As used in this part, the Secretary refers to the
Secretary of Commerce or his/her designee.
Similar quality. An item is of similar quality to an item that is
controlled under the EAR if it is substantially alike in key
characteristics that may include, but are not limited to: (1) Function;
(2) technological approach; (3) performance thresholds; (4)
maintainability and service life; and (5) any other attribute relevant
to the purpose for which the control was placed on the item.
Sufficient quantity. The amount of an item that would render the
U.S. export control, or the denial of the license in question,
ineffective in achieving its purpose. For a controlled country, it is
the quantity that meets the military needs of that country so that U.S.
exports of the item to that country would not make a significant
contribution to its military potential.
Technical Advisory Committee (TAC). A Committee created under
section 5(h) of the EAA that advises and assists the Secretary of
Commerce, the Secretary of Defense, and any other department, agency,
or official of the Government of the United States to which the
President delegates authority under the EAA on export control matters
related to specific areas of controlled items.
TAC certification. A statement that a TAC submits to BXA, supported
by reasonable evidence, documented as in a FAS, that foreign
availability to a controlled country exists for an item that falls
within the TAC's area of technical expertise.
Sec. 768.2 Foreign availability described.
(a) Foreign availability. Foreign availability exists when the
Secretary determines that an item is comparable in quality to an item
subject to U.S. national security export controls, and is available-in-
fact to a country, from a non-U.S. source, in sufficient quantities to
render the U.S. export control of that item or the denial of a license
ineffective. For a controlled country, such control or denial is
``ineffective'' when maintaining such control or denying a specific
license would not restrict the availability of items that would make a
significant contribution to the military potential of the controlled
country or combination of countries detrimental to the national
security of the United States (see sections 5(a) and 3(2)(A) of the
EAA.)
(b) Types of foreign availability. There are two types of foreign
availability:
(1) Foreign availability to a controlled country; and
(2) Foreign availability to a non-controlled country.
(Note to paragraph (b) of this section: See Sec. 768.7 of this part
for delineation of the foreign availability assessment procedures,
and Sec. 768.6 of this part for the criteria used in determining
foreign availability)
Sec. 768.3 Foreign availability assessment.
(a) Foreign availability assessment. A foreign availability
assessment is an evidentiary analysis that BXA conducts to assess the
foreign availability of a given item according to the assessment
criteria, based on data submitted by a claimant, the data gathered by
BXA, and the data and recommendations submitted by the Departments of
Defense and State and other relevant departments and agencies, TAC
committees, and industry. BXA uses the results of the analysis in
formulating its recommendation to the Secretary on whether foreign
availability exists for a given item. If the Secretary determines that
foreign availability exists, the Secretary will decontrol the item for
national security reasons or approve the license in question if there
is no foreign policy reason to deny the license, unless the President
exercises a National Security Override (see Sec. 768.7 of this part).
(b) Types of assessments. There are two types of foreign
availability assessments:
(1) Denied license assessment; and
(2) Decontrol assessment.
(c) Expedited licensing procedures. See Sec. 768.8 of this part for
the evaluation of eligibility of an item for the expedited licensing
procedures.
Sec. 768.4 Initiation of an assessment.
(a) Assessment request. To initiate an assessment, each claimant or
TAC must submit a FAS or a TAC Certification to BXA. TACs are
authorized to certify foreign availability only to controlled
countries. Claimants can allege foreign availability for either
controlled or non-controlled countries.
(b) Denied license assessment. A claimant whose license application
BXA has denied, or for which it has issued a letter of intent to deny
on national security grounds, may request that BXA initiate a denied
license assessment by submitting a Foreign Availability Submission
(FAS) within 90 days after denial of the license. As part of its
submission, the claimant must request that the specified license
application be approved on the grounds of foreign availability. The
evidence must relate to the particular export as described on the
license application and to the alleged comparable item. If foreign
availability is found, the Secretary will approve the license for the
specific items, countries, and quantities listed on the application.
The denied license assessment procedure, however, is not intended to
result in the removal of the U.S. export control on an item by
incrementally providing a country with amounts that, taken together,
would constitute a sufficient quantity of an item. The Secretary will
not approve on foreign availability grounds a denied license if the
approval of such license would itself render the U.S. export control
ineffective in achieving its purpose. In the case of a positive
determination, the Secretary will determine whether a decontrol
assessment is warranted. If so, then BXA will initiate a decontrol
assessment.
(c) Decontrol assessment. (1) Any claimant may at any time request
that BXA initiate a decontrol assessment by a FAS to BXA alleging
foreign availability to any country or countries.
(2) A TAC may request that BXA initiate a decontrol assessment at
any time by submitting a TAC Certification to BXA 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) BXA mailing address. All foreign availability submissions and
TAC certifications should be submitted to: Department of Commerce,
Bureau of Export Administration, 14th Street and Pennsylvania Avenue,
NW, Room 3877, Washington, DC 20230.
[[Page 12917]]
Sec. 768.5 Contents of foreign availability submissions and Technical
Advisory Committee certifications.
(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.
Note to paragraph (c) of this section: See Supplement No. 1 to
part 768 for additional examples of supporting evidence.
(d) Upon receipt of a FAS or TAC certification, BXA will review it
to determine whether there is sufficient evidence to support the belief
that foreign availability may exist. If BXA determines the FAS or TAC
certification is lacking in supporting evidence, BXA will seek
additional evidence from appropriate sources, including the claimant or
TAC. BXA 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 Sec. 768.6 of this part
and the examples of evidence described in Supplement No. 1 to part 768
when assembling supporting evidence for inclusion in the FAS or TAC
certification.
Sec. 768.6 Criteria.
BXA 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 BXA can
recommend a positive determination to the Secretary. The criteria are
defined in Sec. 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.
Sec. 768.7 Procedures.
(a) Initiation of an assessment. (1) Once BXA accepts a FAS or TAC
certification of foreign availability, BXA will notify the claimant or
TAC that it is initiating the assessment.
(2) BXA will publish a Federal Register notice of the initiation of
any assessment.
(3) BXA 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 BXA
has initiated an assessment. Each such department, agency, and
contractor shall provide BXA all relevant information concerning the
item. BXA will invite interested departments and agencies to
participate in the assessment process (See paragraph (e) of this
section).
(b) Data gathering. BXA will seek and consider all available
information that bears upon the presence or absence of foreign
availability, including but not limited to that evidence described in
Sec. 768.5 (b) and (c) of this part. As soon as BXA initiates the
assessment, it will seek evidence relevant to the assessment, including
an analysis of the military needs of a selected country or countries,
technical analysis, and intelligence information from the Departments
of Defense and State, and other U.S. agencies. Evidence is particularly
sought from: industry sources worldwide; other U.S. organizations;
foreign governments; commercial, academic and classified data bases;
scientific and engineering research and development organizations; and
international trade fairs.
(c) Analysis. BXA will conduct its analysis by evaluating whether
the reasonable and reliable evidence that is relevant to each of the
foreign availability criteria provides a sufficient basis to recommend
a determination that foreign availability does or does not exist.
(d) Recommendation and determination. (1) Upon completion of each
assessment, BXA, on the basis of its analysis, will recommend that the
Secretary make a determination either that there is or that there is
not foreign availability, whichever the evidence supports. The
assessment upon which BXA bases its recommendation will accompany the
recommendation to the Secretary.
(2) BXA 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 BXA assessment and recommendation; the
Secretary's determination will take into account the evidence provided
to BXA, the recommendations of the Secretaries of Defense and State and
any other interested agencies, and any other information that the
Secretary considers relevant.
[[Page 12918]]
(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) Interagency review. BXA will notify all appropriate U.S.
agencies and Departments upon the initiation of an assessment and will
invite their participation in the assessment process. BXA will provide
all interested agencies and departments an opportunity to review source
material, draft analyses and draft assessments immediately upon their
receipt or production. For claimant-initiated assessments, BXA will
provide a copy of all positive recommendations and assessments to
interested agencies and departments for their review following the
Secretary's determination of foreign availability. For self-initiated
and TAC-initiated assessments, BXA will provide all interested agencies
an opportunity to review and comment on the assessment.
(f) Notification. (1) No later than 5 months after the initiation
of an assessment based on a FAS (claimant assessments), the Secretary
will inform the claimant in writing and will submit for publication in
the Federal Register a notice that:
(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 Federal
Register (the U.S. Government may remove the license requirement for
exports to non-controlled countries pending completion of the former
COCOM regime review process); or
(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. BXA 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, BXA will
make every effort to complete such assessments and determinations
promptly.
(g) Foreign availability to controlled countries. When the
Secretary determines that an item controlled for national security
reasons is available to a controlled country and the President does not
issue a National Security Override (NSO), BXA will submit the
determination to the Department of State, along with a draft proposal
for the multilateral decontrol of the item or for the former COCOM
regime approval of the license. The Department of State will submit the
proposal or the license for former COCOM regime review. The former
COCOM regime will have up to 4 months for review of the proposal.
(h) Foreign availability to non-controlled countries. If the
Secretary determines that foreign availability to non-controlled
countries exists, the Secretary will decontrol the item for export to
all non-controlled countries where it is found to be available, or
approve the license in question, unless the President exercises a
National Security Override.
(i) Negotiations to eliminate foreign availability. (1) The
President may determine that an export control must be maintained
notwithstanding the existence of foreign availability. Such a
determination is called a National Security Override (NSO) and is based
on the President's decision that the absence of the control would prove
detrimental to the United States national security. Unless extended (as
described in paragraph (i)(7) of this section), an NSO is effective for
6 months. Where the President invokes an NSO, the U.S. Government will
actively pursue negotiations with the government of any source country
during the 6 month period to eliminate the availability.
(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, BXA will publish notices in the Federal
Register consisting of:
(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, BXA will retain the
control only to the extent that foreign availability is eliminated. If
foreign availability is not eliminated, BXA 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
[[Page 12919]]
foreign availability is eliminated, BXA will remove the license
requirement for the export of the item to any country that has agreed
to eliminate foreign availability.
(j) Changes in foreign availability. If BXA becomes aware of
conditions, including new evidence, that affect a previous
determination that foreign availability exists or does not exist, BXA
may review the conditions. If BXA finds that the foreign availability
previously determined no longer exists, or that foreign availability
not earlier found now does exist, BXA will make a recommendation to the
Secretary of Commerce for the appropriate changes in the control. The
Secretary of Commerce will make a determination, and BXA will publish a
Federal Register notice of the determination.
Sec. 768.8 Eligibility of expedited licensing procedures for non-
controlled countries.
(a) BXA 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) BXA 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, BXA will notify the claimant or
TAC of the receipt and initiation of an evaluation and publish a
Federal Register notice of the initiation of the evaluation.
(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 BXA evaluation and recommendation, taking into
consideration the evidence the Secretaries of Defense, State, and other
interested agencies provide to BXA and any other information that the
Secretary considers relevant.
(f) Within 30 days of the receipt of the FAS or TAC certification,
BXA will publish the Secretary's determination in the Federal Register,
that the item will or will not be eligible for expedited licensing
procedures to the stated countries and, where appropriate, amend
Supplement No. 2 to part 768.
(g) Following completion of a self-initiated evaluation, BXA 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 Export Administration, 14th Street and Pennsylvania
Avenue, NW., Room 3877, Washington, DC 20230.
Sec. 768.9 Appeals of negative foreign availability determinations.
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.
Sec. 768.10 Removal of controls on less sophisticated items.
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 BXA has decontrolled for foreign availability reasons.
Supplement No. 1 to Part 768--Evidence of Foreign Availability
This Supplement provides a list of examples of evidence that the
Bureau of Export Administration (BXA) 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. BXA
combines the submitted evidence with the evidence that it collects from
other sources. BXA evaluates all evidence, taking into account factors
that may include, but are not limited to: Information concerning the
source of the evidence, corroborative or contradictory indications, and
experience concerning the reliability or reasonableness of such
evidence. BXA will assess all relevant evidence to determine whether
each of the four criteria has been met. Where possible, all information
should be in writing. If information is based on third party
documentation, the submitter should provide such documentation to BXA.
If information is based on oral statements a third party made, the
submitter should provide a memorandum of the conversation to BXA if the
submitter cannot obtain a written memorandum from the source. BXA will
amend this informational list as it identifies new examples of
evidence.
(a) Examples of evidence of foreign availability:
The following are intended as examples of evidence that BXA will
consider in evaluating foreign availability. BXA will evaluate all
evidence according to the provisions in Sec. 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) Available-in-fact:
(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
[[Page 12920]]
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) Foreign (non-U.S.) source:
(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 Sec. 732.4 of the EAR.
(3) Sufficient quantity:
(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) Comparable quality:
(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.
Supplement No. 2 to Part 768--Items Eligible for Expedited Licensing
Procedures--[Reserved]
PART 770--INTERPRETATIONS
Sec.
770.1 Introduction.
770.2 Commodity interpretations.
770.3 Interpretations related to exports of technology and software
to destinations in Country Group D:1.
770.4 Interpretations related to chemical mixtures--de minimis
exceptions examples.
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 770.1 Introduction.
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.
Sec. 770.2 Commodity interpretations.
(a) Interpretation 1: Anti-friction bearing or bearing systems and
specially designed parts. (1) Anti-friction bearings or bearing systems
shipped as spares or replacements are classified under Export Control
Classification Numbers (ECCNs) 2A001, 2A002, 2A003, 2A004, 2A005, and
2A006 (ball, roller, or needle-roller bearings and parts). This applies
to separate shipments of anti-friction bearings or bearing systems and
anti-friction bearings or bearing systems shipped with machinery or
equipment for which they are intended to be used as spares or
replacement parts.
(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) Interpretation 2: Classification of ``parts'' of machinery,
equipment, or other items. (1) An assembled machine or unit of
equipment is being exported. In instances where one or more assembled
machines or units of equipment are being exported, the individual
component parts that are physically incorporated into the machine or
equipment do not require a license. The license or general exception
under which the complete machine or unit of equipment is exported will
also cover its component parts, provided that the parts are normal and
usual components of the machine or equipment being exported, or that
the physical incorporation is not used as a device to evade the
requirement for a license.
(2) Parts are exported as spares, replacements, for resale, or for
stock. In instances where parts are exported as spares, replacements,
for resale, or for stock, a license is required only if the appropriate
entry for the part specifies that a license is required for the
intended destination.
(c) Interpretation 3: Wire or cable cut to length. (1) Wire or
cable may be included as a component of a system or piece of equipment,
whether or not the
[[Page 12921]]
wire or cable is cut to length and whether or not it is fitted with
connectors at one or both ends, so long as it is in normal quantity
necessary to make the original installation of the equipment and is
necessary to its operation.
(2) Wire or cable exported as replacement or spares, or for further
manufacture is controlled under the applicable wire or cable ECCN only.
This includes wire or cable, whether or not cut to length or fitted
with connectors at one or both ends.
(d) Interpretation 4: Telecommunications equipment and systems.
Control equipment for paging systems (broadcast radio or selectively
signalled receiving systems) is defined as circuit switching equipment
in Category 5 of the CCL.
(e) Interpretation 5: Numerical control systems. (1) Classification
of ``Numerical Control'' Units. ``Numerical control'' units for machine
tools, regardless of their configurations or architectures, are
controlled by their functional characteristics as described in ECCN
2B001.a. ``Numerical control'' units include computers with add-on
``motion control boards''. A computer with add-on ``motion control
boards'' for machine tools may be controlled under ECCN 2B001.a even
when the computer alone without ``motion control boards'' is not
subject to licensing requirements under Category 4 and the ``motion
control boards'' are not controlled under ECCN 2B001.b.
(2) Export documentation requirement. (i) When preparing a license
application for a numerical control system, the machine tool and the
control unit are classified separately. If either the machine tool or
the control unit requires a license, then the entire unit requires a
license. If either a machine tool or a control unit is exported
separately from the system, the exported component is classified on the
license application without regard to the other parts of a possible
system.
(ii) When preparing the Shipper's Export Declaration (SED), a
system being shipped complete (i.e., machine and control unit), should
be reported under the Schedule B number for each machine. When either a
control unit or a machine is shipped separately, it should be reported
under the Schedule B number appropriate for the individual item being
exported.
(f) Interpretation 6: Parts, accessories, and equipment exported as
scrap. Parts, accessories, or equipment that are being shipped as scrap
should be described on the SED in sufficient detail to be identified
under the proper ECCN. When commodities declared as parts, accessories,
or equipment are shipped in bulk, or are otherwise not packaged,
packed, or sorted in accordance with normal trade practices, the
Customs Officer may require evidence that the shipment is not scrap.
Such evidence may include, but is not limited to, bills of sale, orders
and correspondence indicating whether the commodities are scrap or are
being exported for use as parts, accessories, or equipment.
(g) Interpretation 7: Scrap arms, ammunition, and implements of
war. Arms, ammunition, and implements of war, as defined in the U.S.
Munitions List, and are under the jurisdiction of the U.S. Department
of State (22 CFR parts 120 through 130), except for the following,
which are under the jurisdiction of the Department of Commerce:
(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 identify 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 Office 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) Interpretation 8: Military automotive vehicles and parts for
such vehicles. (1) Military automotive vehicles. (i) For purposes of
U.S. export controls, military automotive vehicles ``possessing or
built to current military specifications differing materially from
normal commercial specifications'' may include, but are not limited to,
the following characteristics:
(A) Special fittings for mounting ordnance or military equipment;
(B) Bullet-proof glass;
(C) Armor plate;
(D) Fungus preventive treatment;
(E) Twenty-four volt electrical systems;
(F) Shielded electrical system (electronic emission suppression);
or
(G) Puncture-proof or run-flat tires.
(ii) Automotive vehicles fall into two categories.
(A) Military automotive vehicles on the Munitions List, new and
used. Automotive vehicles in this category are primarily combat
(fighting) vehicles, with or without armor and/or armament, ``designed
for specific fighting function.'' These automotive vehicles are
licensed for export by the U.S. Department of State (22 CFR parts 120
through 130).
(B) Military automotive vehicles not on the U.S. Munitions List,
new and used. Automotive vehicles in this category are primarily
transport vehicles designed for non-combat military purposes
(transporting cargo, personnel and/or equipment, and/or for to wing
other vehicles and equipment over land and roads in close support of
fighting vehicles and troops). These automotive vehicles are licensed
for export by the U.S. Department of Commerce.
(iii) Parts for military automotive vehicles. Functional parts are
defined as those parts making up the power train of the vehicles,
including the electrical system, the cooling system, the fuel system,
and the control system (brake and steering mechanism), the front and
rear axle assemblies including the wheels, the chassis frame, springs
and shock absorbers. Parts specifically designed for military
automotive vehicles on the Munitions List are licensed for export by
the U.S. Department of State (22 CFR parts 120 through 130).
(iv) General instructions. Manufacturers of non-Munitions List
automotive vehicles and/or parts will know whether their products meet
the conditions described in this paragraph (h). Merchant exporters and
other parties who are not sure whether their products (automotive
vehicles and/or parts) meet these conditions should check with their
suppliers for the required information before making a shipment under
general exception or submitting an application to BXA for a license.
(2) [Reserved]
(i) Interpretation 9: Aircraft, parts, accessories and components.
Aircraft, parts, accessories, and components defined in Categories VIII
and IX of the Munitions List are under the export licensing authority
of the U.S. Department of State (22 CFR parts 120 through 130). All
other aircraft, and parts, accessories and components therefor, are
under the export licensing
[[Page 12922]]
authority of the U.S. Department of Commerce. The following aircraft,
parts, accessories and components are under the licensing authority of
the U.S. Department of Commerce:
(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 equipment, such as gun mounts, turrets, rocket launchers, or
similar equipment designed for military combat or military training
purposes.
(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) Interpretation 10: Civil aircraft inertial navigation
equipment. (1) The Department of Commerce has licensing jurisdiction
over exports and reexports to all destinations of inertial navigation
systems, inertial navigation equipment, and specially designed
components therefor for ``civil aircraft''.
(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) Interpretation 11: Precursor chemicals. The following chemicals
are controlled by ECCN 1C350. The appropriate Chemical Abstract Service
Registry (C.A.S.) number and synonyms, (i.e., alternative names) are
included to help you determine whether your chemicals are controlled by
this entry. These chemicals require a license to all countries except
Argentina, Australia, Austria, Belgium, Canada, Denmark, Czech
Republic, Finland, France, Germany, Greece, Hungary, Iceland, Ireland,
Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway,
Portugal, Spain, Sweden, Switzerland, and the United Kingdom.
(1) (C.A.S. #1341-49-7) Ammonium hydrogen bifluoride
Acid ammonium fluoride
Ammonium bifluoride
Ammonium difluoride
Ammonium hydrofluoride
Ammonium hydrogen bifluoride
Ammonium hydrogen difluoride
Ammonium monohydrogen difluoride
(2) (C.A.S. #7784-34-1) Arsenic trichloride
Arsenic (III) chloride
Arsenous chloride
Fuming liquid arsenic
Trichloroarsine
(3) (C.A.S. #76-93-7) Benzilic acid
.alpha.,.alpha.-Diphenyl-.alpha.-hydroxyacetic acid
Diphenylglycolic acid
.alpha.,.alpha.-Diphenylglycolic acid
Diphenylhydroxyacetic acid
.alpha.-Hydroxy-2,2-diphenylacetic acid
2-Hydroxy-2,2-diphenylacetic acid
.alpha.-Hydroxy-.alpha.-phenylbenzeneacetic acid
Hydroxydiphenylacetic acid
(4) (C.A.S. #107-07-3) 2-Chloroethanol
2-Chloro-1-ethanol
Chloroethanol
2-Chloroethyl alcohol
Ethene chlorohydrin
Ethylchlorohydrin
Ethylene chlorhydrin
Ethylene chlorohydrin
Glycol chlorohydrin
Glycol monochlorohydrin
2-Hydroxyethyl chloride
(5) (C.A.S. #78-38-6) Diethyl ethylphosphonate Ethylphosphonic acid
diethyl ester
(6) (C.A.S. #15715-41-0) Diethyl methylphosphonite
Diethoxymethylphosphine
Diethyl methanephosphonite
0,0-Diethyl methylphosphonite
Methyldiethoxyphosphine
Methylphosphonous acid diethyl ester
(7) (C.A.S. #2404-03-7) Diethyl-N, N-dimethylphosphoro-amidate
N,N-Dimethyl-O,O'-diethyl phosphoramidate
Diethyl dimethylphosphoramidate
Dimethylphosphoramidic acid diethyl ester
(8) (C.A.S. #762-04-9) Diethyl phosphite
Diethoxyphosphine oxide
Diethyl acid phosphite
Diethyl hydrogen phosphite
Diethyo phosphonate
Hydrogen diethyl phosphite
(9) (C.A.S. #100-37-8) N, N-Diethylethanolamine
N,N-Diethyl-2-aminoethanol
Diethyl (2-hydroxyethyl) amine
N,N-Diethyl-N-(.beta.-hydroxyethyl) amine
N,N-Diethyl-2-hydroxyethylamine
Diethylaminoethanol
2-(Diethylamino) ethanol
2-(Diethylamino)ethyl alcohol
N,N-Diethylmonoethanolamine
(2-Hydroxyethyl) diethylamine
2-Hydroxytriethylamine
(10) (C.A.S. #5842-07-9) N,N-Diisopropyl-.beta.-aminoethane thiol
2-(Diisopropylamino) ethanethiol
Diisopropylaminoethanethiol
.beta.-Diisopropylaminoethanethiol
2-(bis(1-Methylethyl)amino) ethanethiol
(11) (C.A.S. #4261-68-1) N, N-Diisopropyl-.2-aminoethyl chloride
hydrochloride
(12) (C.A.S. #96-80-0) N,N-Diisopropyl-.beta.-aminoethanol
N,N-Diisopropyl-2-aminoethanol
2-(Diisopropylamino) ethanol
(N,N-Diisopropylamino) ethanol
2-(Diisopropylamino) ethyl alcohol
N,N-Diisopropylethanolamine
(13) (C.A.S. #96-79-7) N,N-Diisopropyl-.beta.-aminoethyl chloride
2-Chloro-N,N-diisopropylethanamine
1-Chloro-N,N-diisopropylaminoethane
2-Chloro-N,N-diisopropylethylamine
N-(2-chloroethyl)-N-(1-methylethyl)-2-propanamine
N-(2-Chloroethyl) diisopropylamine
N,N-Diisopropyl-2-chloroethylamine
1-(Diisopropylamino)-2-cholorethane
2-(Diisopropylamino)ethyl chloride
Diisopropylaminoethyl chloride
.beta.-Diisopropylaminoethyl chloride
(14) (C.A.S. #108-18-9) Diisopropylamine
N,N-Diisopropylamine
N-(1-Methylethyl)-2-propanamine
(15) (C.A.S. #6163-75-3) Dimethyl ethylphosphonate
Dimethyl ethanephosphonate
Ethylphosphonic acid dimethyl ester
(16) (C.A.S. #756-79-6) Dimethyl methylphosphonate
Dimethoxymethyl phosphine oxide
Dimethyl methanephosphonate
Methanephosphonic acid dimethyl ester
Methylphosphonic acid dimethyl ester
(17) (C.A.S. #868-85-9) Dimethyl phosphite
Dimethoxyphosphine oxide
Dimethyl acid phosphite
Dimethyl hydrogen phosphite
[[Page 12923]]
Dimethyl phosphonate
Hydrogen dimethyl phosphite
Methyl phosphate
(18) (C.A.S. #124-40-3) Dimethylamine
N-Methyl methanamine
(19) (C.A.S. #506-59-2) Dimethylamine hydrochloride
Dimethylammonium chloride
N-Methyl methanamine hydrochloride
(20) (C.A.S. #57856-11-8) O-Ethyl-2-diisoprophylaminoethyl
methylphosphonite (QL)
Methylphosphonous acid 2-(bis(1-methylethyl)amino)ethyl ethyl ester
(21) (C.A.S. #1498-40-4) Ethylphosphonous dichloride
Dichloroethylphosphine
Ethyl phosphonous dichloride
Ethyldichlorophosphine
(22) (C.A.S. #430-78-4) Ethylphosphonus difluoride
Ethyldifluorophosphine
(23) (C.A.S. #1066-50-8) Ethylphosphonyl dichloride
Dichloroethylphosphine oxide
Ethanephosphonyl chloride
Ethylphosphinic dichloride
Ethylphosphonic acid dichloride
Ethylphosphonic dichloride
(24) (C.A.S. #753-98-0) Ethylphosphonyl difluoride
Ethyl difluorophosphite
Ethyldifluorophosphine oxide
Ethylphosphonic difluoride
(25) (C.A.S. #7664-39-3) Hydrogen fluoride
Anhydrous hydrofluoric acid
Fluorhydric acid
Fluorine monohydride
Hydrofluoric acid gas
(26) (C.A.S. #3554-74-3) 3-Hydroxyl-1-methylpiperidine
3-Hydroxy-N-methylpiperidine
1-Methyl-3-hydroxypiperidine
N-Methyl-3-hydroxypiperidine
1-Methyl-3-piperidinol
N-Methyl-3-piperidonol
(27) (C.A.S. #76-89-1) Methyl benzilate
Benzilic acid methyl ester
.alpha.-Hydroxy-.alpha.-phenylbenzeneacetic acid methyl ester
Methyl .alpha.-phenylmandelate
Methyl diphenylglycolate
(28) (C.A.S. #676-83-5) Methylphosphonous dichloride
Dichloromethylphosphine
Methyldichlorophosphine
Methylphosphorus dichloride
(29) (C.A.S. #753-59-3) Methylphosphonous diflouride
Difluoromethylphosphine
Methyldifluorophosphine
(30) (C.A.S. #676-97-1) Methylphosphonyl dichloride
Dichloromethylphosphine oxide
Methanephosphonodichloridic acid
Methanephosphonyl chloride
Methylphosphonic acid dichloride
Methylphosphonic dichloride
Methylphosphonodichloridic acid
Methylphosphonyl chloride
(31) (C.A.S. #676-99-3) Methylphosphonyl difluoride
Difluoromethylphosphine oxide
Methyl difluorophosphite
Methylphosphonic difluoride
(32) (C.A.S. #10025-87-3) Phosphorus oxychloride
Phosphonyl trichloride
Phosphoric chloride
Phosphoric trichloride
Phosphoroxychloride
Phosphoroxytrichloride
Phosphorus chloride oxide
Phosphorus monoxide trichloride
Phosphorus oxide trichloride
Phosphorus oxytrichloride
Phosphorus trichloride oxide
Phosphoryl trichloride
Trichlorophosphine oxide
Trichlorophosphorus oxide
(33) (C.A.S. #10026-13-8) Phosphorus pentachloride
Pentachlorophosphorane
Pentachlorophosphorus
Phosphoric chloride
Phosphorus(V) chloride
Phosphorus perchloride
(34) (C.A.S. #1314-80-3) Phosphorus pentasulfide
Diphosphorus pentasulfide
Phosphoric sulfide
Phosphorus persulfide
Phosphorus sulfide
(35) (C.A.S. #7719-12-2) Phosphorus trichloride
Phosphorus chloride
Trichlorophosphine
(36) C.A.S. #75-97-8) Pinacolone
tert-Butyl methyl ketone
2,2-Dimethyl-3-butanone
3,3-Dimethyl-2-butanone
2,2-Dimethylbutanone
3,3-Dimethylbutanone
1,1-Dimethylethyl methyl ketone
Methyl tert-butyl ketone
Pinacolin
Pinacoline
1,1,1-Trimethylacetone
(37) (C.A.S. #464-07-3) Pinacolyl alcohol
tert-Butyl methyl carbinol
2,2-Dimethyl-3-butanol
3,3-Dimethyl-2-butanol
1-Methyl-2,2-dimethylpropanol
(38) (C.A.S. #151-50-8) Potassium cyanide
(39) (C.A.S. #7789-23-3) Potassium fluoride
Potassium monofluoride
(40) (C.A.S. #7789-29-9) Potassium hydrogen fluoride
Hydrogen potassium difluoride
Hydrogen potassium fluoride
Potassium acid fluoride
Potassium bifluoride
Potassium hydrogen difluoride
Potassium monohydrogen difluoride
(41) (C.A.S. #1619-34-7) 3-Quinuclidinol
1-Azabicyclo(2.2.2)octan-3-ol
3-Hydroxyquinuclidine
(42) (C.A.S. #3731-38-2) 3-Quinuclidinone
1-Azabicyclo(2.2.2)octan-3-one
3-Oxyquinuclidine
Quinuclidone
(43) (C.A.S.) #1333-83-1) Sodium bifluoride
Sodium hydrogen difluoride
Sodium hydrogen fluoride
(44) (C.A.S. #143-33-9) Sodium cyanide
(45) (C.A.S. #7681-49-4) Sodium fluoride
Sodium monofluoride
(46) (C.A.S. #1313-82-2) Sodium sulfide
Disodium monosulfide
Disodium sulfide
Sodium monosulfide
Sodium sulphide
(47) (C.A.S. #10025-67-9) Sulfur Monochloride
(48) (C.A.S. #10545-99-0) Sulfur dicholoride
(49) (C.A.S. #111-48-8) Thiodiglycol
Bis(2-hydroxyethyl) sulfide
Bis(2-hydroxyethyl) thioether
Di(2-hydroxyethyl) sulfide
Diethanol sulfide
2,2'-Dithiobis-(ethanol)
3-Thiapentane-1,5-diol
2,2'-Thiobisethanol
2,2'-Thiodiethanol
Thiodiethylene glycol
2,2'-Thiodiglycol
(50) C.A.S. #7719-09-7) Thionyl chloride
Sulfinyl chloride
Sulfinyl dichloride
Sulfur chloride oxide
Sulfur oxychloride
Sulfurous dichloride
Sulfurous oxychloride
Thionyl dichloride
(51) (C.A.S. #102-71-6) Triethanolamine
Alkanolamine 244
Nitrilotriethanol
2,2',2''-Nitrilotriethanol
2,2',2''-Nitrilotris(ethanol)
TEA
TEA (amino alcohol)
Tri (2-hydroxyethyl) amine
Triethanolamin
Tris (.beta.-hydroxyethyl) amine
Tris (2-hydroxyethyl) amine
Trolamine
(52) (C.A.S. #637-39-8) Triethanolamine hydrochloride
(53) (C.A.S. #122-52-1) Triethyl phosphite
Phosphorous acid triethyl ester
Triethoxyphosphine
Tris(ethoxy)phosphine
[[Page 12924]]
(54) (C.A.S. #121-45-9) Trimethyl phosphite
Phosphorus acid trimethyl ester
Trimethoxyphosphine
Sec. 770.3 Interpretations related to exports of technology and
software to destinations in Country Group D:1.
(a) Introduction. This section is intended to provide you
additional guidance on how to determine whether your technology or
software would be eligible for a License Exception, may be exported
under NLR, or require a license, for export to Country Group D:1.
(b) Scope of licenses. The export of technology and software under
a license is authorized only to the extent specifically indicated on
the face of the license. The only technology and software related to
equipment exports that may be exported without a license is technology
described in Secs. 734.7 through 734.11 of the EAR; operating
technology and software described in Sec. 740.8(a) of the EAR; sales
technology described in Sec. 740.8(b) of the EAR; and software updates
described in Sec. 740.8(c) of the EAR.
(c) Commingled technology and software. (1) U.S.-origin technology
does not lose its U.S.-origin when it is redrawn, used, consulted, or
otherwise commingled abroad in any respect with other technology of any
other origin. Therefore, any subsequent or similar technical data
prepared or engineered abroad for the design, construction, operation,
or maintenance of any plant or equipment, or part thereof, which is
based on or utilizes any U.S.-origin technology, is subject to the EAR
is the same manner as the original U.S.-origin technology, including
license requirements, unless the commingled technology is not subject
to the EAR by reason of the de minimis exclusions described at
Sec. 732.4 of the EAR.
(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 de
minimis exclusions described at Sec. 732.4 of the EAR.
(d) Certain License Exception. The following questions and answers
are intended to further clarify the scope of technology and software
eligible for a License Exception.
(1)(i) Question 1. (A) Our engineers, in installing or repairing
equipment, use techniques (experience as well as proprietary knowledge
of the internal componentry or specifications of the equipment) that
exceed what is provided in the standard manuals or instructions
(including training) given to the customer. In some cases, it is also a
condition of the license that such information provided to the customer
be constrained to the minimum necessary for normal installation,
maintenance and operation situations.
(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 for operating technology and software
(OTS) described in Sec. 740.8(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) Answer 1. Export of technology includes release of U.S.-origin
data in a foreign country, and ``release'' includes ``application to
situations abroad of personal knowledge or technical experience
acquired in the United States.'' As the release of technology in the
circumstances described here would exceed that permitted under the
License Exception for operating technology and software described in
Sec. 740.8(a) of the EAR, a license would be required even though the
technician could apply the data without disclosing it to the customer.
(2)(i) Question 2. We plan, according to our normal business
practices, to train customer engineers to maintain equipment that we
have exported under a license, License Exception, or NLR. The training
is contractual in nature, provided for a fee, and is scheduled to take
place in part in the customer's facility and in part in the U.S. Can we
now proceed with this training at both locations under a License
Exception?
(ii) Answer 2. (A) Provided that this is your normal training, and
involves technology contained in your manuals and standard instructions
for the exported equipment, and meets the other requirements of License
Exception for operating technology and software (OTS) described in
Sec. 740.8(a), the training may be provided within the limits of that
License Exception. The location of the training is not significant, as
the export occurs at the time and place of the actual transfer or
imparting of the technology to the customer's engineers.
(B) Any training beyond that covered under the provisions of
License Exception for operating technology and software (OTS) described
in Sec. 740.8(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.
Sec. 770.4 Interpretations related to chemical mixtures--de minimis
exceptions examples.
(a)(1) Introduction: The following are examples for applying the de
minimis exceptions for chemical mixtures containing precursor and
intermediate chemicals controlled under ECCN 1C350.
(2) In ECCN 1C350, Note 2, paragraphs (c) and (d) within the
Mixtures Exemptions state that a validated license is required when at
least one of the listed chemicals constitutes more than 10% or 25%,
respectively, of the weight of the mixture on a solvent free basis.
(b)(1) Example One. A mixture contains the following components:
(i) 90% polymer polyol (a liquid raw material used to make
polyurethane polymers); and
(ii) 10% Australia Group (AG)-controlled chemical eligible for 25%
de minimis exemption.
Note to paragraph (b) of this section: The polymer does not
dissolve the AG-controlled chemical.
(2) In this example, the polymer polyol does not dissolve the AG-
controlled chemical (the only other component of the mixture).
Therefore, the polyol is NOT considered a solvent, and the
concentration of the polymer polyol is included in the concentration
calculation. As a result, the AG-controlled chemical's concentration is
10% when calculated on a solvent-free basis (.10/1.00). Accordingly,
this concentration is below the threshold concentration of 25%
applicable to specific AG-controlled chemicals under the chemical
mixtures rule and can be exported under NLR to all destinations except
Iran, Sudan, Syria, and Country Group E:2 in Supplement No. 1 to part
740 of the EAR.
(3) To determine the classification of this mixture, it is
necessary to determine whether the polymer is capable of functioning as
a solvent for the other components of the mixture. If the polymer
polyol is capable of functioning as a solvent for the controlled AG
chemical, then the polymer component is omitted from the concentration
calculation. If the polymer polyol is not capable of functioning as a
solvent for the AG chemical, then the polymer component is included in
the concentration calculation.
[[Page 12925]]
(c)(1) Example Two: An automotive coolant (antifreeze) is a mixture
of the following components:
(i) 75% ethylene glycol;
(ii) 10% additive package; and
(iii) 15% water.
Note to paragraph (c) of this section: The ``additive package''
contains an AG-controlled chemical that is eligible for the 10% de
minimis exemption. This chemical is added as a stabilizer and
represents 9% of the total mixture. The remaining components of the
additive package are various dyes and stabilizers that represent 1%
of the total mixture. Ethylene glycol serves as the basic functional
ingredient that prevents the engine block from freezing, and does
not dissolve the other components of the mixture. The water is added
to keep the mixture in solution.
(2) To determine if this mixture requires a license it is necessary
to calculate the concentration of the AG-controlled chemical on a
solvent-free basis. Since the water dissolves all of the other
components of the mixture, water is considered a ``solvent'' and the
quantity of water present is not included in the calculation of the AG-
chemical concentration. Consequently, the concentration of the AG
chemical is approximately 11% (.09/.85), and the mixture is classified
under ECCN 1C350. Accordingly, since this concentration is above the
threshold concentration of 10% applicable to this category of AG-
controlled chemical under the chemical mixtures rule, a license is
required to all destinations except AG member countries.
(d)(1) Example Three. A pesticide formulation consists of an AG-
controlled chemical that is eligible for the 25% de minimis exemption,
and an active ingredient that is not AG-controlled. The formulation is
diluted with water to allow safe, effective, and economic application.
The resulting mixture is 15% AG chemical, 40% active ingredient and 45%
water. Although the water is added as a diluent, it dissolves the other
components of the mixture.
(2) Since the water dissolves all components in the mixture, it is
considered a solvent even though it was added as a diluent. The percent
concentration of the AG-controlled chemical calculated on a solvent
free basis is .15/.55 = 27%, and the mixture is therefore classified
under ECCN 1C350. Accordingly, since this concentration is above the
threshold concentration of 25% applicable to this category of AG-
controlled chemicals under the chemical mixtures rule, a license is
required to all destinations except AG member countries.
(e)(1) Example Four. A mixture contains the following components:
(i) 10% water;
(ii) 22% Chemical A;
(iii) 21% Chemical B;
(iv) 20% Chemical C;
(v) 19% Chemical D; and
(vi) 8% Chemical E.
Note to paragraph (e) of this section: The water is added to
dissolve the other components of the mixture. Chemicals A, B, C, and
D are AG-controlled chemicals each eligible for 25% de minimis
exemption. Chemical E is an AG-controlled chemical eligible for 10%
de minimis exemption.
(2) In this example, water is considered a solvent since it
dissolves all components in the mixture. Therefore, the quantity of
water present in the mixture is not included in calculating the
concentrations of the controlled chemicals on a solvent-free basis. The
concentrations of the controlled chemicals are as follows: Chemical A
24%; Chemical B 23%; Chemical C 22%; Chemical D 21%; Chemical E 9%. It
is important to note that in this example, even though the cumulative
amount of the mixture (90%) consists of controlled chemicals, each one
of the controlled chemicals is below the de minimis level for its
category. Consequently, this mixture can be exported under NLR to all
destinations except Iran, Sudan, Syria, and Country Group E:2 in
Supplement No. 1 to part 740 of the EAR.
PART 772--DEFINITIONS OF TERMS
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995).
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.
``ATM.'' (Cat 5)--See ``Asynchronous Transfer Mode.''
``Accuracy.'' (Cat 2 and 6)--``Accuracy'' is usually measured in
terms of inaccuracy. It is defined as the maximum deviation, positive
or negative, of an indicated value from an accepted standard or true
value.
``Active flight control systems.'' (Cat 7)--Function to prevent
undesirable ``aircraft'' and ``missile'' motions or structural loads by
autonomously processing outputs from multiple sensors and then
providing necessary preventive commands to effect automatic control.
``Active pixel.'' (Cat 6 and 8)--A maximum (single) element of the
solid state array that has a photoelectric transfer function when
exposed to light (electromagnetic) radiation.
``Adaptive control.'' (Cat 2)--A control system that adjusts the
response from conditions detected during the operation (Ref. ISO 2806-
1980).
Advisory Committee on Export Policy (ACEP). The ACEP voting members
include the Assistant Secretary of Commerce for Export Administration,
and Assistant Secretary-level representatives from the Departments of
State, Defense, Energy, and the Arms Control and Disarmament Agency.
The appropriate representatives of the Joint Chiefs of Staff and the
Director of the Nonproliferation Center of the Central Intelligence
Agency are non-voting members. The Assistant Secretary of Commerce for
Export Administration is the Chair. Appropriate acting Assistant
Secretary, Deputy Assistant Secretary or equivalent of any agency or
department may serve in lieu of the Assistant Secretary of the
concerned agency or department. Such representatives, regardless of
rank, will speak and vote on behalf of their agencies or departments.
The ACEP may invite Assistant Secretary-level representatives of other
Government agencies or departments (other than those identified above)
to participate in the activities of the ACEP when matters of interest
to such agencies or departments are under consideration. Decisions are
made by majority vote.
``Aircraft.'' (Cat 7 and 9)--A fixed wing, swivelwing, rotary wing
(helicopter), tilt rotor or tilt-wing airborne vehicle. (See also
``civil aircraft''.)
Airline. Any person engaged primarily in the transport of persons
or property by aircraft for compensation or hire, pursuant to
authorization by the U.S. Government or a foreign government.
``Angular position deviation.'' (Cat 2)--The maximum difference
between angular position and the actual, very accurately measured
angular position after the workpiece mount of the table has been turned
out of its initial position. (Reference: VDI/VDE 2617, Draft: ``Rotary
tables on coordinate measuring machines'').
Applicant. That person who, as the principal party in interest in
the transaction, has the power and responsibility for determining and
controlling the sending of the item out of the country and is thus, in
reality, the exporter. (For additional information see Sec. 748.4 of
the EAR.) (See also ``U.S. exporter''.)
[[Page 12926]]
``Assembly.'' (Cat 3 and 4)--A number of electronic components
(i.e.,''circuit elements'', ``discrete components'', integrated
circuits, etc.) connected together to perform (a) specific function(s),
replaceable as an entity and normally capable of being disassembled.
Notes: 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.
``Asynchronous transfer mode.'' (ATM) (Cat 5)--A transfer mode in
which the information is organized into cells; it is asynchronous in
the sense that the recurrence of cells depends on the required or
instantaneous bit rate. (CCITT Recommendation L.113)
Australia Group. The members belonging to this group have agreed to
adopt controls on dual-use chemicals, i.e., weapons precursors,
equipment, and biological microorganisms and related equipment in order
to prevent the proliferation of chemical and biological weapons. Member
countries as of November 1, 1995 include: Argentina, Australia,
Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg,
the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovak
Republic, Spain, Sweden, Switzerland, the United Kingdom, and the
United States. See also Sec. 742.2 of the EAR.
``Automatic target tracking.'' (Cat 6)--A processing technique that
automatically determines and provides as output an extrapolated value
of the most probable position of the target in real time.
``Bandwidth of one voice channel.'' (Cat 5)--In the case of data
communication equipment designed to operate in one voice channel of
3,100 Hz, as defined in CCITT Recommendation G.151.
``Basic gate propagation delay time.'' (Cat 3)--The propagation
delay time value corresponding to the basic gate utilized within a
``family'' of ``monolithic integrated circuits''. This may be
specified, for a given ``family'', either as the propagation delay time
per typical gate or as the typical propagation delay time per gate.
Note: ``Basic gate propagation delay time'' is not to be
confused with input/output delay time of a complex ``monolithic
integrated circuit''.
``Basic Scientific Research.'' (GTN)--Experimental or theoretical
work undertaken principally to acquire new knowledge of the fundamental
principles of phenomena or observable facts, not primarily directed
towards a specific practical aim or objective.
``Beat length.'' (Cat 6)--The distance over which two orthogonally
polarized signals, initially in phase, must pass in order to achieve a
2 Pi radian(s) phase difference.
``Bias.'' (accelerometer) (Cat 7)--An accelerometer output when no
acceleration is applied.
Bill of Lading. The contract of carriage and receipt for items,
issued by the carrier. It includes an air waybill, but does not include
an inland bill of lading or a domestic air waybill covering movement to
port only.
CCL. See Commerce Control List.
CCL Group. The Commerce Control List (CCL) is divided into 10
categories. Each category is subdivided into five groups, designated by
letters A through E: (A) Equipment, assemblies, and components; (B)
Test, production, and inspection equipment; (C) Materials; (D)
Software; and (E) Technology. See Sec. 738.2(b) of the EAR.
``CE.''--See ``Computing Element.''
``CTP.''--See ``Composite theoretical performance.'' This term may
also appear without quotation marks.
``Camming.'' (axial displacement) (Cat 2)--Axial displacement in
one revolution of the main spindle measured in a plane perpendicular to
the spindle faceplate, at a point next to the circumference of the
spindle faceplate (Ref.: ISO 230 Part 1-1986, paragraph 5.63).
Canadian airline. Any citizen of Canada who is authorized by the
Canadian Government to engage in business as an airline. For purposes
of this definition, a Canadian citizen is:
(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.
``Capable of.'' (MTCR context)--See ``usable in''.
Category. The Commerce Control List is divided into 10 categories:
(0) Nuclear Materials, Facilities, and Equipment, and Miscellaneous;
(1) Materials, Chemicals, ``Microorganisms,'' and Toxins; (2) Materials
Processing; (3) Electronics; (4) Computers; (5) Telecommunications and
Information Security; (6) Lasers and Sensors; (7) Navigation and
Avionics; (8) Marine; and (9) Propulsion Systems, Space Vehicles, and
Transportation Equipment. See Sec. 738.2(a) of the EAR.
``Chemical laser.'' (Cat 6)--A ``laser'' in which the excited
species is produced by the output energy from a chemical reaction.
``Circulation.'' (controlled, anti-torque direction control
systems) (Cat 7)--Use air blown over aerodynamic surfaces to increase
or control the forces generated by the surfaces.
``Civil aircraft.'' (Cat 7 and 9)--Only those ``aircraft'' listed
by designation in published airworthiness certification lists by the
civil aviation authorities to fly commercial civil internal and
external routes or for legitimate civil, private or business use. (See
also ``aircraft'')
COCOM (Coordinating Committee on Multilateral Export Controls). A
multilateral organization that cooperated in restricting strategic
exports to controlled countries. COCOM was officially disbanded on
March 31, 1994. COCOM members included the NATO countries, except
Iceland, plus Japan and Australia.
Commerce Control List (CCL). A list of items under the export
control jurisdiction of the Bureau of Export Administration, U.S.
Department of Commerce. Note that certain additional items described in
part 732 of the EAR are also subject to the EAR. The CCL is found in
Supplement No. 1 to part 774 of the EAR.
``Commingled.'' (Cat 1)--Filament to filament blending of
thermoplastic fibers and reinforcement fibers in order to produce a
fiber reinforcement/matrix mix in total fiber form.
``Comminution.'' (Cat 1)--A process to reduce a material to
particles by crushing or grinding.
Commodity. Any article, material, or supply except technology and
software.
``Common channel signalling.'' (Cat 5)--A signalling method in
which a single channel between exchanges conveys, by means of labelled
messages, signalling information relating to a multiplicity of circuits
or calls and other information such as that used for network
management.
``Communications channel controller.'' (Cat 5)--The physical
interface that controls the flow of synchronous or asynchronous digital
information. It is an assembly that can be integrated into computer or
telecommunications equipment to provide communications access.
``Composite.'' (Cat 1, 6, 8, and 9)--A ``matrix'' and an additional
phase or additional phases consisting of particles, whiskers, fibers or
any
[[Page 12927]]
combination thereof, present for a specific purpose or purposes.
``Composite theoretical performance.'' (CTP) (Cat 4)--A measure of
computational performance given in millions of theoretical operations
per second (Mtops), calculated using the aggregation of ``computing
elements (CE)''. (See Category 4, Technical Note.) This term may also
appear without quotation marks. The formula to calculate the CTP is
contained in a technical note titled ``Information on How to Calculate
``Composite Theoretical Performance'' at the end of Category 4 of the
CCL.
``Compound rotary table.'' (Cat 2)--A table allowing the workpiece
to rotate and tilt about two non-parallel axis that can be coordinated
simultaneously for ``contouring control''.
``Computer using facility.'' (Cat 4)--The end-user's contiguous and
accessible facilities:
(a) Housing the ``computer operating area'' and those end-user
functions that are being supported by the stated application of the
electronic computer and its related equipment; and
(b) Not extending beyond 1,500 meters in any direction from the
center of the ``computer operating area''.
Note: ``Computer operating area'': the immediate contiguous and
accessible area around the electronic computer, where the normal
operating, support and service functions take place.
``Computing element.'' (CE) (Cat 4)--The smallest computational
unit that produces an arithmetic logic result.
``Contouring control.'' (Cat 2)--Two or more numerically controlled
motions operating in accordance with instructions that specify the next
required position and the required feed rates to that position. These
feed rates are varied in relation to each other so that a desired
contour is generated (Ref. ISO/DIS 2806--1980).
Controlled country. A list of countries designated controlled for
national security purposes found in Country Group D:1 (see Supplement
No. 1 to part 740 of the EAR). This list was established under
authority delegated to the Secretary of Commerce by Executive Order
12214 of May 2, 1980 pursuant to section 5(b) of the EAA, and
including: Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia,
the People's Republic of China, Estonia, Georgia, Kazakstan,
Kyrgyzstan, Laos, Latvia, Lithuania, Moldova, Mongolia, Romania,
Russia, Tajikstan, Turkmenistan, Ukraine, Uzbekistan, and Vietnam. Cuba
and North Korea are controlled countries, but they are listed in
Country Group E:2 (unilateral embargoes) rather than Country Group D:1.
This definition does not apply to part 768 of the EAR (Foreign
Availability), which provides a dedicated definition.
Controlled in fact. For purposes of the Special Comprehensive
License (part 752 of the EAR), controlled in fact is defined as it is
under the Restrictive Trade Practices or Boycotts (Sec. 760.1(c) of the
EAR).
Cooperating country. A country that cooperated with the former
COCOM member countries in restricting strategic exports in accordance
with COCOM standards. The ``Cooperating Countries'' are: Austria,
Finland, Hong Kong, Ireland, Korea (Republic of), New Zealand, Sweden,
and Switzerland.
Countries supporting international terrorism. In accordance with
section 6(j) of the Export Administration Act of 1979, as amended
(EAA), the Secretary of State has determined that the following
countries' governments have repeatedly provided support for acts of
international terrorism: Cuba, Iran, Iraq, Libya, North Korea, Sudan,
and Syria.
Country Chart. A chart, found in Supplement No. 1 to part 738 of
the EAR, that contains certain licensing requirements based on
destination and reason for control. In combination with the CCL, the
Country Chart indicates when a license is required for any item on the
CCL to any country in the world under General Prohibition One (Exports
and Reexports in the Form Received), General Prohibition Two (Parts and
Components Reexports), and General Prohibition Three (Foreign Produced
Direct Product Reexports). See part 736 of the EAR.
Country Groups. For export control purposes, foreign countries are
separated into five country groups designated by the symbols A, B, C,
D, and E. (See Supplement No. 1 to part 740 of the EAR for a list of
countries in each Country Group.)
``Critical temperature.'' (Cat 1, 3, and 6)--The ``critical
temperature'' (sometimes referred to as the transition temperature) of
a specific ``superconductive'' material is the temperature at which the
material loses all resistance to the flow of direct electrical current.
``Cryptanalysis.'' (Cat 5)--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)
``Cryptography.'' (Cat 5)--The discipline that embodies principles,
means and methods for the transformation of data in order to hide its
information content, prevent its undetected modification or prevent its
unauthorized use. ``Cryptography'' is limited to the transformation of
information using one or more ``secret parameters'' (e.g., crypto
variables) and/or associated key management.
Note: ``Secret parameter'': a constant or key kept from the
knowledge of others or shared only within a group.
Customs officer. The Customs officers in the U.S. Customs Service
and postmasters unless the context indicates otherwise.
``Data signalling rate.'' (Cat 5)--The rate, as defined in ITU
Recommendation 53-36, taking into account that, for non-binary
modulation, baud and bit per second are not equal. Bits for coding,
checking and synchronization functions are to be included.
Notes: 1. When determining the ``data signalling rate'',
servicing and administrative channels shall be excluded.
2. It is the maximum one-way rate, i.e., the maximum rate in
either transmission or reception.
(a) Mirrors:
(1) Mirrors having a single continuous optical reflecting
surface that is dynamically deformed by the application of
individual torques or forces to compensate for distortions in the
optical waveform incident upon the mirror; or
(2) Mirrors having 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.
(b) Deformable mirrors are also known as adaptive optic mirrors.
``Datagram.'' (Cat 4 and 5)--A self-contained, independent entity
of data carrying sufficient information to be routed from the source to
the destination data terminal equipment without reliance on earlier
exchanges between this source and destination data terminal equipment
and the transporting network.
Defense Trade Control (DTC). The office at the Department of State,
formerly known as the Office of Munitions Control, responsible for
reviewing applications to export and reexport items on the U.S.
Munitions List. (See 22 CFR parts 120 through 130.)
Denied Persons List. A list, referenced in Supplement No. 2 to part
764 of the EAR, of specific persons that have been denied export
privileges, in whole or in part. The full text of each order denying
export privileges is published in the Federal Register.
``Designed or modified.'' (MTCR context)--Equipment, parts,
components, or ``software'' that, as a result of ``development'', or
[[Page 12928]]
modification, have specified properties that make them fit for a
particular application. ``Designed or modified'' equipment, parts,
components or ``software'' can be used for other applications. For
example, a titanium coated pump designed for a ``missile'' may be used
with corrosive fluids other than propellants.
``Development.'' (General Technology Note)--``Development'' is
related to all stages prior to serial production, such as: design,
design research, design analyses, design concepts, assembly and testing
of prototypes, pilot production schemes, design data, process of
transforming design data into a product, configuration design,
integration design, layouts.
``Diffusion bonding.'' (Cat 1, 2, and 9)--A solid-state molecular
joining of at least two separate metals into a single piece with a
joint strength equivalent to that of the weakest material.
``Digital computer.'' (Cat 4 and 5)--Equipment that can, in the
form of one or more discrete variables:
(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.
Note: Modifications of a stored sequence of instructions include
replacement of fixed storage devices, but not a physical change in
wiring or interconnections.
``Digital transfer rate.'' (Cat 5)--The total bit rate of the
information that is directly transferred on any type of medium.
``Direct-acting hydraulic pressing.'' (Cat 2)--A deformation
process that uses a fluid-filled flexible bladder in direct contact
with the workpiece.
``Drift rate.'' (gyro) (Cat 7)--The time rate of output deviation
from the desired output. It consists of random and systematic
components and is expressed as an equivalent input angular displacement
per unit time with respect to inertial space.
Dual use. Items that have both commercial and military or
proliferation applications. While this term is used informally to
describe items that are subject to the EAR, purely commercial items are
also subject to the EAR (see Sec. 734.2(a) of the EAR).
``Dynamic adaptive routing.'' (Cat 5)--Automatic rerouting of
traffic based on sensing and analysis of current actual network
conditions.
Note: This does not include cases of routing decisions taken on
predefined information.
``Dynamic signal analyzers.'' (Cat 3)--``Signal analyzers'' that
use digital sampling and transformation techniques to form a Fourier
spectrum display of the given waveform including amplitude and phase
information.
Effective control. For purposes of the Special Comprehensive
License (SCL), effective control means the exercise of a right, under a
contractual agreement between the SCL Holder and the consignee, to
determine and control the export of items authorized under an SCL.
``Electronically steerable phased array antenna.'' (Cat 6)--An
antenna that forms a beam by means of phase coupling, i.e., the beam
direction is controlled by the complex excitation coefficients of the
radiating elements and the direction of that beam can be varied in
azimuth or in elevation, or both, by application, both in transmission
and reception, of an electrical signal.
``End-effectors.'' (Cat 2)--``End-effectors'' include grippers,
``active tooling units'' and any other tooling that is attached to the
baseplate on the end of a ``robot'' manipulator arm.
Note: ``Active tooling unit'': a device for applying motive
power, process energy or sensing to the workpiece.
``Equivalent Density.'' (Cat 6)--The mass of an optic per unit
optical area projected onto the optical surface.
``Expert systems.'' (Cat 4)--Systems providing results by
application of rules to data that are stored independently of the
``program'' and capable of any of the following:
(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).
Export. Export means an actual shipment or transmission of items
out of the United States. (See Sec. 734.2(b) of the EAR.)
Export Administration Act (EAA). Export Administration Act of 1979,
as amended, effective October 1, 1979.
Export Administration Regulations (EAR). Regulations set forth in
parts 730-774, inclusive, of Title 15 of the Code of Federal
Regulations.
Export Administration Review Board (EARB). EARB voting members are
the Secretary of Commerce, the Secretary of State, the Secretary of
Defense, the Secretary of Energy, and the Director of the Arms Control
and Disarmament Agency. The Chairman of the Joint Chiefs of Staff and
the Director of Central Intelligence are non-voting members. The
Secretary of Commerce is the Chair of the EARB. No alternate EARB
members may be designated, but the acting head or deputy head of any
agency or department may serve in lieu of the head of the concerned
agency or department. The EARB may invite the heads of other Government
agencies or departments (other than those identified in this
definition) to participate in the activities of the EARB when matters
of interest to such agencies or departments are under consideration.
Decisions are made by majority vote.
Export Control Classification Number (ECCN). The numbers used in
Supplement No. 1 to part 774 of the EAR and throughout the EAR. The
Export Control Classification Number consists of a set of digits and a
letter. Reference Sec. 738.2(c) of the EAR for a complete description
of each ECCN's composition.
Export control document. A license; application for license; any
and all documents submitted in accordance with the requirements of the
EAR in support of, or in relation to, a license application;
application for International Import Certificate; International Import
Certificate; Delivery Verification Certificate or similar evidence of
delivery; Shipper's Export Declaration (SED) presented in connection
with shipments to any country; a Dock Receipt or bill of lading issued
by any carrier in connection with any export subject to the EAR and any
and all documents prepared and submitted by exporters and agents
pursuant to the export clearance requirements of part 758 of the EAR; a
U.S. exporter's report of request received for information,
certification, or other action indicating a restrictive trade practice
or boycott imposed by a foreign country against a country friendly to
the United States, submitted to the U.S. Department of Commerce in
accordance with the provisions of part 760 of the EAR; Customs Form
7512, Transportation Entry and Manifest of Goods, Subject to Customs
Inspection and Permit, when used for Transportation and Exportation
(T.& E.) or Immediate Exportation (I.E.); and any other document issued
by a U.S. Government agency as evidence of the existence of a license
for the purpose of loading onto an exporting carrier or otherwise
facilitating or effecting an export from the United States or any
reexport of any item requiring a license.
Export of satellites. The term export, as applied to satellites
controlled by the Department of Commerce, includes the physical
movement of a satellite from the United States to another country for
[[Page 12929]]
any purpose, or the transfer of registration of a satellite or
operational control over a satellite from a person resident in the
United States to a person resident in another country. Under the
Commercial Space Launch Act, a launch of a launch vehicle and payload
is not an export for purposes of controlling export.
Exporter. See U.S. exporter.
Exporting carrier. Any instrumentality of water, land, or air
transportation by which an export is effected, including any domestic
air carrier on which any cargo for export is laden or carried.
``FMU.''--See ``flexible manufacturing unit''
``Family.'' (Cat 3)--Consists of microprocessor or microcomputer
microcircuits that have:
(a) The same architecture;
(b) The same basic instruction set; and
(c) The same basic technology (e.g., only NMOS or only CMOS).
``Fast select.'' (Cat 4 and 5)--A facility applicable to virtual
calls that allows data terminal equipment to expand the possibility to
transmit data in call set-up and clearing ``packets'' beyond the basic
capabilities of a virtual call.
Note: ``Packet'': a group of binary digits including data and
call control signals that is switched as a composite whole. The
data, call control signals, and possible error control information
are arranged in a specified format.
``Fault tolerance.'' (Cat 4)--The capability of a computer system,
after any malfunction of any of its hardware or ``software''
components, to continue to operate without human intervention, at a
given level of service that provides: continuity of operation, data
integrity, and recovery of service within a given time.
``Fibrous or filamentary materials.'' (Cat 1 and 8)--The term
``fibrous and filamentary materials'' includes:
(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.
``Film type integrated circuit.'' (Cat 3)--An array of ``circuit
elements'' and metallic interconnections formed by deposition of a
thick or thin film on an insulating ``substrate''.
Note: ``Circuit element'': a single active or passive functional
part of an electronic circuit, such as one diode, one transistor,
one resistor, one capacitor, etc.
Firm. A corporation, partnership, limited partnership, association,
company, trust, or any other kind of organization or body corporate,
situated, residing, or doing business in the United States or any
foreign country, including any government or agency thereof.
``Fixed.'' (Cat 5)--The coding or compression algorithm cannot
accept externally supplied parameters (e.g., cryptographic or key
variables) and cannot be modified by the user.
``Flexible manufacturing unit.'' (FMU), (sometimes also referred to
as `flexible manufacturing system' (FMS) or `flexible manufacturing
cell' (FMC)) (Cat 2)--An entity that includes a combination of at
least:
(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.
``Fluoride fibers.'' (Cat 6)--Fibers manufactured from bulk
fluoride compounds.
``Focal plane array.'' (Cat 6)--A linear or two-dimensional planar
layer, or combination of planar layers, of individual detector
elements, with or without readout electronics, that work in the focal
plane.
N.B. 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.
Foreign government agency. For the purposes of exemption from
support documentation (see Sec. 748.9 of the EAR), a foreign government
agency is defined as follows:
(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.
Foreign policy control. A control imposed under the EAR for any and
all of the following reasons: chemical and biological weapons, nuclear
nonproliferation, missile technology, regional stability, crime
control, anti-terrorism, United Nations sanctions, and any other reason
for control implemented under section 6 of the EAA or other similar
authority.
Forwarding agent. The person authorized by an exporter to perform
for that exporter services to facilitate the export of items. The
forwarding agent need not be a person regularly engaged in the freight
forwarding business. The forwarding agent must be designated by the
exporter in writing in the power-of-attorney set forth on the Shippers'
Export Declaration or in a general power-of-attorney, or other written
form, subscribed and sworn to by a duly authorized officer or employee
of the exporter.
``Frequency agility.'' (frequency hopping) (Cat 5)--A form of
``spread spectrum'' in which the transmission frequency of a single
communication channel is made to change by discrete steps.
``Frequency agility.'' (radar) (Cat 6)--(see ``Radar frequency
agility'')
``Frequency switching time.'' (Cat 3 and 5)--The maximum time
(i.e., delay), taken by a signal, when switched from one selected
output frequency to another selected output frequency, to reach:
(a) A frequency within 100 Hz of the final frequency; or
(b) An output level within 1 dB of the final output level.
``Frequency synthesizer.'' (Cat 3)--Any kind of frequency source or
signal generator, regardless of the actual technique used, providing a
multiplicity of simultaneous or alternative output frequencies, from
one or more outputs, controlled by, derived from or disciplined by a
lesser number of standard (or master) frequencies.
``Gas Atomization.'' (Cat 1)--A process to reduce a molten stream
of metal alloy to droplets of 500-micrometer diameter or less by a
high-pressure gas stream.
[[Page 12930]]
``Gateway.'' (Cat 5)--The function, realized by any combination of
equipment and ``software'', to carry out the conversion of conventions
for representing, processing or communicating information used on one
system into the corresponding, but different conventions used in
another system.
General prohibitions. The 10 prohibitions found in part 734 of the
EAR that prohibit certain exports, reexports, and other conduct,
subject to the EAR, absent a license, License Exception, or
determination that no license is required (``NLR'').
``Generic software.'' (Cat 5)--A set of instructions for a ``stored
program controlled'' switching system that is the same for all switches
using that type of switching system.
Note: The data base portion is not considered to be a part of
the generic ``software''.
``Geographically dispersed.'' (Cat 6)--Sensors are considered
geographically dispersed when each location is distant from any other
more than 1,500 m in any direction. Mobile sensors are always
considered geographically dispersed.
``Global interrupt latency time.'' (Cat 4)--The time taken by the
computer system to recognize an interrupt due to the event, service the
interrupt and perform a context switch to an alternate memory-resident
task waiting on the interrupt.
Hold Without Action (HWA). License applications may be held without
action only in the limited circumstances described in Sec. 750.4(c) of
the EAR.
``Hot isostatic densification.'' (Cat 2)--A process of pressurizing
a casting at temperatures exceeding 375 K (102 deg.C) in a closed
cavity through various media (gas, liquid, solid particles, etc.) to
create equal force in all directions to reduce or eliminate internal
voids in the casting.
``Hybrid computer.'' (Cat 4)--Equipment that can:
(a) Accept data;
(b) Process data, in both analog and digital representation; and
(c) Provide output of data.
``Hybrid integrated circuit.'' (Cat 3)--Any combination of
integrated circuit(s), or integrated circuit with ``circuit elements''
or ``discrete components'' connected together to perform (a) specific
function(s), and having all of the following criteria:
(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.
Notes: 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.
``ISDN.''--See ``Integrated Services Digital Network''.
``Image enhancement.'' (Cat 4)--The processing of externally
derived information-bearing images by algorithms such as time
compression, filtering, extraction, selection, correlation, convolution
or transformations between domains (e.g., fast Fourier transform or
Walsh transform). This does not include algorithms using only linear or
rotational transformation of a single image, such as translation,
feature extraction, registration or false coloration.
``Information security.'' (Cat 5)--All the means and functions
ensuring the accessibility, confidentiality or integrity of information
or communications, excluding the means and functions intended to
safeguard against malfunctions. This includes ``cryptography'',
``cryptanalysis'', protection against compromising emanations and
computer security.
N.B. ``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)
``Instantaneous bandwidth.'' (Cat 3)--The bandwidth over which
output power remains constant within 3 dB without adjustment of other
operating parameters.
``Instrumented range.'' (Cat 6)--The specified unambiguous display
range of a radar.
``Integrated Services Digital Network.'' (ISDN) (Cat 5)--A unified
end-to-end digital network, in which data originating from all types of
communication (e.g., voice, text, data, still and moving pictures) are
transmitted from one port (terminal) in the exchange (switch) over one
access line to and from the subscriber.
Intent to Deny (ITD) letter. A letter informing the applicant:
(a) Of the reason for BXA'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 BXA accepts, a
reason why the application should not be denied for the stated reason.
See Sec. 750.6 of the EAR.
``Interconnected radar sensors.'' (Cat 6)--Two or more radar
sensors are interconnected when they mutually exchange data in real
time.
Intermediate consignee. The intermediate consignee is the bank,
forwarding agent, or other intermediary (if any) who acts in a foreign
country as an agent for the exporter, the purchaser, or the ultimate
consignee, for the purpose of effecting delivery of the items to the
ultimate consignee.
``Intrinsic Magnetic Gradiometer.'' (Cat 6)--A single magnetic
field gradient sensing element and associated electronics the output of
which is a measure of magnetic field gradient. (See also ``Magnetic
Gradiometer'')
``Isostatic presses.'' (Cat 2)--Equipment capable of pressurizing a
closed cavity through various media (gas, liquid, solid particles,
etc.) to create equal pressure in all directions within the cavity upon
a workpiece or material.
Item. ``Item'' means ``commodities, software, and technology.''
When the EAR intend to refer specifically to commodities, software, or
technology, the text will use the specific reference.
Know. See ``knowledge.''
Knowledge. Knowledge of a circumstance (the term may be a variant,
such as ``know,'' ``reason to know,'' or ``reason to believe'')
includes not only positive knowledge that the circumstance exists or is
substantially certain to occur, but also an awareness of a high
probability of its existence or future occurrence. Such awareness is
inferred from evidence of the conscious disregard of facts known to a
person and is also inferred from a person's willful avoidance of facts.
This definition does not apply to part 760 of the EAR (Restrictive
Trade Practices or Boycotts).
``Laser.'' (Cat 2, 3, 5, 6, and 9)--An assembly of components that
produce both spatially and temporally coherent light that is amplified
by stimulated emission of radiation. See also: ``Chemical laser''; ``Q-
switched laser''; ``Super High Power Laser''; and ``Transfer laser''.
Law or regulation relating to export control. Any statute,
proclamation, executive order, regulation, rule, license, or order
applicable to any conduct involving an export transaction shall be
deemed to be a ``law or regulation relating to export control.''
Legible or legibility. Legible and legibility mean the quality of a
letter or numeral that enables the observer to identify it positively
and quickly to the exclusion of all other letters or numerals.
License. Authority issued by the Bureau of Export Administration
authorizing an export, reexport, or other regulated activity. The term
``license'' does not include authority represented by a ``License
Exception.''
[[Page 12931]]
License application; application for license. License application
and similar wording mean an application to BXA requesting the issuance
of a license to the applicant.
License Exception. An authorization described in part 740 of the
EAR that allows you to export or reexport, under stated conditions,
items subject to the EAR that otherwise would require a license. Unless
otherwise indicated, these License Exceptions are not applicable to
exports under the licensing jurisdiction of agencies other than the
Department of Commerce.
Licensee. The person to whom a license has been issued by BXA. See
Sec. 750.7(c) of the EAR for a complete definition and identification
of a licensee's responsibilities.
``Linearity.'' (Cat 2)--``Linearity'' (usually measured in terms of
non-linearity) is the maximum deviation of the actual characteristic
(average of upscale and downscale readings), positive or negative, from
a straight line so positioned as to equalize and minimize the maximum
deviations.
``Local area network.'' (Cat 4)--A data communication system that:
(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).
Note: ``Data device'': equipment capable of transmitting or
receiving sequences of digital information.
``MBTR''.--See ``maximum bit transfer rate''.
MTCR. See Missile Technology Control Regime.
MTEC. See Missile Technology Export Control Group.
``Magnetic Gradiometers.'' (Cat 6)--Are designed to detect the
spatial variation of magnetic fields from sources external to the
instrument. They consist of multiple ``magnetometers'' and associated
electronics the output of which is a measure of magnetic field
gradient. (See also ``Intrinsic Magnetic Gradiometer''.)
``Magnetometers.'' (Cat 6)--Are designed to detect magnetic fields
from sources external to the instrument. They consist of a single
magnetic field sensing element and associated electronics the output of
which is a measure of the magnetic field.
``Main storage.'' (Cat 4)--The primary storage for data or
instructions for rapid access by a central processing unit. It consists
of the internal storage of a ``digital computer'' and any hierarchical
extension thereto, such as cache storage or non-sequentially accessed
extended storage.
``Matrix.'' (Cat 1, 2, 8, and 9)--A substantially continuous phase
that fills the space between particles, whiskers or fibers.
``Maximum bit transfer rate.'' (MBTR) (Cat 4)--Of solid state
storage equipment: the number of data bits per second transferred
between the equipment and its controller. Of a disk drive: the internal
data transfer rate calculated as follows:
``MBTR'' (bits per second)=B x R x T, where:
B=Maximum number of data bits per track available to read or write
in a single revolution;
R=Revolutions per second;
T=Number of tracks that can be used or written simultaneously.
``Measurement uncertainty.'' (Cat 2)--The characteristic parameter
that specifies in what range around the output value the correct value
of the measurable variable lies with a confidence level of 95%. It
includes the uncorrected systematic deviations, the uncorrected
backlash, and the random deviations (Ref.: VDI/VDE 2617).
``Mechanical alloying.'' (Cat 1)--An alloying process resulting
from the bonding, fracturing and rebonding of elemental and master
alloy powders by mechanical impact. Non-metallic particles may be
incorporated in the alloy by addition of the appropriate powders.
``Media access unit.'' (Cat 5)--Equipment that contains one or more
communication interfaces (``network access controller'',
``communications channel controller'', modem or computer bus) to
connect terminal equipment to a network.
``Melt Extraction.'' (Cat 1)--A process to ``solidify rapidly'' and
extract a ribbon-like alloy product by the insertion of a short segment
of a rotating chilled block into a bath of a molten metal alloy.
Note: ``Solidify rapidly'': solidification of molten material at
cooling rates exceeding 1,000 K/sec.
``Melt Spinning.'' (Cat 1)--A process to ``solidify rapidly'' a
molten metal stream impinging upon a rotating chilled block, forming a
flake, ribbon or rod-like product.
Note: ``Solidify rapidly'': solidification of molten material at
cooling rates exceeding 1,000 K/sec.
``Microprocessor microcircuit.'' (Cat 3)--A ``monolithic integrated
circuit'' or ``multichip integrated circuit'' containing an arithmetic
logic unit (ALU) capable of executing a series of general purpose
instructions from an external storage.
N.B. 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''.
``Microprogram.'' (Cat 4 and 5)--A sequence of elementary
instructions, maintained in a special storage, the execution of which
is initiated by the introduction of its reference instruction into an
instruction register.
Missile Technology Control Regime (MTCR). The United States and
other nations in this multilateral control regime have agreed to
guidelines for restricting the export and reexport of dual-use items
that may contribute to the development of missiles. The MTCR Annex
lists missile-related equipment and technology controlled either by the
Department of Commerce or by the Department of State's Office of
Defense Trade Controls (22 CFR parts 120 through 130).
Missile Technology Export Control Group (MTEC). Chaired by the
Department of State, the MTEC primarily reviews applications involving
items controlled for Missile Technology (MT) reasons. The MTEC also
reviews applications involving items not controlled for MT reasons, but
destined for a country and/or end-use/end-user of concern.
``Missiles.'' (All)--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
payload to a range of at least 300 kilometers.
``Monolithic integrated circuit.'' (Cat 3)--A combination of
passive or active ``circuit elements'' or both that:
(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.
Note: ``Circuit element'': a single active or passive functional
part of an electronic circuit, such as one diode, one transistor,
one resistor, one capacitor, etc.
``Most immediate storage.'' (Cat 4)--The portion of the ``main
storage'' most directly accessible by the central processing unit:
[[Page 12932]]
(a) For single level ``main storage'', the internal storage; or
(b) For hierarchical ``main storage'':
(1) The cache storage;
(2) The instruction stack; or
(3) The data stack.
``Motion control board.'' (Cat 2)--An electronic ``assembly''
specially designed to provide a computer system with the capability to
coordinate simultaneously the motion of axes of machine tools for
``contouring control''.
``Multichip integrated circuit.'' (Cat 3)--Two or more ``monolithic
integrated circuits'' bonded to a common ``substrate''.
``Multi-data-stream processing.'' (Cat 4)--The ``microprogram'' or
equipment architecture technique that permits simultaneous processing
of two or more data sequences under the control of one or more
instruction sequences by means such as:
(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.
``Multilevel security.'' (Cat 5)--A class of system containing
information with different sensitivities that simultaneously permits
access by users with different security clearances and need-to-know,
but prevents users from obtaining access to information for which they
lack authorization.
Note: ``Multilevel security'' is computer security and not
computer reliability that deals with equipment fault prevention or
human error prevention in general.
``Multispectral Imaging Sensors.'' (Cat 6)--Are capable of
simultaneous or serial acquisition of imaging data from two or more
discrete spectral bands. Sensors having more than twenty discrete
spectral bands are sometimes referred to as hyperspectral imaging
sensors.
``N.E.S.'' N.E.S or n.e.s. is an abbreviation meaning ``not
elsewhere specified''.
NLR. NLR (``no license required'') is a symbol entered on the
Shipper's Export Declaration, certifying that no license is required.
NSG. See Nuclear Suppliers Group.
NATO (North Atlantic Treaty Organization). A strategic defensive
organization that consists of the following member nations: Belgium,
Canada, Denmark, France, Germany, Greece, Iceland, Italy, Luxembourg,
the Netherlands, Norway, Portugal, Spain, Turkey, the United Kingdom,
and the United States.
Net value. The actual selling price, less shipping charges or
current market price, whichever is the larger, to the same type of
purchaser in the United States.
``Network access controller.'' (Cat 4 and 5)--A physical interface
to a distributed switching network. It uses a common medium that
operates throughout at the same ``digital transfer rate'' using
arbitration (e.g., token or carrier sense) for transmission.
Independently from any other, it selects data packets or data groups
(e.g., IEEE 802) addressed to it. It is an assembly that can be
integrated into computer or telecommunications equipment to provide
communications access.
``Neural computer.'' (Cat 4)--A computational device designed or
modified to mimic the behavior of a neuron or a collection of neurons
(i.e., a computational device that is distinguished by its hardware
capability to modulate the weights and numbers of the interconnections
of a multiplicity of computational components based on previous data).
``Noise level.'' (Cat 6)--An electrical signal given in terms of
power spectral density. The relation between ``noise level'' expressed
in peak-to-peak is given by S\2\pp=8No(f2-f\1\), where
Spp is the peak-to-peak value of the signal (e.g., nanoteslas),
No is the power spectral density (e.g., (nanotesla)\2\/Hz) and
(f2-f1) defines the bandwidth of interest.
Nuclear Suppliers Group (NSG). The United States and other nations
in this multilateral control regime have agreed to guidelines for
restricting the export or reexport of items with nuclear applications.
As of February 1, 1996, members include: Argentina, Australia, Austria,
Belgium, Bulgaria, Canada, Czech Republic, Denmark, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Japan, Luxembourg, the
Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea,
Romania, Russia, Slovak Republic, Spain, South Africa, Sweden,
Switzerland, the United Kingdom, and the United States. See also
Sec. 742.3 of the EAR.
``Numerical control.'' (Cat 2)--The automatic control of a process
performed by a device that makes use of numeric data usually introduced
as the operation is in progress (Ref. ISO 2382).
``Object code.'' (or object language) (Cat 4)--An equipment
executable form of a convenient expression of one or more processes
(``source code'' (or source language)) that has been converted by a
programming system. (See also ``source code'')
Office of Foreign Assets Control (FAC) or (OFAC). The office at the
Department of the Treasury responsible for blocking assets of foreign
countries subject to economic sanctions, controlling participation by
U.S. persons, including foreign subsidiaries, in transactions with
specific countries or nationals of such countries, and administering
embargoes on certain countries or areas of countries. (See 31 CFR parts
500 through 590.)
``Operate autonomously.'' (Cat 8)--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.
Operating Committee (OC). The OC voting members include
representatives of appropriate agencies in the Departments of Commerce,
State, Defense, and Energy and the Arms Control and Disarmament Agency.
The appropriate representatives of the Joint Chiefs of Staff and the
Director of the Nonproliferation Center of the Central Intelligence
Agency are non-voting members. The Department of Commerce
representative, appointed by the Secretary, is the Chair of the OC and
serves as the Executive Secretary of the Advisory Committee on Export
Policy. The OC may invite representatives of other Government agencies
or departments (other than those identified above) to participate in
the activities of the OC when matters of interest to such agencies or
departments are under consideration.
``Optical amplification.'' (Cat 5)--In optical communications, an
amplification technique that introduces a gain of optical signals that
have been generated by a separate optical source, without conversion to
electrical signals, i.e., using semiconductor optical amplifiers,
optical fiber luminescent amplifiers.
``Optical computer.'' (Cat 4)--A computer designed or modified to
use light to represent data and whose computational logic elements are
based on directly coupled optical devices.
``Optical fiber preforms.'' (Cat 5 and 6)--Bars, ingots, or rods of
glass, plastic or other materials that have been specially processed
for use in fabricating optical fibers. The characteristics of the
preform determine the basic parameters of the resultant drawn optical
fibers.
[[Page 12933]]
``Optical integrated circuit.'' (Cat 3)--A ``monolithic integrated
circuit'' or a ``hybrid integrated circuit'', containing one or more
parts designed to function as photosensor or photoemitter or to perform
(an) optical or (an) electro-optical function(s).
``Optical switching.'' (Cat 5)--The routing of or switching of
signals in optical form without conversion to electrical signals.
``Overall current density.'' (Cat 3)--The total number of ampere-
turns in the coil (i.e., the sum of the number of turns multiplied by
the maximum current carried by each turn) divided by the total cross-
section of the coil (comprising the superconducting filaments, the
metallic matrix in which the superconducting filaments are embedded,
the encapsulating material, any cooling channels, etc.).
``PABX.'' (Cat 5)--(See ``Private automatic branch exchange''.)
``Part program.'' (Cat. 2)--An ordered set of instructions that is
in a language and in a format required to cause operations to be
effected under automatic control and that is either written in the form
of a machine program on an input medium or prepared as input data for
processing in a computer to obtain a machine program (Ref. ISO 2806-
1980).
``Peak power.'' (Cat 6)--Energy per pulse in Joule divided by the
pulse duration in seconds.
Person. A natural person, including a citizen or national of the
United States or of any foreign country; any firm; any government,
government agency, government department, or government commission; any
labor union; any fraternal or social organization; and any other
association or organization whether or not organized for profit. This
definition does not apply to part 760 of the EAR (Restrictive Trade
Practices or Boycotts).
``Personalized smart card.'' (Cat 5)--A smart card containing a
microcircuit, in accordance with ISO/IEC 7816, that has been programmed
by the issuer and cannot be changed by the user.
Port of export. The port where the cargo to be shipped abroad is
laden aboard the exporting carrier. It includes, in the case of an
export by mail, the place of mailing.
``Positioning accuracy.'' (Cat. 2)--The positioning accuracy of
``numerically controlled'' machine tools is to be determined and
presented in accordance with ISO/DIS 230/2, paragraph 2.13, in
conjunction with the following requirements:
(a) Test conditions:
(1) For 12 hours before and during measurements, the machine tool
and accuracy measuring equipment will be kept at the same ambient
temperature. During the pre-measurement time the slides of the machine
will be continuously cycled in the same manner that the accuracy
measurements will be taken;
(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;
Note: 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).
``Power management.'' (Cat 7)--Changing the transmitted power of
the altimeter signal so that received power at the ``aircraft''
altitude is always at the minimum necessary to determine the altitude.
``Principal element.'' (Cat 4)--An element is a ``principal
element'' when its replacement value is more than 35% of the total
value of the system of which it is an element. Element value is the
price paid for the element by the manufacturer of the system, or by the
system integrator. Total value is the normal international selling
price to unrelated parties at the point of manufacture or consolidation
of shipment.
``Private automatic branch exchange.'' (PABX) (Cat 5)--An automatic
telephone exchange, typically incorporating a position for an
attendant, designed to provide access to the public network and serving
extensions in an institution such as a business, government, public
service or similar organization.
``Production.'' (General Technology Note)--Means all production
stages, such as: product engineering, manufacture, integration,
assembly (mounting), inspection, testing, quality assurance.
Production facility. As defined by 10 CFR 110.2 of the Nuclear
Regulatory Commission Regulations, production facility means any
nuclear reactor or plant specially designed or used to produce special
nuclear material through the irradiation of source material or special
nuclear material, the separation of isotopes or the chemical
reprocessing or irradiated source or special nuclear material.
``Program.'' (Cat 2, 4, and 5)--A sequence of instructions to carry
out a process in, or convertible into, a form executable by an
electronic computer.
``Proof test.'' (Cat 5)--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 deg. C) and relative humidity 40%.
Note: Equivalent national standards for executing the ``proof
test'' may be used.
Publicly available information. Information that is generally
accessible to the interested public in any form and, therefore, not
subject to the EAR (See part 732 of the EAR).
Publicly available technology and software. Technology and software
that are already published or will be published; arise during, or
result from fundamental research; are educational; or are included in
certain patent applications (see Sec. 734.3(b)(3) of the EAR).
``Pulse compression.'' (Cat 6)--The coding and processing of a
radar signal pulse of long time duration to one of short time duration,
while maintaining the benefits of high pulse energy.
``Pulse duration.'' (Cat 6)--Duration of a ``laser'' pulse measured
at Full Width Half Intensity (FWHI) levels.
Purchaser. The person abroad who has entered into a transaction
with the applicant to purchase an item for delivery to the ultimate
consignee. A bank, freight forwarder, forwarding agent, or other
intermediary is not a purchaser.
``Q-switched laser.'' (Cat 6)--A ``laser'' in which the energy is
stored in the population inversion or in the optical resonator and
subsequently emitted in a pulse.
RWA. See Return Without Action.
[[Page 12934]]
``Radar frequency agility.'' (Cat 6)--Any technique that changes,
in a pseudo-random sequence, the carrier frequency of a pulsed radar
transmitter between pulses or between groups of pulses by an amount
equal to or larger than the pulse bandwidth.
``Radar spread spectrum.'' (Cat 6)--Any modulation technique for
spreading energy originating from a signal with a relatively narrow
frequency band, over a much wider band of frequencies, by using random
or pseudo-random coding.
``Range.'' (Cat 8)--Half the maximum distance a submersible vehicle
can cover.
Readable or readability. Readable and readability mean the quality
of a group of letters or numerals being recognized as complete words or
numbers.
``Real-time bandwidth.'' (Cat 3)--For ``dynamic signal analyzers'',
the widest frequency range that the analyzer can output to display or
mass storage without causing any discontinuity in the analysis of the
input data. For analyzers with more than one channel, the channel
configuration yielding the widest ``real-time bandwidth'' shall be used
to make the calculation.
``Real-time Processing.'' (Cat 2 and 4)--The processing of data by
a computer system providing a required level of service, as a function
of available resources, within a guaranteed response time, regardless
of the load of the system, when stimulated by an external event.
Reasons for Control. Reasons for Control are: Anti-Terrorism (AT),
Chemical & Biological Weapons (CB), Crime Control (CC), High
Performance Computer (XP), Missile Technology (MT), National Security
(NS), Nuclear Nonproliferation (NP), Regional Stability (RS), Short
Supply (SS), and United Nations sanctions (UN). Items controlled within
a particular ECCN may be controlled for more than one reason.
Reexport. ``Reexport'' means an actual shipment or transmission of
items subject to the EAR from one foreign country to another foreign
country. 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. (See Sec. 734.2(b)of the EAR.) In addition, for
purposes of satellites controlled by the Department of Commerce, the
term ``reexport'' also includes the transfer of registration of a
satellite or operational control over a satellite from a party resident
in one country to a party resident in another country.
Replacement license. An authorization by the Bureau of Export
Administration revising the information, conditions, or riders stated
on a license issued by BXA. See Sec. 750.7 of the EAR.
``Required.''-- As applied to ``software'', refers to only that
portion of ``software'' that is peculiarly responsible for achieving or
exceeding the control performance levels, characteristics or function.
Such ``required'' ``software'' may be shared by different products.
``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 (see the General Technology
Note).
``Resolution.'' (Cat 2)--The least increment of a measuring device;
on digital instruments, the least significant bit (Ref.: ANSI B-
89.1.12).
Return Without Action (RWA). An application may be RWA'd for one of
the following reasons:
(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.
``Robot.'' (Cat 2 and 8)--A manipulation mechanism, which may be of
the continuous path or of the point-to-point variety, may use
``sensors'', and has all the following characteristics:
(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 electronic computer that may be a
programmable logic controller, i.e., without mechanical intervention.
Note: This definition does not include the following devices:
(a) Manipulation mechanisms that are only manually/teleoperator
controllable;
(b) Mixed 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.
``Rotary Atomization.'' (Cat 1)--A process to reduce a stream or
pool of molten metal to droplets to a diameter of 500 micrometer or
less by centrifugal force.
``Run-out.'' (out-of-true running) (Cat 2)--Radial displacement in
one revolution of the main spindle measured in a plane perpendicular to
the spindle axis at a point on the external or internal revolving
surface to be tested (Ref.: ISO 230 Part 1-1986, paragraph 5.61).
``SDH.''--See ``synchronous digital hierarchy'' Sensors (Cat. 6)--
Detectors of a physical phenomenon, the output of which (after
conversion into a signal that can be interpreted by a controller) is
able to generate ``programs'' or modify programmed instructions or
numerical program data. This includes ``sensors'' with machine vision,
infrared imaging, acoustical imaging, tactile feel, inertial position
measuring, optical or acoustic ranging or force or torque measuring
capabilities.
SNEC. See Subgroup on Nuclear Export Coordination.
``SONET.''--See ``synchronous optical network''.
``Scale factor.'' (gyro or accelerometer) (Cat 7)--The ratio of
change in output to a change in the input intended to be measured.
Scale factor is generally evaluated as the slope of the straight line
that can be fitted by the method of least squares to input-output data
obtained by varying the input cyclically over the input range.
Schedule B numbers. The commodity numbers appearing in the current
[[Page 12935]]
edition of the Bureau of the Census publication, Schedule B Statistical
Classification of Domestic and Foreign Commodities Exported from the
United States. (See part 758 of the EAR for information on use of
Schedule B numbers.)
``Settling time.'' (Cat 3)--The time required for the output to
come within one-half bit of the final value when switching between any
two levels of the converter.
Shield. Chaired by the Department of State, the Shield primarily
reviews applications involving items controlled for Chemical and
Biological Weapons (CBW) reasons. The Shield also reviews applications
involving items not controlled for CBW reasons, but destined for a
country and/or end-use/end-user of concern. See Sec. 750.4 of the EAR.
``Signal analyzers.'' (Cat 3)--Apparatus capable of measuring and
displaying basic properties of the single-frequency components of
multi-frequency signals.
``Signal analyzers.'' (dynamic) (Cat 3)--(See ``Dynamic signal
analyzers''.)
``Signal processing.'' (Cat 3, 4 and 5)--The processing of
externally derived information-bearing signals by algorithms such as
time compression, filtering, extraction, selection, correlation,
convolution or transformations between domains (e.g., fast Fourier
transform or Walsh transform).
``Simple educational devices.'' (Cat 3)--Devices designed for use
in teaching basic scientific principles and demonstrating the operation
of those principles in educational institutions.
Single shipment. All items moving at the same time from one
exporter to one consignee or intermediate consignee on the same
exporting carrier, even if these items will be forwarded to one or more
ultimate consignees. Items being transported in this manner shall be
treated as a single shipment even if the items represent more than one
order or are in separate containers.
``Software.'' (Cat: all)--A collection of one or more ``programs''
or ``microprograms'' fixed in any tangible medium of expression.
``Source code.'' (or source language) (Cat 4)--A convenient
expression of one or more processes that may be turned by a programming
system into equipment executable form (``object code'' (or object
language)).
``Spacecraft.'' (Cat 7 and 9)--Active and passive satellites and
space probes.
``Space qualified.'' (Cat 3 and 6)--Products designed, manufactured
and tested to meet the special electrical, mechanical or environmental
requirements for use in the launch and deployment of satellites or
high-altitude flight systems operating at altitudes of 100 km or
higher.
Specially Designated National (SDN). Any person who is determined
by the Secretary of the Treasury to be a specially designated national
for any reason under regulations issued by the Office of Foreign Assets
Control (see 31 CFR parts 500 through 590).
Specially Designated Terrorist (STN). Any person who is determined
by the Secretary of the Treasury to be a specially designated terrorist
under notices or regulations issued by the Office of Foreign Assets
Control (see 31 CFR chapter V).
``Specially designed.'' (MTCR context)--Equipment, parts,
components or ``software'' that, as a result of ``development'', have
unique properties that distinguish them for certain predetermined
purposes. For example, a piece of equipment that is ``specially
designed'' for use in a ``missile'' will only be considered so if it
has no other function or use. Similarly, a piece of manufacturing
equipment that is ``specially designed'' to produce a certain type of
component will only be considered such if it is not capable of
producing other types of components.
``Specific modulus.'' (Cat 1)--Young's modulus in pascals,
equivalent to N/m\2\ divided by specific weight in N/m\3\, measured at
a temperature of (296 2) K ((23 2) deg. C)
and a relative humidity of (50 5)%.
``Specific tensile strength.'' (Cat 1)--Ultimate tensile strength
in pascals, equivalent to N/m\2\ divided by specific weight in N/m\3\,
measured at a temperature of (296 2) K ((23
2) deg. C) and relative humidity of (50 5)%.
``Spectral efficiency.'' (Cat 5)--A figure of merit parametrized to
characterize the efficiency of transmission system that uses complex
modulation schemes such as QAM (quadrature amplitude modulation),
Trellis coding, QSPK (Q-phased shift key), etc. It is defined as
follows:
[GRAPHIC] [TIFF OMITTED] TR25MR96.013
``Splat Quenching.'' (Cat 1)--A process to ``solidify rapidly'' a
molten metal stream impinging upon a chilled block, forming a flake-
like product.
Note: ``Solidify rapidly'': solidification of molten material at
cooling rates exceeding 1,000 K/sec.
``Spread spectrum.'' (Cat 5)--The technique whereby energy in a
relatively narrow-band communication channel is spread over a much
wider energy spectrum.
``Spread spectrum radar.'' (Cat 6)--(see ``Radar spread spectrum'')
``Sputtering.'' (Cat 4)--An overlay coating process wherein
positively charged 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 the substrate.
Note: Triode, magnetron or radio frequency sputtering to
increase adhesion of coating and rate of deposition are ordinary
modifications of the process.
``Stability.'' (Cat 7)--Standard deviation (1 sigma) of the
variation of a particular parameter from its calibrated value measured
under stable temperature conditions. This can be expressed as a
function of time.
``Stored program controlled.'' (Cat 2, 3, and 5)--A control using
instructions stored in an electronic storage that a processor can
execute in order to direct the performance of predetermined functions.
Note: Equipment may be ``stored program controlled'' whether the
electronic storage is internal or external to the equipment.
Subgroup on Nuclear Export Coordination (SNEC). Chaired by the
Department of State, the SNEC primarily reviews applications involving
items controlled for nuclear nonproliferation (NP) reasons. The SNEC
also reviews applications involving items not controlled for NP
reasons, but destined for a country and/or end-use/end-user of NP
concern.
Subject to the EAR. A term used in the EAR to describe those
commodities, Software, technology, and activities over which the Bureau
of Export Administration (BXA) exercises regulatory jurisdiction under
the EAR (See Sec. 734.2(a) of the EAR).
[[Page 12936]]
``Substrate.'' (Cat 3)--A sheet of base material with or without an
interconnection pattern and on which or within which ``discrete
components'' or integrated circuits or both can be located.
Note: ``Discrete component'': a separately packaged ``circuit
element'' with its own external connections.
``Substrate blanks.'' (Cat 6)--Monolithic compounds with dimensions
suitable for the production of optical elements such as mirrors or
optical windows.
``Superalloys.'' (Cat 2 and 9)--Nickel-, cobalt-, or iron-base
alloys having strengths superior to any alloys in the AISI 300 series
at temperatures over 922 K (694 degrees C) under severe environmental
and operating conditions.
``Superconductive.'' (Cat 1, 3, 6, and 8)--Materials, i.e., metals,
alloys, or compounds that can lose all electrical resistance, i.e.,
that can attain infinite electrical conductivity and carry very large
electrical currents without Joule heating.
Note: 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.
``Super High Power Laser.'' (SHPL) (Cat 6)--A ``laser'' capable of
delivering (the total or any portion of) the output energy exceeding 1
kJ within 50 ms or having an average or CW power exceeding 20 kW.
``Superplastic forming.'' (Cat 1 and 2)--A deformation process
using heat for metals that are normally characterized by low of
elongation (less than 20%) at the breaking point as determined at room
temperature by conventional tensile strength testing, in order to
achieve elongations during processing that are at least 2 times those
values.
``Swept frequency network analyzers.'' (Cat 3)--Involve the
automatic measurement of equivalent circuit parameters over a range of
frequencies, involving swept frequency measurement techniques, but not
continuous wave point-to-point measurements.
``Switch fabric.'' (Cat 5)--That hardware and associated
``software'' that provides the physical or virtual connection path for
in-transit message traffic being switched.
``Synchronous digital hierarchy.'' (SDH) (Cat 5)--A digital
hierarchy providing a means to manage, multiplex, and access various
forms of digital traffic using a synchronous transmission format on
different types of media. The format is based on the Synchronous
Transport Module (STM) that is defined by CCITT Recommendation G.703,
G.707, G.708, G.709 and others yet to be published. The first level
rate of ``SDH'' is 155.52 Mbits/s.
``Synchronous optical network.'' (SONET) (Cat 5)--A network
providing a means to manage, multiplex and access various forms of
digital traffic using a synchronous transmission format on fiber
optics. The format is the North America version of ``SDH'' and also
uses the Synchronous Transport Module (STM). However, it uses the
Synchronous Transport Signal (STS) as the basic transport module with a
first level rate of 51.81 Mbits/s. The SONET standards are being
integrated into those of ``SDH''.
``Systems tracks.'' (Cat 6)--Processed, correlated (fusion of radar
target data to flight plan position) and updated aircraft flight
position report available to the Air Traffic Control center
controllers.
``Systolic array computer.'' (Cat 4)--A computer where the flow and
modification of the data is dynamically controllable at the logic gate
level by the user.
``Technology.'' (General Technology Note)--Specific information
necessary for the ``development'', ``production'', or ``use'' of a
product. The information takes the form of ``technical data'' or
``technical assistance''. Controlled ``technology'' is defined in the
General Technology Note and in the Commerce Control List (Supplement
No. 1 to part 774 of the EAR).
N.B.: Technical assistance--May take forms such as instruction,
skills training, working knowledge, consulting services.
Note: ``Technical assistance'' may involve transfer of
``technical data''.
``Technical data.''--May take forms such as blueprints, plans,
diagrams, models, formulae, tables, engineering designs and
specifications, manuals and instructions written or recorded on other
media or devices such as disk, tape, read-only memories.
``Telecommunication transmission equipment.'' (Cat 5)--
(a) Categorized as follows, or combinations thereof:
(1) Radio equipment (e.g., transmitters, receivers and
transceivers);
(2) Line terminating equipment;
(3) Intermediate amplifier equipment;
(4) Repeater equipment;
(5) Regenerator equipment;
(6) Translation encoders (transcoders);
(7) Multiplex equipment (statistical multiplex 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; and
(b) Designed for use in single or multi-channel communication via:
(1) Wire (line);
(2) Coaxial cable;
(3) Optical fiber cable;
(4) Electromagnetic radiation.
``Terminal interface equipment.'' (Cat 4)--Equipment at which
information enters or leaves the telecommunication systems, e.g.,
telephone, data device, computer, facsimile device.
``Three dimensional Vector Rate.'' (Cat 4)--The number of vectors
generated per second that have 10 pixel poly line vectors, clip tested,
randomly oriented, with either integer or floating point X-Y-Z
coordinate values (whichever produces the maximum rate).
``Tilting spindle.'' (Cat 2)--A tool-handling spindle that alters,
during the machining process, the angular position of its center line
with respect to any other axis.
``Time constant.'' (Cat 6)--The time taken from the application of
a light stimulus for the current increment to reach a value of 1-1/e
times the final value (i.e., 63% of the final value).
``Total digital transfer rate.'' (Cat 5)--The number of bits,
including line coding, overhead and so forth per unit time passing
between corresponding equipment in a digital transmission system. (See
also ``digital transfer rate''.)
Transfer. A transfer to any person of items subject to the EAR
either within the United States or outside of the United States with
the knowledge or intent that the items will be shipped, transferred, or
transmitted to an unauthorized recipient.
``Transfer laser.'' (Cat 6)--A ``laser'' in which the lasting
species is excited through the transfer of energy by collision of a
non-lasing atom or molecule with a lasing atom or molecule species.
``Tunable.'' (Cat 6)--The ability of a ``laser'' to produce a
continuous output at all wavelengths over a range of several ``laser''
transitions. A line selectable ``laser'' produces discrete wavelengths
within one ``laser'' transition and is not considered ``tunable''.
``Two dimensional Vector Rate.'' (Cat 4)--The number vectors
generated per second that have 10 pixel poly line vectors, clip tested,
randomly oriented, with either integer or floating point X-Y coordinate
values (whichever produces the maximum rate).
[[Page 12937]]
U.S. exporter. That person who, as the principal party in interest
in the export transaction, has the power and responsibility for
determining and controlling the sending of the items out of the United
States. (See also ``applicant''.)
U.S. person. (a) For purposes of Sec. 744.6 of the EAR, the term
U.S. person includes:
(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) See also parts 746 and 760 of the EAR for definitions of ``U.S.
person'' that are specific to those parts.
Ultimate consignee. The person located abroad who is the true party
in interest in actually receiving the export or reexport for the
designated end-use. (See Sec. 748.4(b)(5) of the EAR.)
United States. Unless otherwise stated, the 50 States, including
offshore areas within their jurisdiction pursuant to section 3 of the
Submerged Lands Act (43 U.S.C. 1311), the District of Columbia, Puerto
Rico, and all territories, dependencies, and possessions of the United
States, including foreign trade zones established pursuant to 19 U.S.C.
81A-81U, and also including the outer continental shelf, as defined in
section 2(a) of the Outer Continental Shelf Lands Act (43 U.S.C.
1331(a)).
United States airline. Any citizen of the United States who is
authorized by the U.S. Government to engage in business as an airline.
For purposes of this definition, a U.S. citizen is:
(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.
``Usable in or Capable of.'' (MTCR context)--Equipment, parts,
components or ``software'' that are suitable for a particular purpose.
There is no need for the equipment, parts, components or ``software''
to have been configured, modified or specified for the particular
purpose. For example, any military specification memory circuit would
be ``capable of'' operation in a guidance system.
``Use.'' (General Technology Note)--Operation, installation
(including on-site installation), maintenance (checking), repair,
overhaul and refurbishing.
``User-accessible programmability.'' (Cat 4, 5, and 6)--The
facility allowing a user to insert, modify, or replace ``programs'' by
means other than:
(a) A physical change in wiring or interconnections; or
(b) The setting of function controls including entry of parameters.
Utilization facility. (a) As defined by 10 CFR 110.2 of the Nuclear
Regulatory Commission Regulations, utilization facility means a nuclear
reactor, other than one that is a production facility, any of the
following major components of a nuclear reactor: Pressure vessels
designed to contain the core of a nuclear reactor, other than one that
is a production facility, and the following major components of a
nuclear reactor:
(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.
``Vacuum Atomization.'' (Cat 1)--A process to reduce a molten
stream of metal to droplets of a diameter of 500 micrometer or less by
the rapid evolution of a dissolved gas upon exposure to a vacuum.
``Variable geometry airfoils.'' (Cat 7)--Use trailing edge flaps or
tabs, or leading edge slats or pivoted nose droop, the position of
which can be controlled in flight.
``Vector Rate.'' (Cat 4)--See: ``Two dimensional Vector Rate'';
``Three dimensional Vector Rate''.
You. Any person, including a natural person, including a citizen of
the United States or any foreign country; any firm; any government,
government agency, government department, or government commission; any
labor union; any fraternal or social organization; and any other
association or organization whether or not organized for profit.
PART 774--THE COMMERCE CONTROL LIST
Sec.
774.1 Introduction.
774.2 [Reserved.]
Supplement No. 1 to Part 774--The Commerce Control List
Supplement No. 2 to Part 774--General Technology and Software Notes
Supplement No. 3 to Part 774--Cross-Reference List
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C.
287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; Sec. 201, Pub. L. 104-
58, 109 Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C.
2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50
U.S.C. app. 5; E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of
August 15, 1995, (60 FR 42767 August 17, 1995).
Sec. 774.1 Introduction.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C. The Bureau of Export Administration (BXA)
maintains the Commerce Control List (CCL) that includes items
(commodities, software, and technology) subject to the authority of
BXA. 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 Sec. 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.
Supplement No. 1 to Part 774--The Commerce Control List
Category 0--Nuclear Materials, Facilities & Equipment and
Miscellaneous
A. Equipment, Assemblies and Components
0A018 Items on the International Munitions List.
License Requirements
Reason for Control: NS, RS, AT, UN
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
RS applies to 0A918.c.................. RS Column 2.
AT applies to entire entry............. AT Column 1.
UN applies to entire entry............. Rwanda.
------------------------------------------------------------------------
License Exceptions
LVS: $5000 for 0A918.a and b; $3000 for 0A918.c; $1500 for
0A918.d through .f; and $0 for entire entry for Rwanda
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: 0A918.a, .b, and .c in $ value; 0A18.d, .e, and .f in
number
Related Controls: N/A
[[Page 12938]]
Related Definitions: N/A
Items:
a. Power controlled searchlights and control units therefor,
designed for military use, and equipment mounting such units; and
specially designed parts and accessories therefor;
b. Construction equipment built to military specifications,
specially designed for airborne transport; and specially designed
parts and accessories therefor;
c. 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, Office of Defense Trade Controls. (See 22
CFR parts 120 through 130.)
d. Bayonets;
e. Muzzle-loading (black powder) firearms;
Note: Antique small arms dating prior to 1890 and their
reproductions are not controlled by this ECCN 0A918.
f. Military helmets, except:
f.1. Conventional steel helmets other than those described by
0A918f.2 below.
f.2. Helmets, made of any material, equipped with communications
hardware, optional sights, slewing devices or mechanisms to protect
against thermal flash or lasers.
Note: Helmets described in 0A918.f.1 are controlled by 0A988.
Helmets described in 0A918.f.2 are controlled by the U.S. Department
of State, Office of Defense Trade Controls (See 22 CFR part 121,
Category X).
0A980 Horses by sea.
License Requirements
Reason for Control: SS
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
SS applies to entire entry. For
licensing requirements (and possible
License Exceptions), proceed directly
to part 754 of the EAR. The Commerce
Country Chart is not designed to
determine licensing requirements for
items controlled for SS reasons.
------------------------------------------------------------------------
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0A982 Saps; thumbcuffs, leg irons, shackles, and handcuffs; straight
jackets, plastic handcuffs, police helmets and shields; and parts and
accessories, n.e.s.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0A983 Specially designed implements of torture and thumbscrews; and
parts and accessories, n.e.s.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry. A license
is required for ALL destinations,
regardless of end-use. Accordingly, a
column specific to this control does
not appear on the Commerce Country
Chart. (See part 742 of the EAR for
additional information.).
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
The list of items controlled is contained in the ECCN heading.
0A984 Shotguns, barrel length 18 inches (45.72 cm) inches or over;
buckshot shotgun shells; except equipment used exclusively to treat or
tranquilize animals, and except arms designed solely for signal, flare,
or saluting use; and parts, n.e.s.
License Requirements
Reason for Control: CC, UN
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to shotguns with a barrel CC Column 1.
length over 18 in. (45.72 cm) but less
than 24 in. (60.96 cm) or buckshot
shotgun shells controlled by this
entry, regardless of end-user.
CC applies to shotguns with a barrel CC Column 2.
length over 24 in. (60.96 cm),
regardless of end-user.
CC applies to shotguns with a barrel CC Column 3.
length over 24 in. (60.96 cm) if for
sale or resale to police or law
enforcement.
UN applies to entire entry............. Rwanda.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: This entry does not control shotguns with a
barrel length of less than 18 inches (45.72 cm). See 22 CFR part
121, Category I. These items are subject to the export licensing
authority of the Department of State, Office of Defense Trade
Controls.
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0A985 Optical sighting devices for shotguns controlled by 0A984;
discharge type arms (for example, stun guns, shock batons, electric
cattle prods, immobilization guns and projectiles, etc.) except
equipment used exclusively to treat or tranquilize animals, and except
arms designed solely for signal, flare, or saluting use; and parts,
n.e.s.
License Requirements
Reason for Control: CC, UN
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
UN applies to entire entry............. Rwanda.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled:
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0A986 Shotgun shells, except buckshot shotgun shells, and parts.
License Requirements
Reason for Control: UN
UN applies to entire entry. A license is required for items
controlled by this entry to Cuba, Libya, North Korea and Rwanda. The
Commerce Country Chart is not designed to determine licensing
requirements for this entry. See part 746 of the EAR for additional
information.
Note: Exports from the U.S. and transhipments to Iran must be
licensed by the Department of Treasury, Office of Foreign Assets
Control. (See Sec. 746.7 of the EAR for additional information on
this requirement.)
[[Page 12939]]
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0A988 Conventional military steel helmets as described by 0A018.f.1;
and machetes.
License Requirements
Reason for Control: UN
UN applies to entire entry. A license is required for items
controlled by this entry to Cuba, Libya, North Korea and Rwanda. The
Commerce Country Chart is not designed to determine licensing
requirements for this entry. See part 746 of the EAR for additional
information.
Note: Exports from the U.S. and transhipments to Iran must be
licensed by the Department of Treasury, Office of Foreign Assets
Control. (See to Sec. 746.7 of the EAR for additional information on
this requirement.)
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
B. Test, Inspection and Production Equipment
0B001 Valves, specially designed or prepared for gaseous diffusion
separation process, that are wholly made of or lined with aluminum,
aluminum alloys, nickel, or alloy containing 60 percent by weight or
more nickel, 40 mm (1.6 in.) or more in diameter, with bellows seals,
and specially designed parts and components therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: 1.) This CCL entry controls only a subset of
the items contained on the corresponding EU List number (e.g.,
0B001.b). The items not included in this CCL entry are subject to
the export licensing authority of the Nuclear Regulatory Commission
(see 10 CFR part 110.) 2.) Specially designed or prepared valves for
gaseous diffusion separation process are also subject to the export
licensing authority of the Nuclear Regulatory Commission. (See 10
CFR part 110.)
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0B003 Plants for the production of uranium hexaflouride (UF6) and
specially designed or prepared equipment (including UF6
purification equipment), and specially designed parts and accessories
therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: This entry does not control nuclear plants
(i.e., fuel fabrication facilities, enrichment facilities,
reprocessing facilities, and heavy water production facilities).
Nuclear plants are subject to the export licensing authority of the
Nuclear Regulatory Commission. (See 10 CFR part 110.)
Related Definitions: N/A
Items:
a. Plants for the production of UF6;
b. Equipment and components, as follows, specially designed or
prepared for UF6 production:
b.1. Fluorination and hydrofluorination screw and fluid bed
reactors and flame towers;
b.2. Distillation equipment for the purification of UF6.
0B008 Reactor and power plant simulators and analytical models for
reactor and power plant simulators, models or mock-ups.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Nuclear equipment is also subject to the
export licensing authority of the Nuclear Regulatory Commission.
(See 10 CFR part 110.)
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
C. Materials
0C006 Nickel powder and porous nickel metal.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilogram
Related Controls: Nickel powders which are specially prepared
for the manufacture of gaseous diffusion barriers are subject to the
export licensing authority of the Nuclear Regulatory Commission.
(See 10 CFR part 110.)
Related Definitions: N/A
Items:
a. Powder with a nickel purity content of 99.0% or greater and a
mean particle size of less than 10 micrometers measured by the
American Society for Testing and Materials (ASTM) B 330 standard,
except filamentary nickel powders;
b. Porous nickel metal produced from materials controlled by
0C006.a except single porous nickel metal sheets not exceeding 1000
cm2 per sheet.
Note: 0C006.b controls porous metal formed by compacting and
sintering the material controlled by 0C006.a to form a metal
material with fine pores interconnected throughout the structure.
D. Software
0D001 ``Software'' specially designed or modified for the
``development'', ``production'' or ``use'' of items controlled by
0B001, 0B003, 0B008 or 0C006.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
[[Page 12940]]
E. Technology
0E001 ``Technology'' according to the General Technology Note for the
``development'', ``production'' or ``use'' of items controlled by
0B001, 0B003, 0B008 or 0C006.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0E018 ``Technology'' for the ``development'', ``production'', or
``use'' of items controlled by 0A018.b through 0A018.e.
License Requirements
Reason for Control: NS, AT, UN
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
UN applies to entire entry............. Rwanda.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
0E984 ``Technology'' for the ``development'' or ``production'' of
shotguns controlled by 0A984 and buckshot shotgun shells.
License Requirements
Reason for Control: CC, UN
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to ``technology'' for CC Column 1.
shotguns with a barrel length over 18
in. (45.72 cm) but less than 24 in.
(60.96 cm) and shotgun shells,
regardless of end-user.
CC applies to ``technology'' for CC Column 2.
shotguns with a barrel length over 24
in. (60.96 cm), regardless of end-user.
CC applies to ``technology'' for CC Column 3.
shotguns with a barrel length over 24
in. (60.96 cm) if for sale or resale
to police or law enforcement.
UN applies to entire entry............. Rwanda.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
EAR99 Items subject to the EAR that are not elsewhere specified in
this CCL Category or in any other category in the CCL are designated by
the number EAR99.
Category 1--Materials, Chemicals, ``Microorganisms,'' and Toxins
A. Equipment, Assemblies and Components
1A001 Components made from fluorinated compounds.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Seals, gaskets, sealants or fuel bladders specially designed
for aircraft or aerospace use made from more than 50% of any of the
materials controlled by 1C009.b or .c;
b. Piezoelectric polymers and copolymers made from vinylidene
fluoride:
b.1. In sheet or film form; and
b.2. With a thickness exceeding 200 micrometer;
c. Seals, gaskets, valve seats, bladders or diaphragms made from
fluoroelastomers containing at least one vinylether monomer,
specially designed for aircraft, aerospace or missile use.
1A002 ``Composite'' structures or laminates.
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to ``composite'' structures MT Column 1.
that are specially designed for
missile applications (including
specially designed subsystems and
components).
NP applies to 1A002.b.................. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1500
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definition: This entry 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 m2).
Items:
a. Having an organic ``matrix'' and made from materials
controlled by 1C010.c, .d or .e; or
b. Having a metal or carbon ``matrix'' and made from:
b.1. Carbon ``fibrous and filamentary materials'' with:
b.1.a. A ``specific modulus'' exceeding 10.15 x 106 m; and
b.1.b. A ``specific tensile strength'' exceeding 17.7 x 104
m; or
b.2. Materials controlled by 1C010.c.
Technical Notes
1. Specific modulus: Young's modulus in pascals, equivalent to
N/m2 divided by specific weight in N/m3, measured at a
temperature of (296 2) K ((23 2) deg. C)
and a relative humidity of (50 5)%.
2. Specific tensile strength: ultimate tensile strength in
pascals, equivalent to N/m2 divided by specific weight in N/
m3, measured at a temperature of (296 2) K ((23
2) deg. C) and a relative humidity of (50 # 5)%.
1A003 Manufactures of non-fluorinated polymeric substances controlled
by 1C008.a, in film, sheet, tape or ribbon form.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $200
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
[[Page 12941]]
Items:
a. With a thickness exceeding 0.254 mm; or
b. Coated or laminated with carbon, graphite, metals or magnetic
substances.
1A102 Resaturated pyrolized carbon-carbon materials designed for
systems controlled by 9A004.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1500
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: 1.) See 9A110 for controls on ``composite''
structures or laminates usable in missile systems. 2.) The
corresponding EU number contains a reference to 9A104. Items
controlled by the EU under 9A104 are subject to the export licensing
authority of the U.S. Department of State, Office of Defense Trade
Controls (see 22 CFR part 121).
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1A202 ``Composite'' structures, other than those controlled by 1A002,
in the form of tubes with an inside diameter of between 75 mm and 400
mm made with ``fibrous or filamentary materials'' controlled by 1C010.a
or .b or 1C210.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1A225 Platinized catalysts specially designed or prepared for
promoting the hydrogen isotope exchange reaction between hydrogen and
water for the recovery of tritium from heavy water or for the
production of heavy water.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1A226 Specialized packings for use in separating heavy water from
ordinary water and made of phosphor bronze mesh (chemically treated to
improve wettability) and designed for use in vacuum distillation
towers.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1A227 High density (lead glass or other) radiation shielding windows
greater than 0.09 m2 on cold area and with a density greater than
3 g/cm3 and a thickness of 100 mm or greater; and specially
designed frames therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Nuclear equipment is also subject to the
export licensing authority of the Nuclear Regulatory Commission.
(See 10 CFR part 110.)
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1A290 Depleted uranium (any uranium containing less than 0.711% of the
isotope U-235) in shipments of more than 1,000 kilograms in the form of
shielding contained in X-ray units, radiographic exposure or
teletherapy devices, radioactive thermoelectric generators, or
packaging for the transportation of radioactive materials.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: 1.) This entry does not control depleted
uranium in fabricated forms for use in munitions. See 22 CFR part
121 for depleted uranium subject to the export licensing authority
of the U.S. Department of State, Office of Defense Trade Controls.
2.) All forms of depleted uranium not specifically described in this
entry, or in the above note, are subject to the export licensing
authority of the Nuclear Regulatory Commission. (See 10 CFR part
110.)
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1A984 Chemical agents, including tear gas formulation containing 1
percent or less of orthochlorobenzalmalononitrile (CS), or 1 percent or
less of chloroacetophenone (CN), except in individual containers with a
net weight of 20 grams or less; smoke bombs; non-irritant smoke flares,
canisters, grenades and charges; other pyrotechnic articles having dual
military and commercial use; and fingerprinting powders, dyes and inks.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
[[Page 12942]]
1A988 Bulletproof and bullet resistant vests.
License Requirements
Reason for Control: UN
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
UN applies to entire entry. A license
is required for items controlled by
this entry to Cuba, Libya, North Korea
and Rwanda. The Commerce Country Chart
is not designed to determine licensing
requirements for this entry. See part
746 of the EAR for additional
information.
------------------------------------------------------------------------
Note: Exports from the U.S. and transhipments to Iran must be
licensed by the Department of the Treasury, Office of Foreign Assets
Control. (See Sec. 746.7 of the EAR for additional information on
this requirement.)
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: Bulletproof and bullet resistant vests (body
armor) are also subject to the export licensing authority of the
U.S. Department of State, Office of Defense Trade Controls. (See 22
CFR 121.1, Category X.)
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
B. Test, Inspection and Production Equipment
1B001 Equipment for the ``production'' of fibers, prepregs, preforms
or ``composites'' controlled by 1A002 or 1C010, and specially designed
components and accessories therefor.
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to entire entry EXCEPT MT Column 1.
1B001.d.4 and .f.
NP applies to filament winding machines NP Column 1.
described in 1B001.a that are capable
of winding cylindrical rotors having a
diameter between 75 mm (3 in) and 400
mm (16 in) and lengths of 600 mm (24
in) or greater; AND coordinating and
programming controls and precision
mandrels for these filament winding
machines.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A for 1B001.a; $5000 for all other items
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Filament winding machines of which the motions for
positioning, wrapping and winding fibers are coordinated and
programmed in three or more axes, specially designed for the
manufacture of ``composite'' structures or laminates from ``fibrous
and filamentary materials'';
b. Tape-laying or tow-placement machines of which the motions
for positioning and laying tape, tows or sheets can be coordinated
and programmed in two or more axes, specially designed for the
manufacture of ``composite'' airframe or ``missile'' structures;
c. Multi-directional, multidimensional weaving machines or
interlacing machines, including adapters and modification kits, for
weaving, interlacing or braiding fibers to manufacture ``composite''
structures, except textile machinery not modified for the above end-
uses;
d. Equipment specially designed or adapted for the
``production'' of ``fibrous or filamentary materials''; 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;
1B002 Systems and components therefor specially designed for
producing metal alloys, metal alloy powder or alloyed materials
controlled by 1C002.a.2, 1C002.b, or 1C002.c.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1B003 Tools, dies, molds or fixtures, for ``superplastic forming'' or
``diffusion bonding'' titanium or aluminum or their alloys, specially
designed for the manufacture of equipment described in this entry.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; components in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Airframe or aerospace structures;
b. Aircraft or aerospace engines; or
c. Specially designed components for those structures or
engines.
1B018 Equipment on the International Munitions List.
License Requirements
Reason for Control: NS, MT, RS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to equipment for the MT Column 1.
``production'' of rocket propellants.
RS applies to 1B018.a.................. RS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000 for 1B018.a for countries WITHOUT an ``X'' in RS
Column 2 on the Country Chart contained in Supplement No. 1 to part
738 of the EAR; $5000 for 1B018.b
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Equipment for the ``production'' of military explosives and
solid propellants.
a.1. Complete installations;
a.2. Specialized components (for example, dehydration presses;
extrusion presses for the extrusion of small arms, cannon and rocket
[[Page 12943]]
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 (10-4)
Torr, and specially designed components therefor.
1B101 Equipment, other than that controlled by 1B001, for the
production of structural composites and specially designed components
and accessories thereof.
License Requirements
Reason for Control: MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
NP applies to 1B101.a only............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: Components and accessories controlled by
this entry include moulds, mandrels, dies, fixtures and tooling for
the preform processing, curing, casting, sintering or bonding of
composite structures, laminates and manufactures thereof.
Items:
a. Filament winding machines, of which the motions for
positioning, wrapping and winding fibers can be coordinated and
programmed in three or more axes, designed for the manufacture of
``composite'' structures or laminates from ``fibrous or filamentary
materials''.
b. Tape-laying machines, of which the motions for positioning
and laying tape or sheets can be coordinated and programmed in two
or more axes, designed for the manufacture of ``composite'' airframe
or ``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
equipment to strain the fiber during heating;
c.2. Equipment for the chemical 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, not controlled by
9A110.
Note: Equipment covered by 1B101.d includes but is not limited
to rollers, tension stretchers, coating equipment, cutting
equipment, and clicker dies.
1B115 Equipment for the ``production'', handling and acceptance
testing of propellants or propellant constituents specified in 1C115.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; components in $ value
Related Controls: 1.) For other equipment for ``production'',
handling, mixing, curing, casting, pressing, machining, extruding or
acceptance testing of solid propellants or propellant constituents,
including but not limited to: equipment for the ``production'' of
atomized or spherical metallic powder in a controlled environment;
and fluid energy mills for grinding or milling ammonium perchlorate,
RDX, or HMX; 2.) Equipment for ``production'', handling, or
acceptance testing of liquid propellants or propellant constituents;
and 3.) Specially designed components for the items described in
1B115.a is subject to the export licensing authority of the
Department of State, Office of Defense Trade Controls. (See 22 CFR
part 121.)
Related Definitions: N/A
Items:
a. Batch mixers and continuous mixers, as follows, capable of
mixing solid propellants or propellant constituents under vacuum in
the range from 0 kPa to 13.326 kPa, and with temperature control
capability of the mixing chamber:
a.1. Batch mixers having:
a.1.a. A total volumetric capacity of 110 liters (30 gallons) or
more; and
a.1.b. At least one mixing/kneading shaft mounted off center;
a.2. Continuous mixers having:
a.2.a. Two or more mixing/kneading shafts; and
a.2.b. Capability to open the mixing chamber.
1B116 Specially designed nozzles for producing pyrolitically derived
materials formed on a mold, mandrel or other substrate from precursor
gases that decompose in the 1573 K (1300 deg. C) to 3,173 K (2900 deg.
C) temperature range at pressures of 130 Pa to 20 kPa.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1500
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1B201 Filament winding machines, other than those specified in 1B001
or 1B101, in which the motions for positioning, wrapping, and winding
fibers are coordinated and programmed in two or more axes, specially
designed to fabricate ``composite'' structures or laminates from
``fibrous and filamentary materials'' and capable of winding
cylindrical rotors of diameters between 75 mm (3 in.) and 400 mm (16
in.) and lengths of 600 mm (24 in.) or greater; coordinating and
programming controls therefor; and precision mandrels therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1B225 Electrolytic cells for fluorine production with a production
capacity greater than 250 g of fluorine per hour.
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
[[Page 12944]]
1B226 Electromagnetic isotope separators designed for, or equipped
with, single or multiple ion sources capable of providing a total ion
beam current of 50 mA or greater.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Isotope separators specially designed or
prepared for separating uranium isotopes are subject to the export
licensing authority of the Nuclear Regulatory Commission. (See 10
CFR part 110.)
Related Definitions: This entry controls; (a) separators capable
of enriching stable isotopes; and, (b) seperators with the ion
sources and collectors both in the magnetic field and those
configurations in which they are external to the field.
Items: The list of items controlled is contained in the ECCN
heading.
1B227 Ammonia synthesis converters or ammonia synthesis units in which
the synthesis gas (nitrogen and hydrogen) is withdrawn from an ammonia/
hydrogen high-pressure exchange column and the synthesized ammonia is
returned to that column.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1B228 Hydrogen-cryogenic distillation columns having all of the
following characteristics.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Heavy water production equipment is also
subject to the export licensing authority of the Nuclear Regulatory
Commission. (See 10 CFR part 110.)
Related Definitions: N/A
Items:
a. Designed to operate at internal temperatures of 35 K
(-238 deg. C) or less;
b. Designed to operate at 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 sulfur content or equivalent cryogenic and H2-
compatible materials; and
Note: Fine-grain stainless steels in this ECCN are defined to be
fine-grain austenitic stainless steels with an ASTM (or equivalent
standard) grain size number of 5 or greater.
d. With internal diameters of 1 m or greater and effective
lengths of 5 m or greater.
1B229 Water-hydrogen sulfide exchange tray columns constructed from
fine carbon steel with a diameter of 1.8 m (6 ft) or greater that can
operate at a nominal pressure of 2 MPa (300 psi) or greater, and
internal contactors therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: (1.) This entry does not control columns
specially designed or prepared for the production of heavy water
controlled on the NSG Trigger List (INFCIRC/254/part 2). See 10 CFR
part 110 for heavy water production equipment subject to the export
licensing authority of the Nuclear Regulatory Commission.
Related Definition: (1.) 1B229 includes internal contactors of
the columns are segmented trays with an effective assembled diameter
of 1.8 m (6 ft.) or greater, are designed to facilitate
countercurrent contacting and constructed of materials resistant to
corrosion by hydrogen sulfide/water mixtures. These may be sieve
trays, valve trays, bubble cap trays or turbogrid trays. (2.) Fine
carbon steel in this entry is defined to be steel with the
austenitic ASTM (or equivalent standard) grain size number of 5 or
greater. (3.) Materials resistant to corrosion by hydrogen sulfide/
water mixtures in this entry are defined to be stainless steels with
a carbon content of 0.03% or less.
Items: The list of items controlled is contained in the ECCN
heading.
1B230 Pumps circulating solutions of diluted or concentrated potassium
amide catalyst in liquid ammonia (KNH2/NH3) having all of the
following characteristics.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Heavy water production equipment is also
subject to the export licensing authority of the Nuclear Regulatory
Commission. (See 10 CFR part 110.)
Related Definitions: N/A
Items:
a. Airtight (i.e., hermetically sealed);
b. For concentrated potassium amide solutions (1% or greater),
operating pressure of 1.5 to 60 MPa (15 to 600 atmospheres [atm]);
or for dilute potassium amide solution (less than 1%), operating
pressure of 20 to 60 MPa (200 to 600 atm); and
c. A capacity greater than 8.5 m3/h (5 cubic feet per
minute).
1B231 Tritium facilities, plants and equipment.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: This entry does not control tritium, tritium
compounds, and mixtures containing tritium, or products or devices
thereof. See 10 CFR part 110 for tritium subject to the export
licensing authority of the Nuclear Regulatory Commission.
Related Definitions: N/A
Items:
a. Facilities or plants for the production, recovery,
extraction, concentration, or handling of tritium;
b. Equipment for tritium facilities or plants, as follows:
b.1. Hydrogen or helium refrigeration units capable of cooling
to 23 K (-250 deg.C) or less,
[[Page 12945]]
with heat removal capacity greater than 150 watts; or
b.2. Hydrogen isotope storage and purification systems using
metal hydrides as the storage, or purification medium.
1B232 Turboexpanders or turboexpander-compressor sets designed for
operation below 35K and a throughput of hydrogen gas of 1000 kg/hr or
greater.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
C. Materials
1C001 Materials specially designed for use as absorbers of
electromagnetic waves, or intrinsically conductive polymers.
License Requirements
Reason for Control: NS, MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Materials for absorbing frequencies exceeding 2 x 108 Hz
but less than 3 x 1012 Hz, except materials as follows:
a.1. Hair type absorbers, constructed of natural or synthetic
fibers, with non-magnetic loading to provide absorption;
a.2. Absorbers having no magnetic loss and whose incident
surface is non-planar in shape, including pyramids, cones, wedges
and convoluted surfaces;
a.3. Planar absorbers:
a.3.a. Made from:
a.3.a.1. 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 deg.
C); or
a.3.a.2. 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 deg. C);
Technical Note: Absorption test samples for 1C001.a.3.a should
be a square at least 5 wavelengths of center frequency on a side and
positioned in the far field of the radiating element.
a.3.b. Tensile strength less than 7 x 106N/m2; and
a.3.c. Compressive strength less than 14 x 106N/m2;
a.4. Planar absorbers made of sintered ferrite, with:
a.4.a. A specific gravity exceeding 4.4; and
a.4.b. A maximum operating temperature of 548 K (275 deg.C);
Note: Nothing in 1C001.a releases magnetic materials to provide
absorption when contained in paint.
b. Materials for absorbing frequencies exceeding 1.5 x 1014
Hz but less than 3.7 x 1014 Hz and not transparent to visible
light;
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;
Technical Note: Bulk electrical conductivity and sheet (surface)
resistivity should be determined using ASTM D-257 or equivalents.
1C002 Metal alloys, metal alloy powder or alloyed materials.
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
NP applies to 1C002.a.2.c or a.2.d if NP Column 1.
they exceed the parameters stated in
1C202.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definition: This entry does not control metal alloys,
metal alloy powder or alloyed materials for coating substrates.
Items:
a. Metal alloys, as follows:
a.1. Nickel or titanium-based alloys in the form of aluminides,
as follows, in crude or semi-fabricated forms:
a.1.a. Nickel aluminides containing 10 weight percent or more
aluminum;
a.1.b. Titanium aluminides containing 12 weight percent or more
aluminum;
a.2. Metal alloys, as follows, made from metal alloy powder or
particulate material controlled by 1C002.b:
a.2.a. Nickel alloys with:
a.2.a.1. A stress-rupture life of 10,000 hours or longer at 923
K (650 deg.C) and at a stress of 550 MPa; or
a.2.a.2. A low cycle fatigue life of 10,000 cycles or more at
823 K (550 deg.C) at a maximum stress of 700 MPa;
a.2.b. Niobium alloys with:
a.2.b.1. A stress-rupture life of 10,000 hours or longer at
1,073 K (800 deg.C) and at a stress of 400 MPa; or
a.2.b.2. A low cycle fatigue life of 10,000 cycles or more at
973 K (700 deg.C) at a maximum stress of 700 MPa;
a.2.c. Titanium alloys with:
a.2.c.1. A stress-rupture life of 10,000 hours or longer at 723
K (450 deg.C) and at a stress of 200 MPa; or
a.2.c.2. A low cycle fatigue life of 10,000 cycles or more at
723 K (450 deg.C) at a maximum stress of 400 MPa;
a.2.d. Aluminum alloys with a tensile strength of:
a.2.d.1. 240 MPa or more at 473 K (200 deg.C); or
a.2.d.2. 415 MPa or more at 298 K (25 deg.C);
a.2.e. Magnesium alloys with a tensile strength of 345 MPa or
more and a corrosion rate of less than 1 mm/year in 3% sodium
chloride aqueous solution measured in accordance with ASTM standard
G-31 or equivalents;
Technical Notes: 1. The metal alloys in 1C002.a are those
containing a higher percentage by weight of the stated metal than of
any other element.
2. Stress-rupture life should be measured in accordance with
ASTM standard E-139 or equivalents.
3. Low cycle fatigue life should be measured in accordance with
ASTM Standard E-606 `Recommended Practice for Constant-Amplitude
Low-Cycle Fatigue Testing' or equivalents. Testing should be axial
with an average stress ratio equal to 1 and a stress-concentration
factor (Kt) equal to 1. The average stress is defined as
maximum stress minus minimum stress divided by maximum stress.
b. Metal alloy powder or particulate material for materials
controlled by 1C002.a, as follows:
b.1. Made from any of the following composition systems:
Technical Note: X in the following equals one or more alloying
elements.
b.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 micrometer in 109 alloy particles;
b.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);
b.1.c. Titanium alloys (Ti-Al-X or Ti-X-Al);
b.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
[[Page 12946]]
b.1.e. Magnesium alloys (Mg-Al-X or Mg-X-Al); and
Technical Note: X equals one or more alloying elements.
b.2. Made in a controlled environment by any of the following
processes:
b.2.a. ``Vacuum atomization'';
b.2.b. ``Gas atomization'';
b.2.c. ``Rotary atomization'';
b.2.d. ``Splat quenching'';
b.2.e. ``Melt spinning'' and ``comminution'';
b.2.f. ``Melt extraction'' and ``comminution''; or
b.2.g. ``Mechanical alloying'';
c. Alloyed materials, in the form of uncomminuted flakes,
ribbons or thin rods produced in a controlled environment by ``splat
quenching,'' ``melt spinning'' or ``melt extraction'', used in the
manufacture of metal alloy powder or particulate material controlled
by 1C002.b;
1C003 Magnetic metals, of all types and of whatever form, having any
of the following characteristics.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: N/A
CIV: N/A
List of Items Controlled:
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Initial relative permeability 120,000 or more and thickness
0.05 mm or less;
Technical Note: Measurement of initial permeability must be
performed on fully annealed materials.
b. Magnetostrictive alloys with:
b.1. A saturation magnetostriction of more than 5 x 10-4;
or
b.2. A magnetomechanical coupling factor (k) of more than 0.8;
or
c. Amorphous alloy strips with:
c.1. A composition having a minimum of 75 weight percent of
iron, cobalt or nickel; and
c.2. A saturation magnetic induction (Bs) of 1.6 T or more,
and:
c.2.a. A strip thickness of 0.02 mm or less; or
c.2.b. An electrical resistivity of 2 x 10-4 ohmcm or more.
1C004 Uranium titanium alloys or tungsten alloys with a ``matrix''
based on iron, nickel or copper.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. A density exceeding 17.5 g/cm3;
b. An elastic limit exceeding 1,250 MPa;
c. An ultimate tensile strength exceeding 1,270 MPa; and
d. An elongation exceeding 8%.
1C005 ``Superconductive'' ``composite'' conductors in lengths
exceeding 100 m or with a mass exceeding 100 g.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions:
LVS: $1500
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Multifilamentary ``superconductive'' ``composite'' conductors
containing one or more niobium-titanium filaments:
a.1. Embedded in a ``matrix'' other than a copper or copper
based mixed ``matrix''; or
a.2. With a cross-section area less than
0.28 x 10-4mm2 (i.e., 6 micrometer in diameter for
circular filaments);
b. ``Superconductive'' ``composite'' conductors consisting of
one or more ``superconductive'' filaments other than niobium-
titanium:
b.1. With a ``critical temperature'' at zero magnetic induction
exceeding 9.85 K (-263.31 deg. C) but less than 24 K (-249.16 deg.
C);
b.2. With a cross-section of less than 0.28 x 10-4mm2;
and
b.3. Which remain in the ``superconductive'' state at a
temperature of 4.2 K (-268.96 deg. C) when exposed to a magnetic
field corresponding to a magnetic induction of 12 T.
1C006 Fluids and lubricating materials.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Barrels (55 U.S. gallons/ 209 liters)
Related Controls: N/A
Related Definitions: N/A
Items:
a. Hydraulic fluids containing, as their principal ingredients,
any of the following compounds or materials:
a.1. Synthetic hydrocarbon oils or silahydrocarbon oils with:
a.1.a. A flash point exceeding 477 K (204 deg. C);
a.1.b. A pour point at 239 K (-34 deg. C) or less;
a.1.c. A viscosity index of 75 or more; and
a.1.d. A thermal stability at 616 K (343 deg. C); or
Note: For the purpose of 1C006.a.1, silahydrocarbon oils contain
exclusively silicon, hydrogen and carbon.
a.2. Chlorofluorocarbons with:
a.2.a. No flash point;
a.2.b. An autogenous ignition temperature exceeding 977 K
(704 deg. C);
a.2.c. A pour point at 219 K (-54 deg. C) or less;
a.2.d. A viscosity index of 80 or more; and
a.2.e. A boiling point at 473 K (200 deg. C) or higher;
Note: For the purpose of 1C006.a.2, chlorofluorocarbons contain
exclusively carbon, fluorine and chlorine.
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; or
b.2. Fluorinated silicone fluids with a kinematic viscosity of
less than 5,000 mm2/s (5,000 centistokes) measured at 298 K
(25 deg. C);
c. Damping or flotation fluids with a purity exceeding 99.8%,
containing less than 25 particles of 200 micrometer 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); or
c.3. Polybromotrifluoroethylene;
Technical Note: For the purpose of 1C006:
a. Flash point is determined using the Cleveland Open Cup Method
described in ASTM D-92 or equivalents.
b. Pour point is determined using the method described in ASTM
D-97 or equivalents.
c. Viscosity index is determined using the method described in
ASTM D-2270 or equivalents.
d. Thermal stability is determined by the following test
procedure or 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%
[[Page 12947]]
Sn). The chamber is purged with nitrogen, sealed at atmospheric
pressure and the temperature raised to and maintained at 644
6 K (371 6 deg. 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/mm2
of ball surface;
2. The change in original viscosity as determined at 311 K
(38 deg. 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 equivalents.
1C007 Ceramic base materials, non-``composite'' ceramic materials,
ceramic ``matrix'' ``composite'' materials and precursor materials.
License Requirements
Reason for Control: NS, MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to items described in MT Column 1.
1C007.d (dielectric constant less than
6 at frequencies from 100Hz to 10,000
MHZ) for use in missile radomes.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000, except N/A for 1C007.e
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Base materials of single or complex borides of titanium
having total metallic impurities, excluding intentional additions,
of less than 5,000 ppm, an average particle size equal to or less
than 5 micrometer and no more than 10% of the particles larger than
10 micrometer;
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, except abrasives;
c. Ceramic-ceramic ``composite'' materials with a glass or
oxide-``matrix'' and reinforced with fibers from any of the
following systems:
c.1. Si-N;
c.2. Si-C;
c.3. Si-Al-O-N; or
c.4. Si-O-N;
d. Ceramic-ceramic ``composite'' materials, with or without a
continuous metallic phase, containing finely dispersed particles or
phases of any fibrous or whisker-like material, 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); or
e.3. Polycarbosilazanes (for producing ceramics with silicon,
carbon and nitrogen components).
1C008 Non-fluorinated polymeric substances.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $200
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a.1. Bismaleimides;
a.2. Aromatic polyamide-imides;
a.3. Aromatic polyimides;
a.4. Aromatic polyetherimides having a glass transition
temperature (Tg) exceeding 503 K (230 deg. C) as measured by
the wet method.
Note: 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 deg. C) measured
according to ASTM D-648, method A, or equivalents, with a load of
1.82 N/mm2 and composed of:
b.1. Either 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; or
b.2.c. 4-hydroxybenzoic acid;
c. Polyarylene ether ketones, as follows:
c.1. Polyether ether ketone (PEEK);
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.
1C009 Unprocessed fluorinated compounds.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Copolymers of vinylidene fluoride having 75% or more beta
crystalline structure without stretching;
b. Fluorinated polyimides containing 30% or more of combined
fluorine;
c. Fluorinated phosphazene elastomers containing 30% or more of
combined fluorine.
1C010 ``Fibrous and filamentary materials'' that may be used in
organic ``matrix'', metallic ``matrix'' or carbon ``matrix''
``composite'' structures or laminates.
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
NP applies to 1C010.a, .b, .c, and e.1. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1500, except for 1C010.a, .b, .c and e.1
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Organic ``fibrous and filamentary materials'' (except
polyethylene) with:
a.1. A ``specific modulus'' exceeding 12.7 x 10\6\m; and
a.2. A ``specific tensile strength'' exceeding 23.5 x 10\4\m;
b. Carbon ``fibrous and filamentary materials'' with:
b.1. A ``specific modulus'' exceeding 12.7 x 10\6\m; and
b.2. A ``specific tensile strength'' exceeding 23.5 x 10\4\m;
Technical Note: Properties for materials described in 1C010.b
should be determined using Suppliers of Advance Composite Materials
Association (SACMA) recommended methods SRM 12 to 17, or equivalent
tow tests, such as Japanese Industrial Standard JIS-R-7601,
Paragraph 6.6.2., and based on lot average.
Note: 1C010.b does not control fabric made from ``fibrous or
filamentary materials'' for the repair of aircraft structures or
laminates,
[[Page 12948]]
in which the size of individual sheets does not exceed 50 cm x 90
cm.
c. Inorganic ``fibrous or filamentary materials'' with:
c.1. A ``specific modulus'' exceeding 2.54 x 106 m; and
c.2. A melting, decomposition or sublimation point exceeding
1,922 K (1,649 deg. C) in an inert environment; except
Note: 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 x 10\6\ m;
2. Molybdenum and molybdenum alloy fibers;
3. Boron fibers;
4. Discontinuous ceramic fibers with a melting, decomposition or
sublimation point lower than 2,043 K (1,770 deg. 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; or
d.1.b. Materials controlled by 1C008.b, .c, .d, .e, or .f; or
d.2. Composed of materials controlled by 1C010.d.1.a or .b and
``commingled'' with other fibers controlled by 1C010.a, b, or c;
e. Resin- 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, .b, or .c; or
e.2. Made from organic or carbon ``fibrous or filamentary
materials'':
e.2.a. With a ``specific tensile strength'' exceeding
17.7 x 10\4\m;
e.2.b. With a ``specific modulus'' exceeding 10.15 x 10\6\m;
e.2.c. Not controlled by 1C010.a or .b; and
e.2.d. When impregnated with materials controlled by 1C008 or
1C009.b, or with phenolic or epoxy resins, having a glass transition
temperature (Tg) exceeding 383 K (110 deg. C).
Note: 1C010.e does not control 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 x 90cm.
1C018 Materials on the International Munitions List.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes for items listed in Advisory Note to 1C018
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Ethyl and Methyl centralites.
b. NN-Diphenylurea (unsymmetrical diphenylurea).
c. Methyl-NN-diphenylurea (methyl unsymmetrical diphenylurea).
d. Ethyl-NN-diphenylurea (ethyl unsymmetrical diphenylurea).
e. Ethyl phenyl urethane.
f. Diphenyl urethane.
g. Diortho tolyl-urethane.
h. 2-Nitrodiphenylamine.
i. p-Nitromethylaniline.
j. 2,2' Dinitropropanol.
k. Bis(2,2' dinitropropyl) formal and acetal.
l. 3-Nitraza-1,5 pentane diisocyanate.
m. Guanidine nitrate.
n. Hydrogen peroxide in concentrations of 85%.
o. Charges specially designed for civilian applications,
containing military explosives, except those items described in
1C992.
Technical Note: Military high explosives are solid, liquid or
gaseous substances or mixtures of substances that, in their
application as primary, booster, or main charges in warheads,
demolition and other military applications, are required to
detonate.
Advisory Note: Licenses are likely to be approved for export and
reexport to satisfactory end-users in Country Group D:1 of certain
explosive substances and mixtures in reasonable quantities for
civilian or industrial purposes when made into cartridges or charges
of an exclusively civilian or industrial nature, such as propellants
for sporting purposes or shooting gallery practice; cartridges for
riveting guns; and explosive charges for agricultural purposes,
public works, mines, quarries or oil-well drilling. The following
are the substances or mixtures to which this procedure applies:
a. Nitrate-based (40 percent or more) and provided they do not
contain more than 40 percent nitroglycol/nitroglycerin or no more
than 16 percent TNT;
b. Nitrocellulose with a nitrogen content of over 12.2 percent;
c. Nitroglycerin;
d. Single base nitrocellulose;
e. Sodium azide and other inorganic azides.
1C101 Materials and devices for reduced observables such as radar
reflectivity, ultraviolet/infrared signatures and acoustic signatures
other than those controlled by 1C001, usable in ``missiles'' and their
subsystems.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: Materials controlled by this entry include:
(a) structural materials and coatings specially designed for reduced
radar reflectivity; (b) coatings, including paints, specially
designed for reduced or tailored reflectivity or emissivity in the
microwave, infrared or ultraviolet spectra. This entry does not
control coatings when specially used for the thermal control of
satellites.
Items: The list of items controlled is contained in the ECCN
heading.
1C107 Graphite and ceramic materials.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Fine grain recrystallized bulk graphites (with a bulk density
of at least 1.72 g/cm\3\ measured at 288 K (15 deg. C) and having a
particle size of 100 micrometers or less), pyrolytic, or fibrous
reinforced graphites usable for rocket nozzles and reentry vehicle
nose tips; and
b. Ceramic ``composite'' materials (dielectric constant less
than 6 at frequencies from 100 Hz to 10,000 MHz) for use in radomes,
and bulk machinable silicon-carbide reinforced unfired ceramic,
useable for nose tips.
1C115 Propellants and constituent chemicals for propellants.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: The following materials, whether or not
encapsulated in aluminum, beryllium, magnesium, or zirconium are
subject to the export licensing authority of the U.S.
[[Page 12949]]
Department of State, Office of Defense Trade Controls: (See 22 CFR
part 121, Category V): (a.) Spherical aluminum powder with particles
of uniform diameter 60 x 10-6 m (60 micrometers) or less and an
aluminum content of 97 percent or greater; (b.) Metal fuels in
particle sizes less than 60 x 10-6m (60 microns), whether
spherical, atomized, spheroidal, flaked or ground, manufactured from
material consisting of 99 percent or more of: Boron; magnesium;
zirconium; alloys of boron, magnesium or zirconium; beryllium; or
iron powder with average particle size of 3 x 10-6 m (3
microns) or less produced by hydrogen reduction of iron oxide.
Related Definitions: N/A
Items:
a. Fuel substances:
a.1. Spherical aluminum powder, as follows:
a.1.a. Spherical aluminum powder with particles of uniform
diameter less than 500 x 10-6 m (500 micrometers), but greater
than 60 x 10-6 m (60 micrometers), and an aluminum content of
97 percent by weight or greater;
a.1.b. Spherical aluminum powder with particles of uniform
diameter 60 x 10-6 m (60 micrometers) or less, and an aluminum
content of 97 percent by weight or greater, but less than 99
percent;
a.2. Metal fuels containing beryllium, boron, magnesium,
zirconium, or alloys of boron, magnesium, or zirconium, as follows:
a.2.a. Metal fuels in particle sizes less than 500 x 10-6 m
(500 microns), but equal to or greater than 60 x 10-6 m (60
microns), whether spherical, atomized, spheroidal, flaked or ground,
consisting of 97 percent by weight or more of beryllium, boron,
magnesium, zirconium, and alloys of boron, magnesium, or zirconium;
a.2.b. Metal fuels in particle sizes less than 60 x 10-6 m
(60 microns), whether spherical, atomized, spheroidal, flaked or
ground, consisting of 97 percent by weight or more, but less than 99
percent, of beryllium, boron, magnesium, zirconium, and alloys of
boron, magnesium, or zirconium;
a.3. Metal fuels in particle sizes less than 500 x 10-6 m
(500 microns), whether spherical, atomized, spheroidal, flaked or
ground, consisting of 97 percent by weight or more of alloys of
beryllium.
a.4. Liquid oxidizer substances:
a.4.a. Dinitrogen trioxide;
a.4.b. Nitrogen dioxide/dinitrogen tetroxide;
a.4.c. Dinitrogen pentoxide;
b. Polymeric substances:
b.1. Carboxy-terminated polybutadiene (CTPB);
b.2. Commercial grade Hydroxy-terminated polybutadiene (HTPB);
Note: Military grade (i.e., Hydroxy-terminated polybutadiene
(HTPB) with a hydroxyl functionality greater than or equal to 2.2
but less than or equal to 2.4, a hydroxyl value of less than 0.77
meq/g, and a viscosity at 30 deg. C of less than 47 poise) is
controlled by the Office of Defense Trade Controls, U.S. Department
of State (see Category V of the USML (22 CFR part 121)).
b.3. Polybutadiene-acrylic acid (PBAA);
b.4. Polybutadiene-acrylic acid-acrylonitrile (PBAN).
c. Other propellant additives and agents:
c.1. Burning rate modifiers as follows: Butacene;
c.2. Nitrate esters and nitrated plasticizers as follows:
c.2.a. Triethylene glycol dinitrate (TEGDN);
c.2.b. Trimethylolethane trinitrate (TMETN);
c.2.c. Diethylene glycol dinitrate (DEGDN);
c.3. Stabilizers, as follows: 2-nitrodiphenylamine.
1C116 Maraging steels (steels generally characterized by high nickel,
very low carbon content and the use of substitutional elements or
precipitates to produce age-hardening), other than those controlled by
1C216, having an Ultimate Tensile Strength of 1500 MPa or greater
measured at 293 K (20 deg. C), in the form of sheet, plate, or tubing
with a wall or plate thickness equal to or less than 5.0mm (0.2 inch).
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C117 Tungsten, molybdenum, and alloys of these metals in the form of
uniform spherical or atomized particles of 500 micrometer diameter or
less with a purity of 97% or higher for fabrication of rocket motor
components; i.e., heat shields, nozzle substrates, nozzle throats, and
thrust vector control surfaces.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C202 Aluminum and titanium alloys in the form of tubes or cylindrical
solid forms (including forgings) with an outside diameter of more than
75 mm (3 inches).
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls:
Related Definition: The phrase ``alloys capable of'' encompasses
before and after heat treatment.
Items:
a. Aluminum alloys capable of an ultimate tensile strength of
460 MPa (.46 x 109 N/m2) or more at 293 K (20 deg. C);
b. Titanium alloys capable of an ultimate tensile strength of
900 MPa (0.9 x 109 N/m2) (130,500 lbs./in\2\) or more at
293 K (20 deg. C).
1C210 ``Fibrous and filamentary materials'' not controlled by 1C010.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: See 9A110 for fiber prepregs.
Related Definitions: For the purpose of this entry, the term
``fibrous or filamentary materials'' means continuous monofilaments,
yarns, rovings, tows or tapes.
Defintions for other terms used in this entry:
Filament or Monofilament is the smallest increment of fiber,
usually several m in diameter.
Strand is a bundle of filaments (typically over 200) arranged
approximately parallel.
Roving is a bundle (typically 12-120) of approximately parallel
strands.
Yarn is a bundle of twisted strands.
Tow is a bundle of filaments, usually approximately parallel.
Tape is a material constructed of interlaced or unidirectional
filaments, strands, rovings, tows or yarns, etc., usually
preimpregnated with resin.
Specific modulus is the Young's modulus in N/m\2\ divided by the
specific weight
[[Page 12950]]
in N/m\3\, measured at a temperature of 232 deg. C and a
relative humidity of 505 percent.
Specific tensile strength is the ultimate tensile strength in N/
m\2\ divided by specific weight in N/m\3\, measured at a temperature
of 232 deg. C and a relative humidity of 505
percent.
Items:
a. Carbon and aramid ``fibrous and filamentary materials''
having:
a.1. A ``specific modulus'' of 12.7 x 10\6\ m or greater; or
a.2. A ``specific tensile strength'' of 23.5 x 10\4\ m or
greater; or
Note: 1C210.a does not include aramid ``fibrous or filamentary
materials'' having 0.25 percent or more by weight of an ester based
fiber surface modifier.
b. Glass ``fibrous and filamentary materials'' having:
b.1. A ``specific modulus'' of 3.18 x 10\6\ m or greater; and
b.2. A ``specific tensile strength'' of 7.62 x 10\4\ m or
greater; or
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'' described in
1C210.a or .b;
Note: The resin forms the matrix of the composite.
1C216 Maraging steel capable of an ultimate tensile strength of 2050
MPa (2.050 x 109 N/m2) (300,000 lbs./in\2\) or more at 293 K
(20 deg. C), except forms in which no linear dimension exceeds 75 mm (3
inches).
License Requirements
Reason for Control: NP, MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
MT applies to maraging steels MT Column 1.
controlled by this entry that also
meet the specifications of 1C116.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: The phrase ``maraging steel capable of''
encompasses maraging steel before or after heat treatment.
Items: The list of items controlled is contained in the ECCN
heading.
1C225 Boron and boron compounds, mixtures, and loaded materials in
which the boron-10 isotope is more than 20% by weight of the total
boron content.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C226 Parts made of tungsten, tungsten carbide, or tungsten alloys
(greater than 90% tungsten) having a mass greater than 20 kg and a
hollow cylindrical symmetry (including cylinder segments) with an
inside diameter greater than 100 mm (4 in.), but less than 300 mm (12
in.), except parts specially designed for use as weights or gamma-ray
collimators.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C227 Calcium (high purity) containing both less than 1,000 parts per
million by weight of metallic impurities other than magnesium and less
than 10 parts per million of boron.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C228 Magnesium (high purity) containing both less than 200 parts per
million by weight of metallic impurities other than calcium and less
than 10 parts per million of boron.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C229 High purity (99.99% or greater) bismuth with very low silver
content (less than 10 parts per million).
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C230 Beryllium.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: This entry does not control: 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; and, c.) Beryl (silicate of beryllium and
[[Page 12951]]
aluminum) in the form of emeralds or aquamarines.
Items:
a. Beryllium metal;
b. Alloys containing more than 50% beryllium by weight;
c. Beryllium compounds;
d. Manufactures of beryllium metal, alloys, or compounds
described in 1C230.a, .b, or .c; or
e. Waste and scrap from beryllium metal, alloys, compounds, or
manufactures thereof described in 1C230.a, .b, .c or .d.
1C231 Hafnium.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Hafnium metal;
b. Alloys and compounds of hafnium containing more than 60
percent hafnium by weight; or
c. Manufactures of hafnium metal, alloys, or compounds described
in 1C231.a or .b.
1C232 Helium-3 or helium isotopically enriched in the helium-3
isotope, mixtures containing helium-3, and products or devices
containing any of the foregoing, except; a product or device containing
less than 1g of helium-3.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Liters
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C233 Lithium.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies entire entry................ NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
a. Lithium enriched in the 6 isotope (6Li) to greater than
7.5 atom percent, alloys, compounds or mixtures containing lithium
enriched in the 6 isotope, and products or devices containing any of
the foregoing; except thermoluminescent dosimeters.
Note: The natural occurrence of the 6 isotope in lithium is 7.5
atom percent.
b. Reserved.
1C234 Zirconium, with a hafnium content of less than 1 part hafnium to
500 parts zirconium by weight.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: Zirconium metal and alloys in the form of
tubes or assemblies of tubes, specially designed or prepared for use
in a reactor are subject to the export licensing authority of the
Nuclear Regulatory Commission. (See 10 CFR part 110.)
This entry does not control zirconium in the form of foil or
strip having a thickness not exceeding 0.10 mm (0.004 in.).
Items:
a. Zirconium metal;
b. Alloys containing more than 50% zirconium by weight;
c. Compounds;
d. Manufactures of zirconium metal, alloys, or compounds
described in 1C234.a, .b, or .c; or
e. Waste and scrap from zirconium metal, alloys, compounds, or
manufactures thereof controlled by 1C234.a, .b, .c, or .d;
Advisory Note: (Not eligible for License Exception GBS) Licenses
are likely to be approved for export and reexport to satisfactory
end-users in Country Group D:1 of the following:
a. Finished parts made of zirconium metal or alloys, specially
designed for an identified civil research or power reactor facility,
provided that:
a.1. None of the parts contains fissile materials; and
a.2. The importing country has agreed to the application of the
Safeguards of the International Atomic Energy Agency (IAEA) in
connection with the nuclear reactor facility;
b. Contained zirconium metal, or parts made therefrom, in
individual shipments not exceeding 100 kg, when intended for use in,
or in support of, an identified civil research or power reactor
facility, in connection with which it is contemplated that IAEA
Safeguards would be applied.
N.B.: The provisions of this Advisory Note notwithstanding,
current law prohibits approval to nuclear production or utilization
facilities in the People's Republic of China.
1C236 Alpha-emitting radionuclides having an alpha half-life of 10
days or greater, but less than 200 years, including compounds and
mixtures containing these radionuclides with a total alpha activity of
1 curie per kilogram (37 GBq) or greater; except devices containing
less than 3.7 GBq (100 millicuries) of alpha activity per device.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Millicuries
Related Controls: Alpha emitting radionuclides are subject to
the export licensing authority of the Nuclear Regulatory Commission.
(See 10 CFR part 110.)
Related Definition: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C237 Radium-226, radium-226 compounds, or mixtures containing radium-
226, and products or devices containing any of the foregoing; except
medical applicators, or a product or device containing not more than
0.37 GBq (10 millicuries) of radium-226 in any form.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
[[Page 12952]]
Related Controls: N/A
Related Definition: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C238 Chlorine trifluoride (C1F3).
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C350 Chemicals, that may be used as precursors for toxic chemical
agents.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Requirement Notes
1. SAMPLE SHIPMENTS: Certain sample shipments of chemicals
controlled under ECCN 1C350 may be made without a license, as
provided by the following:
a. Chemicals Not Eligible: The following chemicals are not
eligible for sample shipments: 0-Ethyl-2-diisopropylaminoethyl
methylphosphonite (QL) (C.A.S. #57856-11-8), Ethylphosphonyl
difluoride (C.A.S. #753-98-0), and Methylphosphonyl difluoride
(C.A.S. #676-99-3).
b. Countries Not Eligible: The following countries are not
eligible to receive sample shipments: Cuba, Iran, Libya, North
Korea, Sudan, Syria.
c. Sample Shipments: A license is not required for sample
shipments when the cumulative total of these shipments does not
exceed a 55-gallon container or 200 kg of each chemical to any one
consignee per calendar year. Multiple sample shipments, in any
quantity, not exceeding the totals indicated in this paragraph may
be exported without a license, in accordance with the provisions of
this NOTE 1.
d. The exporter is required to submit a quarterly written report
for shipments of samples made under this Note 1. The report must be
on company letterhead stationery (titled ``Report of Sample
Shipments of Chemical Precursors'' at the top of the first page) and
identify the chemical(s), Chemical Abstract Service Registry
(C.A.S.) number(s), quantity(ies), the ultimate consignee's name and
address, and the date exported. The report must be sent to the U.S.
Department of Commerce, Bureau of Export Administration, Room 2705,
Washington, DC 20230, Attn: ``Report of Sample Shipments of Chemical
Precursors''.
2. MIXTURES: Mixtures controlled by this entry that contain
certain concentrations of precursor and intermediate chemicals are
subject to the following licensing requirements:
a. A license is required, regardless of the concentrations in
the mixture, for the following chemicals: 0-Ethyl-2-
diisopropylaminoethyl methylphosphonite (QL) (C.A.S.#57856-11-8),
Ethylphosphonyl difluoride (C.A.S.#753-98-0) and Methylphosphonyl
difluoride (C.A.S.#676-99-3);
b. A license is required when at least one of the following
chemicals constitutes more than 10 percent of the weight of the
mixture on a solvent free basis: Arsenic trichloride (C.A.S.#7784-
34-1), Benzilic acid (C.A.S.#76-93-7), Diethyl ethylphosphonate
(C.A.S.#78-38-6), Diethyl methylphosphonite (C.A.S.#15715-41-0),
Diethyl-N,N-dimethylphosphoroamidate (C.A.S.#2404-03-7), N,N-
Diisopropyl-beta-aminoethane thiol (C.A.S.#5842-07-9), N,N-
Diisopropyl-2-aminoethyl chloride hydrochloride (C.A.S.#4261-68-1),
N,N-Diisopropyl-beta-aminoethanol (C.A.S.#96-80-0), N,N-Diisopropyl-
beta-aminoethyl chloride (C.A.S.#96-79-7), Dimethyl ethylphosphonate
(C.A.S.#6163-75-3), Dimethyl methylphosphonate (C.A.S.#756-79-6),
Ethylphosphonous dichloride [Ethylphosphinyl dichloride]
(C.A.S.#1498-40-4), Ethylphosphonus difluoride [Ethylphosphinyl
difluoride] (C.A.S.#430-78-4), Ethylphosphonyl dichloride
(C.A.S.#1066-50-8), Methylphosphonous dichloride [Methylphosphinyl
dicloride] (C.A.S.#676-83-5), Methylphosphonous difluoride
[Methylphosphinyl difluoride] (C.A.S.#753-59-3), Methylphosphonyl
dichloride (C.A.S.#676-97-1), Pinacolyl alcohol (C.A.S.#464-07-3),
3-Quinuclidinol (C.A.S.#1619-34-7), and Thiodiglycol (C.A.S.#111-48-
8); (Related ECCN: 1C995)
c. A license is required when at least one of all other
chemicals in the List of Items Controlled constitutes more than 25
percent of the weight of the mixture on a solvent free basis
(related ECCN: 1C995); and
d. A license is not required under this entry for mixtures when
the controlled chemical is a normal ingredient in consumer goods
packaged for retail sale for personal use. Such consumer goods are
controlled by ECCN EAR99.
e. Calculation of concentrations of AG-controlled chemicals.
1. Usual Commercial Purposes. In calculating the percentage of
an AG controlled chemical in a mixture (solution), any other
chemical must be excluded if it was not added for usual commercial
purposes, but was added for the sole purpose of circumventing the
Export Administration Regulations.
2. ``Solvent Free Basis Requirement.'' When calculating the
percentage, by weight, of components in a chemical mixture, you must
exclude from the calculation any component of the mixture that acts
as a solvent.
3. Solvent--For purposes of this ECCN ``A substance capable of
dissolving another substance to form a uniformly dispersed mixture
(solution)''.
Solvents are liquids at standard temperature and
pressure (STP).
In no instance is an AG controlled chemical considered
a ``solvent''.
All ingredients of mixtures are expressed in terms of
weight.
The solvent component of the mixture converts it into a
solution.
3. Compounds: A license is not required under this entry for
chemical compounds created with any chemicals identified in this
ECCN 1C350, unless those compounds are also identified in this
entry.
4. Special Comprehensive License: See part 752 of the EAR for
eligibility.
Technical Notes: 1. For purposes of this entry, a ``mixture'' is
defined as a solid, liquid or gaseous product made up of two or more
components that do not react together under normal storage
conditions.
2. The scope of this control applicable to Hydrogen Fluoride
(Item 25 in List of Items Controlled) includes its liquid, gaseous,
and aqueous phases, and hydrates.
3. All de minimis exclusions of this entry extend to all
mixtures including those that contain no solvents.
4. A Solvent is defined as a substance capable of dissolving
another substance to form a uniformly dispersed mixture (solution).
For examples and clarification of the term ``solvent free'' basis,
see Supplement No. 3 to part 774 of the EAR.
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Liters or kilograms, as appropriate
Related Controls: N/A
Related Definition: See part 770.2(k) of the EAR for synonyms
for the chemicals listed in this entry.
Items:
a. Precursor Chemicals, as follows:
a.1. (C.A.S. #1341-49-7) Ammonium hydrogen fluoride;
a.2. (C.A.S. #7784-34-1) Arsenic trichloride;
a.3. (C.A.S. #76-93-7) Benzilic acid;
a.4. (C.A.S. #107-07-3) 2-Chloroethanol;
a.5. (C.A.S. #78-38-6) Diethyl ethylphosphonate;
a.6. (C.A.S. #15715-41-0) Diethyl methylphosphonite;
a.7. (C.A.S. #2404-03-7) Diethyl-N,N-dimethylphosphoroamidate;
a.8. (C.A.S. #762-04-9) Diethyl phosphite;
a.9. (C.A.S. #100-37-8) N,N-Diethylethanolamine;
a.10. (C.A.S. #5842-07-9) N,N-Diisopropyl-.beta.-
aminoethanethiol;
a.11. (C.A.S. #4261-68-1) N,N-Diisopropyl-.2.-aminoethyl
chloride hydrochloride;
a.12. (C.A.S. #96-80-0) N,N-Diisopropyl-.beta.-aminoethanol;
a.13. (C.A.S. #96-79-7), N,N-Diisopropyl-.beta.-aminoethyl
chloride;
a.14. (C.A.S. #108-18-9) Diisopropylamine;
a.15. (C.A.S. #6163-75-3) Dimethyl ethylphosphonate;
[[Page 12953]]
a.16. (C.A.S. #756-79-6) Dimethyl methylphosphonate;
a.17. (C.A.S. #868-85-9) Dimethyl phosphite (dimethyl hyrogen
phosphite);
a.18. (C.A.S. #124-40-3) Dimethylamine;
a.19. (C.A.S. #506-59-2) Dimethylamine hydrochloride;
a.20. (C.A.S. #57856-11-8) 0-Ethyl-2-diisopropylaminoethyl
methylphosphonite (QL);
a.21. (C.A.S. #1498-40-4) Ethylphosphonous dichloride
[Ethylphosphinyl dichloride];/c
a.22. (C.A.S. #430-78-4) Ethylphosphonus difluoride
[Ethylphosphinyl difluoride];
a.23. (C.A.S. #1066-50-8) Ethylphosphonyl dichloride;
a.24. (C.A.S. #753-98-0) Ethylphosphonyl difluoride;
a.25. (C.A.S. #7664-39-3) Hydrogen fluoride;
a.26. (C.A.S. #3554-74-3) 3-Hydroxyl-1-methylpiperidine;
a.27. (C.A.S. #76-89-1) Methyl benzilate;
a.28. (C.A.S. #676-83-5) Methylphosphonous dichloride
[Methylphosphinyl dicloride];
a.29. (C.A.S. #753-59-3) Methylphosphonous difluoride
[Methylphosphinyl difluoride];
a.30. (C.A.S. #676-97-1) Methylphosphonyl dichloride;
a.31. (C.A.S. #676-99-3) Methylphosphonyl difluoride;
a.32. (C.A.S. #10025-87-3) Phosphorus oxychloride;
a.33. (C.A.S. #10026-13-8) Phosphorus pentachloride;
a.34. (C.A.S. #1314-80-3) Phosphorus pentasulfide;
a.35. (C.A.S. #7719-12-2) Phosphorus trichloride;
a.36. (C.A.S. #75-97-8) Pinacolone;
a.37. (C.A.S. #464-07-3) Pinacolyl alcohol;
a.38. (C.A.S. #151-50-8) Potassium cyanide;
a.39. (C.A.S. #7789-23-3) Potassium fluoride;
a.40. (C.A.S. #7789-29-9) Potassium hydrogen fluoride;
a.41. (C.A.S. #1619-34-7) 3-Quinuclidinol;
a.42. (C.A.S. #3731-38-2) 3-Quinuclidinone;
a.43. (C.A.S. #1333-83-1) Sodium bifluoride;
a.44. (C.A.S. #143-33-9) Sodium cyanide;
a.45. (C.A.S. #7681-49-4) Sodium fluoride;
a.46. (C.A.S. #1313-82-2) Sodium sulfide;
a.47. (C.A.S. #10025-67-9) Sulfur monochloride;
a.48. (C.A.S. #10545-99-0) Sulfur dichloride;
a.49. (C.A.S. #111-48-8) Thiodiglycol;
a.50. (C.A.S. #7719-09-7) Thionyl chloride;
a.51. (C.A.S. #102-71-6) Triethanolamine;
a.52. (C.A.S. #637-39-8) Triethanolamine hydrochloride;
a.53. (C.A.S. #122-52-1) Triethyl phosphite; and
a.54. (C.A.S. #121-45-9) Trimethyl phosphite.
b. Reserved.
1C351 Human pathogens, zoonoses, and ``toxins''.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............ CB Column 1.
AT applies to entire entry............ AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: All vaccines and ``immunotoxins'' are excluded
from the scope of this entry. See ECCN 1C996.
Related Definition: (1) For the purposes of this entry
``immunotoxin'' is defined as an antibody-toxin conjugate intended
to destroy specific target cells (e.g., tumor cells) that bear
antigens homologous to the antibody. (2) For the purposes of this
entry ``subunit'' is defined as a portion of the ``toxin''.
Items:
a. Viruses, as follows:
a.1. Chikungunya virus
a.2. Congo-Crimean 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; or
a.20. Yellow fever virus.
b. Rickettsiae, as follows:
b.1. Bartonella quintana (Rochalimea quintana, Rickettsia
quintana);
b.2. Coxiella burnetii;
b.3. Rickettsia prowasecki; or
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.
d. ``Toxins'', as follows: and subunits thereof:
d.1. Botulinum toxins;
d.2. Clostridium perfringens toxins;
d.3. Conotoxin;
d.4. Microcystin (cyanogenosin);
d.5. Ricin;
d.6. Saxitoxin;
d.7. Shiga toxin;
d.8. Staphylococcus aureus toxins;
d.9. Tetrodotoxin; or
d.10. Verotoxin.
1C352 Animal pathogens.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: All vaccines are excluded from the scope of
this entry. See ECCN 1C996.
Related Definition: N/A
Items:
List of Items Controlled
a. Viruses, as follows:
a.1. African swine fever virus;
a.2. Avian influenza virus that are;
a.2.a. Defined in EC Directive 92/40/EC 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 haemegglutinin.
a.2.b. Reserved.
a.3. Bluetongue virus;
a.4. Foot and mouth disease virus;
a.5. Goat pox virus;
a.6. Herpes virus (Aujeszky's disease);
a.7. 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;
a.12. Rinderpest virus;
a.13. Sheep pox virus;
a.14. Teschen disease virus;
a.15. Vesicular stomatitis virus; and
b. Bacteria, as follows:
b.1. Mycoplasma mycoides;
b.2. Reserved.
1C353 Genetically modified ``microorganisms''.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 1.
[[Page 12954]]
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: All vacines are excluded from the scope of
this entry. See ECCN 1C996.
Related Definition: N/A
Items:
a. Genetically modified ``microorganisms'' or genetic elements
that contain nucleic acid sequences associated with pathogenicity
derived from organisms identified in ECCNs 1C351.a to .c, 1C352, or
1C354.
b. Genetically modified ``microorganisms'' or genetic elements
that contain nucleic acid sequences coding for any of the
``toxins'', or their subunits, controlled by 1C351.,d
1C354 Plant pathogens.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: All vaccines are excluded from the scope of
this entry. See ECCN 1C996.
Related Definitions: N/A
Items:
List of Items Controlled
a. Bacteria, as follows:
a.1. Xanthonomas albilineas;
a.2. Xanthonomas campestris pv. citri;
b. Fungi, as follows:
b.1. Colletotrichum coffeanum var. virulans;
b.2. Cochliobolus miyabeanus (Helminthosporium oryzae);
b.3. Microcyclus ulei (syn. Dothidella ulei);
b.4. Puccinia graminis (syn. Puccinia graminis f. sp. tritici);
b.5. Puccinia striiformis (syn. Puccinia glumarum); or
b.6. Pyricularia grisea/Pyricularia oryzae.
1C980 Inorganic chemicals listed in Supplement No. 1 to part 754 of
the EAR 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.
License Requirements
Reason for Control: SS
Control(s)
SS applies to entire entry. For licensing requirements (and
possible License Exceptions) proceed directly to part 754 of the
EAR. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
Unit: Barrels/Liters
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C981 Crude petroleum including reconstituted crude petroleum, tar
sands & crude shale oil listed in Supplement No. 1 to part 754 of the
EAR.
License Requirements
Reason for Control: SS
Control(s)
SS applies to entire entry. For licensing requirements (and
possible License Exceptions) proceed directly to part 754 of the
EAR. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
Unit: Barrels/Liters
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C982 Other petroleum products listed in Supplement No. 1 to part 754
of the EAR 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.
License Requirements
Reason for Control: SS
Control(s)
SS applies to entire entry. For licensing requirements (and
possible License Exceptions) proceed directly to part 754 of the
EAR. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C983 Natural gas liquids and other natural gas derivatives listed in
Supplement No. 1 to part 754 of the EAR 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.
License Requirements
Reason for Control: SS
Control(s)
SS applies to entire entry. For licensing requirements (and
possible License Exceptions) proceed directly to part 754 of the
EAR. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
Unit: Barrels/Liters
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C984 Manufactured gas and synthetic natural gas (except when
commingled with natural gas and thus subject to export authorization
from the Department of Energy) listed in Supplement No. 1 to part 754
of the EAR 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.
License Requirements
Reason for Control: SS
Control(s)
SS applies to entire entry. For licensing requirements (and
possible License Exceptions) proceed directly to part 754 of the
EAR. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
Unit: Millions of cubic feet
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C988 Western red cedar (thuja picata), logs and timber, and rough,
dressed and worked lumber containing wane listed in Supplement No. 2 to
part 754 of the EAR.
License Requirements
Reason for Control: SS
Control(s)
SS applies to entire entry. For licensing requirements (and
possible License Exceptions) proceed directly to part 754 of the
EAR. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
Unit: Million board feet scribner
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C991 Vaccines containing items controlled by ECCNs 1C351, 1C352,
1C353 and 1C354.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
[[Page 12955]]
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C992 Oil well perforators.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Materials in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Shaped charges specially designed for oil well operations,
utilizing one charge functioning along a single axis, that upon
detonation produce a hole, and:
a.1. Contain any formulation of RDX, PYX, PETN, HNS, or HMX; and
a.2. Have only a uniformly shaped conical liner with an included
angle of 90 degrees or less; and
a.3. Have a total explosive mass of no more than 90 grams; and
a.4. Have a diameter not exceeding three inches.
1C993 Fibrous and filamentary materials, not controlled by 1C010 or
1C210, for use in ``composite'' structures and with a specific modulus
of 3.18 x 106 m or greater and a specific tensile strength of 7.62
x 104 m or greater.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1C994 Fluorocarbon electronic cooling fluids.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definitions: N/A
Items:
Fluorocarbon electronic cooling fluids made from at least 85% of
any of the following:
a. Monomeric or polymeric forms of perfluoropolyalkylether-
friazines or perfluoroaliphatic-ethers;
b. Perfluoroalkylamines; or
c. Perfluorocycloalkanes or perfluoroalkanes with all of the
following characteristics:
c.1. Density of 298K (25 deg. C) of 1.5 g/ml or more;
c.2. In a liquid state at 273K; (0 deg. C); and
c.3. Containing 60% or more by weight of fluorine.
1C995 Mixtures containing precursor and intermediate chemicals used in
the ``production'' of chemical warfare agents that are not controlled
by ECCN 1C350.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Kilograms
Related Controls: N/A
Related Definition: For calculation of de minimis quantities of
controlled chemicals in mixtures, see ECCN 1C350 and [Supplement 3
to part 770].
Items: The list of items controlled is contained in the ECCN
heading.
D. Software
1D001 ``Software'' specially designed or modified for the
``development'', ``production'', or ``use'' of items controlled by
1B001 to 1B003.
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to ``software'' for the MT Column 1.
``development'', ``production'', or
``use'' of items controlled by 1B001
for MT reasons.
NP applies to ``software'' for the NP Column 1.
``development'', ``production'' or
``use'' of items controlled by 1B001
for NP reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: Yes
TSR: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1D002 ``Software'' for the ``development'' of organic matrix, metal
matrix or carbon matrix laminates or ``composites''.
License Requirements
Reason for Control: NS, MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to ``software'' specially MT Column 1.
designed or modified for the
``development'' of ``composites''
controlled by 1A, 1B or 1C entries for
MT reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: Yes
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1D018 ``Software'' specially designed or modified for the
``development'', ``production'', or ``use'' of items controlled by
1B018.
License Requirements
Reason for Control: NS, MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to ``software'' for the MT Column 1.
``development'', ``production'', or
``use'' of items controlled by 1B018
for MT reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
[[Page 12956]]
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1D101 Other ``software'' not controlled by 1D001, 1D002, 1D103, and
1D018 specially designed for the ``development'', ``production'', or
``use'' of items controlled by 1A, 1B, and 1C for MT reasons.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1D103 ``Software'' specially designed for analysis of reduced
observables such as radar reflectivity, ultraviolet/infrared signatures
and acoustic signatures.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1D201 ``Software'' specially designed or modified for the ``use'' of
items controlled by 1B101 or 1B201 for NP reasons.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1D390 ``Software'' for process control that is specifically configured
to control or initiate ``production'' of chemicals controlled by ECCN
1C350.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
The list of items controlled is contained in the ECCN heading.
1D993 ``Software'' specially designed for the ``development'',
``production'', or ``use'' of equipment or materials controlled by
1C210.b, 1C993, 1C994.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
E. Technology
1E001 ``Technology'' according to the General Technology Note for the
``development'' or ``production'' of items controlled by 1A001.b,
1A001.c, 1A002, 1A003, 1A102, 1B or 1C (except 1C980 to 1C984, 1C988
and 1C991 to 1C995).
License Requirements
Reason for Control: NS, MT, NP, CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to ``technology'' for items NS Column 1.
controlled by 1A001.b and .c, 1A002,
1A003, 1B001 to 1B003, 1B018, 1B225,
1C001 to 1C010, 1C018, 1C230, 1C231,
1C233, or 1C234.
MT applies to ``technology'' for items MT Column 1.
controlled by 1A002, 1A102, 1B001,
1B018, 1B101, 1B115, 1B116, 1C001,
1C007, 1C101, 1C107, 1C115 to 1C117,
or 1C216 for MT reasons.
NP applies to ``technology'' for items NP Column 1.
controlled by 1A002, 1B001, 1B101,
1B201, 1B225 to 1B232, 1C001, 1C010,
1C202, 1C210, 1C216, 1C225 to 1C234,
1C236 to 1C238 for NP reasons.
CB applies to ``technology'' for items CB Column 1.
controlled by 1C351, 1C352, 1C353, or
1C354.
CB applies to ``technology'' for CB Column 2.
materials controlled by 1C350.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: The corresponding EU number captures
controls related to 1C235. This EU entry is not contained on the CCL
and is subject to the export licensing authority of the Nuclear
Regulatory Commission (See 10 CFR part 110.)
Items: The list of items controlled is contained in the ECCN
heading.
1E002 Other ``technology''.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Technology'' for the ``development'' or ``production'' of
polybenzothiazoles or polybenzoxazoles;
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 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 aluminium;
c.1.a.2. Single nitrides of boron (cubic crystalline forms);
c.1.a.3. Single or complex carbides of silicon or boron; or
[[Page 12957]]
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; or
c.1.b.2. 5,000 ppm for complex compounds or single nitrides; and
c.1.c.1. Average particle size equal to or less than 5
micrometer and no more than 10% of the particles larger than 10
micrometer; or
N.B.: For zirconia, these limits are 1 micrometer and 5
micrometer respectively;
c.1.c.2.a. Platelets with a length to thickness ratio exceeding
5;
c.1.c.2.b. Whiskers with a length to diameter ratio exceeding 10
for diameters less than 2 micrometer; and
c.1.c.2.c. Continuous or chopped fibers less than 10 micrometer
in diameter.
c.2. Non-``composite'' ceramic materials, except abrasives,
composed of the materials described in 1E002.c.1;
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.
Note: 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.
1E101 ``Technology'' according to the General Technology Note for the
``use'' of items controlled by 1A102, 1B001, 1B101, 1B115, 1B116,
1C001, 1C101, 1C107 or 1C115 to 1C117 for MT reasons.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1E103 ``Technology'' (including processing conditions) and procedures
for the regulation of temperature, pressures or atmosphere in
autoclaves or hydroclaves when used for the ``production'' of
``composites'' or partially processed ``composites''.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1E104 ``Technology'' for producing pyrolytically derived materials
formed on a mould, mandrel, or other substrate from precursor gases
that decompose at 1,300 deg.C to 2,900 deg.C temperature range at
pressures of 130 Pa (1 mm Hg) to 20 kPa (150 mm Hg).
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: This entry includes ``technology'' for the
composition of precursor gasses, flow-rates and process control
schedules and parameters.
Items: The list of items controlled is contained in the ECCN
heading.
1E201 ``Technology'' according to the General Technology Note for the
``use'' of items controlled by 1A002, 1A202, 1A225 to 1A227, 1A290,
1B001.a, 1B101, 1B201, 1B225 to 1B232, 1C002.a.2.c or a.2.d, 1C010.b,
1C202, 1C210, 1C216, 1C225 to 1C239 or 1D201 for NP reasons.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1E202 ``Technology'' according to the General Technology Note for the
``development'' or ``production'' of items controlled by 1A202 or 1A225
to 1A227, or 1A290.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1E203 ``Technology'' according to the General Technology Note for the
``development'' of ``software'' controlled by 1D201.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1E350 ``Technology'' for the ``use'' of chemicals controlled by 1C350
and for facilities designed or intended to produce chemicals controlled
by 1C350.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:
a. Overall plant design;
b. Design, specification, or procurement of equipment;
[[Page 12958]]
c. Supervision of construction, installation, or operation of
complete plant or components thereof;
d. Training of personnel; and
e. Consultation on specific problems involving such facilities.
1E351 ``Technology'' for the ``use'' of microbiological materials
controlled by 1C351, 1C352, 1C353, or 1C354.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1E391 ``Technology'' for the disposal of chemicals or microbiological
materials controlled by 1C350, 1C351, 1C352, 1C353, or 1C354.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to ``technology'' for the CB Column 1.
disposal of items controlled by 1C351,
1C352, 1C353, or 1C354.
CB applies to ``technology'' for the CB Column 2.
disposal of items controlled by 1C350.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
1E994 ``Technology'' for the ``development'', ``production'', or
``use'' of fibrous and filamentary materials controlled by 1C993 or
fluorocarbon electronic cooling fluids controlled by 1C994.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
EAR99 Items subject to the EAR that are not elsewhere specified in
this CCL Category or in any other category in the CCL are designated by
the number EAR99.
Category 2--Materials Processing
A. Equipment, Assemblies and Components
2A001 Ball bearings or solid roller bearings (except tapered roller
bearings) having tolerances specified by the manufacturer in accordance
with ABEC 7, ABEC 7P, or ABEC 7T or ISO Standard Class 4 or better (or
equivalents) and having any of the following characteristics.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes
CIV: Yes
List of Items Controlled
Unit: $ value
Related Controls: Quiet running bearings are subject to the
export licensing authority of the Department of State, Office of
Defense Trade Controls. (See 22 CFR part 121, Category VI.)
Related Definitions: (1.) This entry does not control balls with
tolerance specified by the manufacturer in accordance with ISO 3290
as grade 5 or worse. (2.) (a) DN is the product of the bearing bore
diameter in mm and the bearing rotational velocity in rpm. (b)
Operating temperatures include those temperatures obtained when a
gas turbine engine has stopped after operation. (3.) Annular Bearing
Engineers Committee (ABEC)
Items:
a. Rings, balls or rollers made from monel or beryllium;
b. Manufactured for use at operating temperatures above 573 K
(300 deg. C) either by using special materials or by special heat
treatment; or
c. 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.
2A002 Other ball bearings or solid roller bearings (except tapered
roller bearings) having tolerances specified by the manufacturer in
accordance with ABEC 9, ABEC 9P or ISO Standard Class 2 or better (or
equivalents).
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes
CIV: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: (1.) This entry does not control balls with
tolerance specified by the manufacturer in accordance with ISO 3290
as grade 5 or worse. (2.) (a) DN is the product of the bearing bore
diameter in mm and the bearing rotational velocity in rpm. (b)
Operating temperatures include those temperatures obtained when a
gas turbine engine has stopped after operation. (3.) Annular Bearing
Engineers Committee (ABEC)
Items: The list of items controlled is contained in the ECCN
heading.
2A003 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.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes
CIV: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: (1.) This entry does not control balls with
tolerance specified by the manufacturer in accordance with ISO 3290
as grade 5 or worse. (2.) (a) DN is the product of the bearing bore
diameter in mm and the bearing rotational velocity in rpm. (b)
Operating temperatures include those temperatures obtained when a
gas turbine engine has stopped after operation. (3.) American
National Standards Institute (ANSI); Anti-Friction Bearing
Manufacturers Association (AFBMA)
Items:
a. 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; or
b. Manufactured for use at operating temperatures below 219 K
(-54 deg.C) or above 423 K (150 deg. C).
[[Page 12959]]
2A004 Gas-lubricated foil bearing manufactured for use at operating
temperatures of 561 K (288 deg. C) or higher and a unit load capacity
exceeding 1 MPa.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes
CIV: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: (a) DN is the product of the bearing bore
diameter in mm and the bearing rotational velocity in rpm. (b)
Operating temperatures include those temperatures obtained when a
gas turbine engine has stopped after operation.
Items: The list of items controlled is contained in the ECCN
heading.
2A005 Active magnetic bearing systems.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: (a) DN is the product of the bearing bore
diameter in mm and the bearing rotational velocity in rpm. (b)
Operating temperatures include those temperatures obtained when a
gas turbine engine has stopped after operation.
Items: The list of items controlled is contained in the ECCN
heading.
2A006 Fabric-lined self-aligning or fabric-lined journal sliding
bearings manufactured for use at operating temperatures below 219 K(-54
deg.C) or above 423 K (150 deg.C).
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes
CIV: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: (a) DN is the product of the bearing bore
diameter in mm and the bearing rotational velocity in rpm. (b)
Operating temperatures include those temperatures obtained when a
gas turbine engine has stopped after operation.
Items: The list of items controlled is contained in the ECCN
heading.
2A225 Crucibles made of materials resistant to liquid actinide metals.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Crucibles with a volume between 150 ml and 8 liters, and made
of or coated with any of the following materials having a purity of
98% or greater:
a.1. Calcium fluoride (CaF2);
a.2. Calcium zirconate (metazirconate) (CaZrO3);
a.3. Cerium sulfide (Ce2S3);
a.4. Erbium oxide (erbia) (Er2O3);
a.5. Hafnium oxide (hafnia) (HfO2);
a.6. Magnesium oxide (MgO);
a.7. Nitrided niobium-titanium-tungsten alloy (approximately 50%
Nb, 30% Ti, and 20% W);
a.8. Yttrium oxide (yttria) (Y2O3); or
a.9. Zirconium oxide (zirconia) (ZrO2);
b. Crucibles with a volume between 50 ml and 2 liters, and made
of or lined with tantalum, having a purity of 99.9% or greater;
c. Crucibles with a volume between 50 ml and 2 liters and made
of or lined with tantalum (having a purity of 98% or greater) or
coated with tantalum carbide, nitride, boride (or any combination of
these).
2A226 Valves not controlled by 0B001 that are 5 mm (0.2 in.) or
greater in nominal size, with a bellows seal, wholly made of or lined
with aluminum, aluminum alloy, nickel, or alloy containing 60% or more
nickel, either manually or automatically operated.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Valves are also subject to the export
licensing authority of the Nuclear Regulatory Commission. (See 10
CFR part 110.)
Related Definition: For valves with different inlet and outlet
diameter, the nominal size parameter above refers to the smallest
diameter.
Items: The list of items controlled is contained in the ECCN
heading.
2A290 Generators and other equipment specially designed, prepared, or
intended for use with nuclear plants.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Nuclear equipment is also subject to the
export licensing authority of the Nuclear Regulatory Commission.
(See 10 CFR part 110.)
Related Definitions: N/A
Items:
a. Generators, turbine-generator sets, steam turbines, heat
exchangers, and heat exchanger type condensers designed or intended
for use in a nuclear reactor;
b. Process control systems intended for use with the equipment
controlled by 2A290.a.
2A291 Equipment related to nuclear material handling and processing
and to nuclear reactors.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: Nuclear equipment is also subject to the
export licensing authority of the Nuclear Regulatory Commission.
(See 10 CFR part 110.)
Related Definitions: N/A
Items:
[[Page 12960]]
a. Process control systems, except those controlled by 2A290.b,
intended for use with nuclear reactors.
b. Casks that are specially designed for transportation of high-
level radioactive material and that weigh more than 1,000 kg.
c. Commodities, parts and accessories specially designed or
prepared for use with nuclear plants (e.g., snubbers, airlocks,
reactor and fuel inspection equipment) except items licensed by the
Nuclear Regulatory Commission, pursuant to 10 CFR part 110.
2A292 Piping, fittings and valves made of, or lined with, stainless
steel, copper-nickel alloy or other alloy steel containing 10% or more
nickel and/or chromium.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Pressure tubes, pipes, and fittings in kilograms; valves
in number; parts and accessories in $ value
Related Controls: Piping, fittings, and valves are also subject
to the export licensing authority of the Nuclear Regulatory
Commission. (See 10 CFR part 110.)
Related Definitions: N/A
Items:
a. Pressure tube, pipe, and fittings of 200 mm (8 inches) or
more inside diameter, and suitable for operation at pressures of 3.4
MPa (500 psi) or greater;
b. Pipe valves having all of the following characteristics:
b.1. A pipe size connection of 8 inches or more inside diameter;
b.2. Rated at 1,500 psi or more;
c. Parts, n.e.s.
2A293 Pumps designed to move molten metals by electromagnetic forces.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2A993 Explosive detection systems, consisting of an automated device,
or combination of devices, with the ability to detect the presence of
different types of explosives, in passenger checked baggage, without
need for human skill, vigilance, or judgment.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2A994 Portable electric generators and specially designed parts.
License Requirements
Reason for Control: AT
Control(s)
AT applies to entire entry. A license is required for items
controlled by this entry to Cuba, Iran, Libya, 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.
Note: Exports from the U.S. and transhipments to Iran must be
licensed by the Department of Treasury, Office of Foreign Assets
Control. (See Sec. 742.8 and Sec. 746.7 of the EAR for additional
information on this requirement.)
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
B. Test, Inspection and Production Equipment
Note for Category 2B: 2B001 to 2B009 do not control measuring
interferometer systems, without closed or open loop feedback,
containing a ``laser'' to measure slide movement errors of machine-
tools, dimensional inspection machines or similar equipment.
2B001 ``Numerical control'' units, ``motion control boards'',
specially designed for ``numerical control'' applications on machine
tools, machine tools, and specially designed components therefore.
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
NP applies to entire entry............. NP Column 1.
Except as noted below: 2B001.a and .b ...............................
unless controlled ``software'' in
2D001 or 2D002.b resides therein,
2B001.c.1.b.1 (turning machines only),
c.1.b.2, c.1.b.3, c.1.b.4, c.1.b.5.b.2
(except bar machines (Swissturn),
limited to machining only bar feed
through, if maximum diameter is equal
to or less than 42mm 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),
c.1.b.6, c.2. and c.4, turning
machines with capacity 35
mm in diameter, milling machines with
greater than 2 meters travel and worse
than 30 micron accuracy, or crankshaft
and camshaft grinding machines.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: Yes, for items described in Advisory Note 1
CIV: Yes, for items described in Advisory Note 1
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
Technical Notes: 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.
Note: Rotary axes need not rotate over 360 deg.. A rotary axis
can be driven by a linear device, e.g., a screw or a rack-and-
pinion.
2. Axis nomenclature shall be in accordance with International
Standard ISO 841, Numerical Control Machines--Axis and Motion
Nomenclature.
a. ``Numerical control'' units for machine tools, as follows,
and specially designed components therefor:
[[Page 12961]]
a.1. Having more than four interpolating axes that can be
coordinated simultaneously for ``contouring control''; or
a.2. Having two, three or four interpolating axes that can be
coordinated simultaneously for ``contouring control'' and:
a.2.a. Capable of ``real-time processing'' of data to modify,
during the machining operation, tool path, feed rate and spindle
data by either:
a.2.a.1. 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; or
a.2.a.2. ``Adaptive control'' with more than one physical
variable measured and processing by means of a computing model
(strategy) to change one or more machining instructions to optimize
the process; or
a.2.b. Capable of receiving directly (on-line) and processing
computer-aided-design (CAD) data for internal preparation of machine
instructions; or
a.2.c. Capable, without modification, according to the
manufacturer's technical specifications, of accepting additional
boards which would permit an increase above the control levels
specified in 2B001, in the number of interpolating axes that can be
coordinated simultaneously for ``contouring control'', even if they
do not contain these additional boards;
Note: 2B001.a does not control ``numerical control'' units if:
a. Modified for and incorporated in uncontrolled machines; or
b. Specially designed for uncontrolled machines.
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'' as described in
2B001.a.2.a; or
b.3. Capable of receiving and processing CAD data as described
in 2B001.a.2.b;
c. 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:
c.1. Machine tools for turning, grinding, milling or any
combination thereof that:
c.1.a. Have two or more axes that can be coordinated
simultaneously for ``contouring control''; and
c.1.b. Have any of the following characteristics:
c.1.b.1. Two or more contouring rotary axes;
Technical Note: The c-axis on jig grinders used to maintain
grinding wheels normal to the work surface is not considered a
contouring rotary axis.
c.1.b.2. One or more contouring ``tilting spindles'';
Note: 2B001.c.1.b.2 applies to machine tools for grinding or
milling only.
c.1.b.3. ``Camming'' (axial displacement) in one revolution of
the spindle less (better) than 0.0006 mm total indicator reading
(TIR);
Note: 2B001.c.1.b.3 applies to machine tools for turning only.
c.1.b.4. ``Run out'' (out-of-true running) in one revolution of
the spindle less (better) than 0.0006 mm total indicator reading
(TIR);
c.1.b.5. The ``positioning accuracies'', with all compensations
available, are less (better) than:
c.1.b.5.a. 0.001 deg. on any rotary axis; or
c.1.b.5.b.1. 0.004 mm along any linear axis (overall
positioning) for grinding machines;
c.1.b.5.b.2. 0.006 mm along any linear axis (overall
positioning) for turning or milling machines;
N.B.: 2B001.c.1.b.5 does not control milling or turning machine
tools with a positioning accuracy along one axis, with all
compensations available, equal to or greater (worse) than 0.005 mm.
Technical Note: The positioning accuracy of ``numerically
controlled'' machine tools is to be determined and presented in
accordance with ISO/DIS 230/2, paragraph 2.13, in conjunction with
the requirements below:
a. Test conditions (paragraph 3):
1. For 12 hours before and during measurements, the machine tool
and accuracy measuring equipment will be kept at the same ambient
temperature. During the premeasurement time the slides of the
machine will be continuously cycled in the same manner that the
accuracy measurements will be taken;
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:
a. Line voltage variation shall not exceed 10% of
nominal rated voltage;
b. Frequency variation shall not exceed 2 Hz of
normal frequency;
c. Lineouts or interrupted service are not permitted.
b. Test program (paragraph 4):
1. Feed rate (velocity of slides) during measurement shall be
the rapid traverse rate;
Note: In the 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 test of an axis.
c. Presentation of test results (paragraph 2): The results of
the measurement must include:
1. Positioning accuracy (A); and
2. The mean reversal error (B).
c.1.b.6.a A ``positioning accuracy'' less (better) than 0.007
mm; and
c.1.b.6.b. A slide motion from rest for all slides within 20% of
a motion command input for inputs of less than 0.5 micrometer;
Technical Note: Minimum increment of motion test (slide motion
from rest): The test is conducted only if the machine tool is
equipped with a control unit the minimum increment of which is less
(better) than 0.5 micrometer. Prepare the machine for testing in
accordance with ISO 230.2 paragraphs 3.1, 3.2, 3.3. Conduct the test
on each axis (slide) of the machine tool as follows:
1. Move the axis over at least 50% of the maximum travel in plus
and minus directions twice at maximum feed rate, rapid traverse rate
or jog control;
2. Wait at least 10 seconds;
3. With manual data input, input the minimum programmable
increment of the control unit;
4. Measure the axis movement;
5. Clear the control unit with the servo null, reset or whatever
clears any signal (voltage) in the servo loop;
6. Repeat steps 2 to 5 five times, twice in the same direction
of the axis travel and three times in the opposite direction of
travel for a total of six test points;
7. If the axis movement is between 80% and 120% of the minimum
programmable input for four of the six test points, the machine is
controlled. For rotary axes, the measurement is taken 200 mm from
the center of rotation.
Note 1: 2B001.c.1 does not control cylindrical external,
internal, and external-internal grinding machines having all of the
following characteristics:
a. Not centerless (shoe-type) grinding machines;
b. Limited to cylindrical grinding;
c. A maximum workpiece capacity of 150 mm diameter or length;
d. Only two axes which can be coordinated simultaneously for
``contouring control''; and
e. No contouring c axis.
Note 2: 2B001.c.1 does not control machines designed
specifically as jig grinders having both of the following
characteristics:
a. Axes limited to x, y, c and a, where the c-axis is used to
maintain the grinding wheel normal to the work surface and the a-
axis is configured to grind barrel cams; and
b. A spindle ``run out'' not less (not better) than 0.0006 mm.
Note 3: 2B001.c.1 does not control tool or cutter grinding
machines having all of the following characteristics:
a. Shipped as a complete system with ``software'' specially
designed for the production of tools or cutters;
b. No more than two rotary axes that can be coordinated
simultaneously for ``contouring control'';
c. ``Run out'' (out-of-true running) in one revolution of the
spindle not less (not better) than 0.0006 mm total indicator reading
(TIR); and
d. The ``positioning accuracies'', with all compensations
available, are not less (not better) than:
1. 0.004 mm along any linear axis for overall positioning; or
2. 0.001 deg. on any rotary axis.
c.2. Electrical discharge machines (EDM) of the wire feed type
that have five or more axes that can be coordinated simultaneously
for ``contouring control'';
c.3. Electrical discharge machines (EDM) of the non-wire type
that have two or more rotary axes that can be coordinated
simultaneously for ``contouring control'';
[[Page 12962]]
c.4. Machine tools for removing metals, ceramics or composites:
c.4.a. By means of:
c.4.a.1. Water or other liquid jets, including those employing
abrasive additives;
c.4.a.2. Electron beam; or
c.4.a.3. ``Laser'' beam; and
c.4.b. Having two or more rotary axes that:
c.4.b.1. Can be coordinated simultaneously for ``contouring
control''; and
c.4.b.2. Have a ``positioning accuracy'' of less (better) than
0.003 deg.C.
Technical Note: Machines capable of being simultaneously
coordinated for contouring control in two or more rotary axes or one
or more ``tilting spindles'', remain controlled regardless of the
number of simultaneously coordinated contouring axes that can be
controlled by the ``numerical control'' unit attached to the
machine.
2B002 Non-''numerically controlled'' machine tools for generating
optical quality surfaces.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Turning machines using a single point cutting tool and having
all of the following characteristics:
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;
and
a.5. Slide perpendicularity less (better) than 0.001 mm per 300
mm of travel;
Technical Note: 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 both of the following
characteristics:
b.1. Spindle ``run out'' and ``camming'' less (better) than
0.004 mm TIR; and
b.2. Angular deviation of slide movement (yaw, pitch and roll)
less (better) than 2 seconds of arc, TIR, over full travel.
2B003 ``Numerically controlled'' or manual machine tools specially
designed for cutting, finishing, grinding or honing either of the
following classes of bevel or parallel axis hardened (Rc = 40 or
more) gears, and specially designed components, controls and
accessories therefor.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000
GBS: Yes for 2B003.a
CIV: Yes for 2B003.a
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Hardened bevel gears finished to a quality of better than
American Gear Manufacturers Association (AGMA) 13 (equivalent to ISO
1328 class 4); or
b. Hardened spur, helical and double-helical gears with a pitch
diameter exceeding 1,250 mm and a face width of 15% of pitch
diameter or larger finished to a quality of AGMA 14 or better
(equivalent to ISO 1328 class 3).
2B004 Hot ``isostatic presses'' and specially designed dies, molds,
components, accessories and controls therefor.
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to entire entry............. MT Column 1.
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Having a controlled thermal environment within the closed
cavity and possessing a chamber cavity with an inside diameter of
406 mm or more; and
b. Having:
b.1. A maximum working pressure exceeding 207 MPa;
b.2. A controlled thermal environment exceeding 1,773 K
(1,500 deg. C); or
b.3. A facility for hydrocarbon impregnation and removal of
resultant gaseous degradation products.
Technical Note: The inside chamber dimension is that of the
chamber in which both the working temperature and the working
pressure are achieved and does not include fixtures. That dimension
will be the smaller of either the inside diameter of the pressure
chamber or the inside diameter of the insulated furnace chamber,
depending on which of the two chambers is located inside the other.
2B005 Equipment specially designed for deposition, processing and in-
process control of inorganic overlays, coatings and surface
modification, for non-electronic substrates, by processes shown in the
Table and associated Notes following 2E003.d, and specially designed
automated handling, positioning, manipulation and control components
therefor.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Stored program controlled'' chemical vapor deposition (CVD)
production equipment with both of the following:
a.1. Process modified for one of the following:
a.1.a. Pulsating CVD;
a.1.b. Controlled nucleation thermal decomposition (CNTD); or
a.1.c. Plasma enhanced or plasma assisted CVD; and
a.2. Either of the following:
a.2.a. Incorporating high vacuum (equal to or less than 0.01 Pa)
rotating seals; or
a.2.b. Incorporating in situ coating thickness control;
b. ``Stored program controlled'' ion implantation production
equipment having beam currents of 5 mA or more;
c. ``Stored program controlled'' electron beam physical vapor
deposition (EB-PVD) production equipment incorporating:
c.1. Power systems rated for over 80 kW;
c.2. A liquid pool level ``laser'' control system that regulates
precisely the ingots feed rate; and
c.3. 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. ``Stored program controlled'' plasma spraying production
equipment having either of the following characteristics:
d.1. Operating at reduced pressure controlled atmosphere (equal
to or less than 10 kPa measured above and within 300 mm
[[Page 12963]]
of the gun nozzle exit) in a vacuum chamber capable of evacuation
down to 0.01 Pa prior to the spraying process; or
d.2. Incorporating in situ coating thickness control;
e. ``Stored program controlled'' sputter deposition production
equipment capable of current densities of 0.1 mA/mm2 or higher
at a deposition rate of 15 micrometer/hr or more;
f. ``Stored program controlled'' cathodic arc deposition
production equipment incorporating a grid of electromagnets for
steering control of the arc spot on the cathode;
g. ``Stored program controlled'' ion plating production
equipment allowing for the in situ measurement of either:
g.1. Coating thickness on the substrate and rate control; or
g.2. Optical characteristics.
Note: 2B005.g does not control standard ion plating coating
equipment for cutting or machining tools.
2B006 Dimensional inspection or measuring systems or equipment.
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
NP applies to 2B006.a, b and .c........ NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definition: This entry does not control measuring
interferometer systems, without closed or open loop feedback,
containing a ``laser'' to measure slide movement errors of machine
tools, dimensional inspection machines or similar equipment.
Items:
a. Computer controlled, ``numerically controlled'' or ``stored
program controlled'' dimensional inspection machines, having both of
the following characteristics:
a.1. Two or more axes; and
a.2. A one dimensional length ``measurement uncertainty'' equal
to or less (better) than (1.25+L/1,000) micrometer tested with a
probe with an ``accuracy'' of less (better) than 0.2 micrometer (L
is the measured length in mm);
b. Linear and angular displacement measuring instruments, as
follows:
b.1. Linear measuring instruments having any of the following
characteristics:
b.1.a. Non-contact type measuring systems with a ``resolution''
equal to or less (better) than 0.2 micrometer within a measuring
range up to 0.2 mm;
b.1.b. Linear voltage differential transformer systems with both
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; and
b.1.b.2. Drift equal to or less (better) than 0.1% per day at a
standard ambient test room temperature 1 K; or
b.1.c. Measuring systems having both of the following
characteristics:
b.1.c.1. Containing a ``laser''; and
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:
b.1.c.2.a. A ``resolution'' over their full scale of 0.1
micrometer or less (better); and
b.1.c.2.b. A ``measurement uncertainty'' equal to or less
(better) than (0.2+L/2,000) micrometer (L is the measured length in
mm);
b.2. Angular measuring instruments having an ``angular position
deviation'' equal to or less (better) than 0.00025 deg.;
Note: 2B006.b.2 does not control optical instruments, such as
autocollimators, using collimated light to detect angular
displacement of a mirror.
c. Systems for simultaneous linear-angular inspection of
hemishells, having both of the following characteristics:
c.1. ``Measurement uncertainty'' along any linear axis equal to
or less (better) than 3.5 micrometer per 5 mm; and
c.2. ``Angular position deviation'' equal to or less (better)
than 0.02 deg.;
d. Equipment for measuring surface irregularities, by measuring
optical scatter as a function of angle, with a sensitivity of 0.5 nm
or less (better);
Notes: 1. Machine tools that can be used as measuring machines
are controlled if they meet or exceed the criteria specified for the
machine tool function or the measuring machine function.
2. A machine described in 2B006 is controlled if it exceeds the
control threshold anywhere within its operating range.
Technical Notes: 1. The probe used in determining the
``measurement uncertainty'' of a dimensional inspection system shall
be as described in VDI/VDE 2617 Parts 2, 3, and 4.
2. All measurement values in 2B006 represent permissible
positive and negative deviations from the target value, i.e., not
total band.
2B007 ``Robots'', and specially designed controllers and ``end-
effectors'' therefor.
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
NP applies to 2B007.b and .c and to NP Column 1.
specially designed controllers and
``endeffectors'' therefor..
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5000, except 2B007.b and .c
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Capable in real time of full three-dimensional image
processing or full three-dimensional scene analysis to generate or
modify ``programs'' or to generate or modify numerical program data;
Note: 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\1/2\ D).
b. Specially designed to comply with safety standards applicable
to explosive munitions environments (i.e.) meeting electrical code
ratings for high explosives); or
c. Specially designed or rated as radiation hardened to
withstand greater than 5 x 104 grays(Silicon) (5 x 106
rad(Silicon)) without operational degradation.
2B008 Assemblies, units or inserts specially designed for machine
tools, or for equipment controlled by 2B006 or 2B007.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: This entry does not control measuring
interferometer systems, without closed or open loop feedback,
containing a laser to measure slide movement errors of machine-
tools, dimensional inspection machines or similar equipment.
Items:
a. Spindle assemblies, consisting of spindles and bearings as a
minimal assembly, with radial (``run out'') or axial (``camming'')
axis motion in one revolution of the spindle less (better) than
0.0006 mm total indicator reading (TIR);
b. Linear position feedback units, e.g., inductive type devices,
graduated scales, infrared systems or ``laser'' systems, having an
overall ``accuracy'' less (better) than (800 + (600 x L x
10-3))nm (L equals the effective length in mm);
c. Rotary position feedback units, e.g., inductive type devices,
graduated scales, infrared systems or ``laser'' systems, having an
``accuracy'' less (better) than 0.00025 deg.;
d. Slide way assemblies consisting of a minimal assembly of
ways, bed and slide having all of the following characteristics:
d.1. A yaw, pitch or roll of less (better) than 2 seconds of arc
TIR (reference: ISO/DIS 230/1) over full travel;
[[Page 12964]]
d.2. A horizontal straightness of less (better) than 2
micrometer per 300 mm length; and
d.3. A vertical straightness of less (better) than 2 micrometer
per 300 mm length;
e. Single point diamond cutting tool inserts, having all of the
following characteristics:
e.1. Flawless and chip-free cutting edge when magnified 400
times in any direction;
e.2. Cutting radius from 0.1 to 5 mm inclusive; and
e.3. Cutting radius out-of-roundness less (better) than 0.002 mm
TIR.
2B009 Specially designed printed circuit boards with mounted
components, or ``compound rotary tables'' or ``tilting spindles'',
capable of upgrading, according to the manufacturer's specifications,
``numerical control'' units, machine tools or feed-back devices to or
above the levels specified in ECCNs 2B001, 2B002, 2B003, 2B004, 2B005,
2B006, 2B007, or 2B008.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2B018 Equipment on the International Munitions List.
License Requirements
Reason for Control: NS, MT, RS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to specialized machinery, MT Column 1.
equipment, and gear for producing
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) usable in systems that are
controlled for MT reasons including
their propulsion systems and
components, and pyrolytic deposition
and densification equipment.
RS applies to entire entry............. RS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes for Advisory Note in this entry to 2B018
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in Sec. value
Related Controls: N/A
Related Definitions: N/A
Items:
Specialized machinery, equipment, gear, and specially designed
parts and accessories therefor, including but not limited to the
following, that are specially designed for the examination,
manufacture, testing, and checking of arms, appliances, machines,
and implements of war:
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 exclusively designed for use in the
manufacture of firearms, ordnance, and other stores and appliances
for land, sea, or aerial warfare;
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.
Advisory Note: 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.
2B104 Equipment and process controls designed or modified for
densification and pyrolysis of structural composite rocket nozzles and
reentry vehicle nose tips.
License Requirements
Reason for Control: MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
NP applies to 2B104.a.................. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: a. ``Isostatic presses'' other than those controlled by
2B004 having all of the following characteristics:
a.1. Capable of achieving a maximum working pressure of 10,000
psi (69 MPa) or greater;
a.2. Designed to achieve and maintain a controlled thermal
environment of 873 K (600 deg. C) or greater; and
a.3. Possessing a chamber cavity with an inside diameter of 254
mm or greater;
b. Chemical vapor deposition furnaces designed or modified for
the densification of carbon-carbon composites.
2B115 Flow forming machines, and specially designed components
therefor.
License Requirements
Reason for Control: MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
NP applies to 2B115.a.................. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definition: This entry controls only spin-forming
machines combining the functions of spin-forming and flow-forming.
Items: a. Flow-forming and spin-forming machines, and specially
designed components therefor, that according to the manufacturer's
technical specifications, can be equipped with ``numerical control''
units or a computer control; and
b. Having more than two axes that can be coordinated
simultaneously for ``contouring control''.
[[Page 12965]]
2B116 Vibration test systems, equipment, and components therefor.
License Requirements
Reason for Control: MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3,000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: NOTE: The term ``digital control'' refers
to equipment, the functions of which are, partly or entirely,
automatically controlled by stored and digitally coded electrical
signals.
Items: a. Vibration test systems employing feedback or closed
loop techniques and incorporating a digital controler, capable of
vibrating a system at 10 g RMS or more over the entire range 20 Hz
to 2,000 Hz and imparting forces of 50 kN (11,250 lbs.), measured
``bare table'', or greater;
Note: NP controls in 2B116.a apply to electrodynamic vibration
test systems, employing feedback or closed loop control techniques
and incorporating a digital controller, capable of vibrating at 10 g
RMS or more between 20 Hz and 2000 Hz and imparting forces of 50 kN
(11,250 lbs.) measured ``bare table,'' or greater.
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 of 50 kN (11,250
lbs.), measured ``bare table'', or greater, 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 of 50 kN, measured
``bare table'', or greater, and usable in vibration test systems
described in 2B116.a.
2B204 ``Isostatic presses,'' not controlled by 2B004 or 2B104, capable
of achieving a maximum working pressure of 10,000 psi (69 MPa) or
greater and having a chamber cavity with an inside diameter in excess
of 152 mm (6 inches) and specially designed dies and moulds, and
controls therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definition: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2B207 ``Robots'', and ``end-effectors'', other than those controlled
by 2B007, specially designed to comply with safety standards applicable
to handling explosives (i.e., meeting electrical code ratings for high
explosives) and specially designed controllers therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2B215 Flow-forming and spin-forming machines other than those
controlled by 2B115, and rotor-forming mandrels.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definition: This entry controls only spin-forming
machines combining the functions of spin-forming and flow-forming.
Items: a. Having three or more rollers (active or guiding); and
a.1. According to the manufacturer's technical specifications,
can be equipped with ``numerical control'' units or a computer
control;
b. Rotor-forming mandrels designed to form cylindrical rotors of
inside diameter between 75 mm (3 in.) and 400 mm (16 in.).
Note: This entry includes machines which have only a single
roller designed to deform metal plus two auxiliary rollers which
support the mandrel, but do not participate directly in the
deformation process.
2B225 Remote manipulators that can be used to provide remote actions
in radiochemical separation operations and hot cells.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: Remote manipulators provide translation of
human operator actions to a remote operating arm and terminal
fixture. They may be of a `master/slave' type or operated by
joystick or keypad.
Items:
a. Having a capability of penetrating 0.6 m or more of hot cell
wall (through-the-wall operation); or
b. Having 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)
2B226 Vacuum and controlled environment (inert gas) induction)
furnaces capable of operating above 1,123 K (850'C) and having
induction coils 600 mm or less in diameter and designed for power
inputs of 5 kW or more, and power supplies specially designed therefor
with a specified power output of 5 kW or more.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: This entry does not control furnaces
designed for semiconductor wafer manufacturing or processing.
Items: The list of items controlled is contained in the ECCN
heading.
[[Page 12966]]
2B227 Vacuum and controlled atmosphere metallurgical melting and
casting furnaces, and specially configured computer control and
monitoring systems therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: Related Definition: This entry does not
control furnaces designed for semiconductor wafer manufacturing or
processing.
Items:
a. Arc remelt and casting furnaces with consumable electrode
capacities between 1,000 cm3 and 20,000 cm3, and capable
of operating with melting temperatures above 1,973 K (1,700 deg. C);
b. Electron beam melting and plasma atomization and melting
furnaces with a power of 50 kW or greater and capable of operating
with melting temperatures above 1,473 K (1,200 deg. C).
2B228 Rotor fabrication and assembly equipment and bellows-forming
mandrels and dies.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: N/A
Items:
a. Rotor assembly equipment (e.g., precision mandrels, clamps,
and shrink fit machines) for assembly of gas centrifuge rotor tube
sections, baffles, and end caps.
b. Rotor straightening equipment for alignment of gas centrifuge
rotor tube sections to a common axis;
Technical Note: Normally such equipment will consist 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 (bellows made of high-strength aluminum alloys,
maraging steel, or high-strength filamentary materials) that have
all of the following dimensions:
c.1. 75 mm to 400 mm (3 in. to 6 in.) inside diameter;
c.2. 12.7 mm (0.5 in) or more in length; and
c.3. Single convolution depth more than 2 mm (0.08 in.).
2B229 Centrifugal balancing machines, fixed or portable, horizontal or
vertical.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: a. Designed for balancing flexible rotors having a length
of 600 mm (24 in.) or more and having all of the following
characteristics:
a.1. A swing or journal diameter of 75 mm (3 in.) or more;
a.2. Mass capability for 0.9 kg (2 lb.) to 23 kg (50 lb.); and
a.3. Capable of balancing speed of more than 5,000 rpm;
b. Designed for balancing hollow cylindrical rotor components,
and having all of the following characteristics:
b.1. A journal diameter of 75 mm (3 in.) or more;
b.2. Mass capability from 0.9 kg (2 lb.) to 23 kg (50 lb.);
b.3. Capable of balancing to a residual imbalance of 0.010 kg-
mm/kg per plane or better; and
b.4. Belt drive type.
2B230 Pressure transducers which are capable of measuring absolute
pressure at any point in the range 0 to 13 kPa, with pressure sensing
elements made of or protected by nickel, nickel alloys with more than
60% nickel by weight, aluminum or aluminum alloys.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: (1.)Pressure transducers are devices that
convert pressure measurements into an electrical signal. (2.) For
the purposes of this entry, ``accuracy'' includes non-linearity,
hysteresis and repeatability at ambient temperature.
Items:
a. Transducers with a full scale of less than 13 kPa and an
accuracy of better than 1% of full scale;
b. Transducers with a full scale of 13 kPa or greater and an
accuracy of better than 130 Pa.
2B231 Vacuum pumps with an input throat size of 38 cm (15 in.) or
greater with a pumping speed of 15,000 liters/second or greater and
capable of producing an ultimate vacuum better than 10\4\ Torr
(1.33 x 10-4 mbar).
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: Vacuum pumps for gaseous diffusion separation
process are subject to the export licensing authority of the Nuclear
Regulatory Commission. (See 10 CFR part 110.)
Related Definition: (1.) The ultimate vacuum is determined at
the input of the pump with the input of the pump blocked off. (2.)
The pumping speed is determined at the measurement point with
nitrogen gas or air.
Items: The list of items controlled is contained in the ECCN
heading.
2B232 Multistage light gas guns or other high-velocity gun systems
(coil, electromagnetic, electrothermal, or other advanced systems)
capable of accelerating projectiles to 2 km/s or greater and
specialized components therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
[[Page 12967]]
Items: The list of items controlled is contained in the ECCN
heading.
2B290 ``Numerically controlled'' machine tools not controlled by
2B001.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in Sec. value
Related Controls: N/A
Related Definition: N/A
Items:
a. Turning machines or combination turning/milling machines that
are capable of machining diameters greater than 2.5 meters.
b. Reserved.
2B350 Chemical manufacturing facilities and equipment.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 3.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: The controls in this entry do not apply to
equipment that is; 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.
Related Definition: For purposes of this entry the term
``chemical warfare agents'' are those agents subject to the export
licensing authority of the U.S. Department of State, Office of
Defense Trade Controls. (See 22 CFR Part 121, Category XIV)
Items:
a. Chemical processing equipment described in paragraph a.1
having any of the flow contact surfaces described in paragraph a.2:
a.1. Chemical processing equipment, as follows:
a.1.a. Reaction vessels or reactors, with or without agitators,
with a total internal (geometric) volume greater than 0.1 m3
(100 liters) and less than 20 m3 (20,000 liters);
a.1.b Agitators for use in reaction vessels or reactors
described in 2B350.a.1.a;
a.1.c. Storage tanks, containers or receivers with a total
internal (geometric) volume greater than 0.1 m3 (100 1);
a.1.d. Heat exchangers or condensers with a heat transfer
surface area less than 20 m2;
a.1.e. Distillation or absorption columns having a diameter
greater than 0.1 m;
a.1.f. Multiple seal valves incorporating a leak detection port,
bellows-seal valves, non-return (check) valves or diaphragm valves;
or
a.1.g. Multi-walled piping incorporating a leak detection port;
a.2. Where all surfaces that come into direct contact with the
chemical(s) being processed or contained are made from any of the
following materials:
a.2.a. Nickel, or alloys with more than 40% nickel by weight;
a.2.b. Alloys with more than 25% nickel and 20% chromium by
weight;
a.2.c. Fluoropolymers;
a.2.d. Glass or glass-lined (including vitrified or enamelled
coating);
a.2.e. Graphite (for heat exchangers or condensers, distillation
or absorption columns, or multi-walled piping only);
a.2.f. Tantalum or tantalum alloys;
a.2.g. Titanium or titanium alloys; or
a.2.h. Zirconium or zirconium alloys.
b. Remotely operated filling equipment in which all surfaces
that come into direct contact with the chemical(s) being processed
are made from any of the following materials:
b.1. Nickel, or alloys with more than 40% nickel by weight; or
b.2. Alloys with more than 25% nickel and 20% chromium by
weight.
c. Multi-seal, canned drive, magnetic, bellows, or diaphragm
pumps, with manufacturer's specified maximum flow-rate greater than
0.6m3/h, or vacuum pumps with the manufacturer's specified
maximum flow-rate greater than 5 m3/h (under standard
temperature (0 deg.C) and pressure (101.30 kPa) conditions) in which
all surfaces that come into direct contact with the chemical(s)
being processed are made from any of the following materials:
c.1. Nickel, or alloys with more than 40% nickel by weight;
c.2. Alloys with more than 25% nickel and 20% chromium by
weight;
c.3. Fluoropolymers;
c.4. Glass or glass-lined (including vitrified or enamelled
coating);
c.5. Graphite;
c.6. Tantalum or tantalum alloys;
c.7. Titanium or titanium alloys;
c.8. Zirconium or zirconium alloys;
c.9. Ceramics; or
c.10. Ferrosilicon.
d. Incinerators that are designed to destroy chemical warfare
agents, or chemical weapons precursors controlled by ECCN 1C350,
having specially designed waste supply systems, special handling
facilities with an average combustion chamber temperature greater
than 1000 deg.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:
d.1. Nickel, or alloys with more than 40% nickel by weight;
d.2. Alloys with more than 25% nickel and 20% chromium by
weight; or
d.3. Ceramics.
2B351 Toxic gas monitoring system; and dedicated detectors therefor.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 3.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Designed for continuous operation and usable for detecting
chemical warfare agents controlled on the U.S. Munitions List (See
22 CFR part 121) or chemical weapons precursors controlled by ECCN
1C350, or detecting organic compounds containing phosphorus,
sulphur, fluorine, or chlorine, or their compounds, at a
concentration less than 0.3 mg/m3; and
b. Designed for the detection of chemical compounds having a
cholinesterase-inhibiting activity.
2B352 Biological equipment.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 3.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Complete containment facilities at P3 or P4 containment
level;
Technical Note: 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 micro-
organisms, viruses or for toxin production, without the propagation
of aerosols, having a capacity equal to or greater than 100 liters.
Technical Note: Fermenters include bioreactors, chemostats, and
continuous-flow systems.
[[Page 12968]]
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. A flow rate greater than 100 liters per hour;
c.2. Components of polished stainless steel or titanium;
c.3. Double or multiple sealing joints within the stream
containment area;
c.4. Capable of in situ stream sterilization in a closed state.
Technical Note: Centifugal separators include decanters.
d. Cross-flow filtration equipment capable of continuous
separation of pathogenic microorganisms, viruses, toxins, and cell
cultures without the propagation of aerosols, having all of the
following characteristics:
d.1. Equal to or greater than 5 square meters;
d.2. Capable of in situ sterilization.
e. Steam sterilizable freeze-drying equipment with a condenser
capacity greater than 50 kgs. but less than 1,000 kgs. of ice in 24
hours.
f. Equipment that incorporates or is contained in P3 or P4
containment housing, as follows:
f.1. Independently ventilated protective full or half suits; and
f.2. Class III biological safety cabinets or isolators with
similar performance standards;
Note: In this entry, isolators include flexible isolators, dry
boxes, anaerobic chambers and glove boxes.
g. Chambers designed for aerosol challenge testing with
microorganisms, viruses, or toxins and having a capacity of 1
m3 or greater.
2B985 Equipment specially designed for manufacturing shotgun shells;
and ammunition hand-loading equipment for both cartridges and shotgun
shells.
License Requirements
Reason for Control: UN
Control(s)
UN applies to entire entry. A license is required for items
controlled by this entry to Cuba, Libya, North Korea and Rwanda. The
Commerce Country Chart is not designed to determine licensing
requirements for this entry. See part 746 of the EAR for additional
information.
Note: Exports from the U.S. and transhipments to Iran must be
licensed by the Department of Treasury, Office of Foreign Assets
Control. (See to Sec. 746.7 of the EAR for additional information on
this requirement.)
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2B991 Numerical control units for machine tools and ``numerically
controlled'' machine tools, n.e.s
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Numerical control'' units for machine tools:
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;
b. ``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:
b.1. Two or more axes that can be coordinated simultaneously for
contouring control; and
b.2. ``Positioning accuracies'', with all compensations
available:
b.2.a. Better than 0.020 mm, but no better than 0.004 mm along
any linear axis (overall positioning) for grinding machines;
b.2.b. Better than 0.020 mm, but no better than 0.006 mm along
any linear axis (overall positioning) for milling machines; or
b.2.c. Better than 0.020 mm, but no better than 0.010 mm along
any linear axis (overall positioning) for turning machines.
2B992 Manual dimensional inspection machines with two or more axes,
and measurement uncertainty equal to or less (better) than (3 + L/300)
micrometer in any axes (L measured length in mm).
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled:
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2B993 Gearmaking and/or finishing machinery not controlled by 2B003
capable of producing gears to a quality level of better than AGMA 11.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled:
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2B994 ``Robots'' not controlled by 2B007 or 2B207 that are capable of
employing feedback information in real-time processing from one or more
sensors to generate or modify ``programs'' or to generate or modify
numerical program data.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
C. Materials [Reserved]
D. Software
2D001 ``Software'' specially designed or modified for the
``development'', ``production'' or ``use'' of equipment controlled by
2A001 to 2A007 or 2B001 to 2B009.
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to ``software'' for MT Column 1.
equipment controlled by 2B004.
NP applies to ``software'' for NP Column 1.
equipment controlled by 2B001, 2B004,
2B006, 2B007 for NP reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
[[Page 12969]]
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2D002 Specific ``software.''
License Requirements
Reason for Control: NS, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
NP applies to 2D002.b.................. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: Sec. value
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Software'' to provide ``adaptive control'' and having both
of the following characteristics:
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;
and
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;
Note: 2D002.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. ``Software'' for electronic devices other than those
described in 2B001.a or b, which provides the ``numerical control''
capability of the equipment controlled by 2B001.
2D018 ``Software'' for the ``development'', ``production'' or ``use''
of equipment controlled by 2B018.
License Requirements
Reason for Control: NS, MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to ``software'' for MT Column 1.
equipment controlled by 2B018 for MT
reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2D101 ``Software'' for the ``development'', ``production'', or
``use'' of items controlled by 2B104, 2B115 or 2B116.
License Requirements
Reason for Control: MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2D201 ``Software'' specially designed for the ``development'',
``production'' or ``use'' of items controlled by 2B204, 2B207, 2B215,
2B227 or 2B229.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2D290 ``Software'' specially designed or modified for the
``development'', ``production'' or ``use'' of items controlled by
2A290, 2A291 or 2B290.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to ``software'' for NP Column 1.
equipment controlled by 2A291 or 2B290.
NP applies to ``software'' for NP Column 2.
equipment controlled by 2A290.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2D992 ``Software'' specially designed for the ``development'' or
``production'' of equipment controlled by 2B992.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2D993 ``Software'' specially designed for the ``development'',
``production'', or ``use'' of equipment controlled by 2B991, 2B993, or
2B994.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2D994 ``Software'' specially designed for the ``development'' or
``production'' of portable electric generators controlled by 2A994.
License Requirements
Reason for Control: AT
[[Page 12970]]
Control(s)
AT applies to entire entry. A license is required for items
controlled by this entry to Cuba, Iran, Libya, 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.
Note: Exports from the U.S. and transhipments to Iran must be
licensed by the Department of Treasury, Office of Foreign Assets
Control. (See Sec. 742.8 and Sec. 746.7 for additional information
on this requirement.)
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
E. Technology
2E001 ``Technology'' according to the General Technology Note for the
``development'' of items controlled by 2A (except 2A993 and 2A994) or
2B (except 2B018, 2B991 to 2B994) 2D (except 2D018, 2D992 to 2D994)
License Requirements
Reason for Control: NS, MT, NP, CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to ``technology'' for items NS Column 1.
controlled by 2A001 to 2A006, 2B001 to
2B009, 2D001 or 2D002.
MT applies to ``technology'' for items MT Column 1.
controlled by 2B004, 2B018 or 2B116,
2D001 or 2D101 for MT reasons.
NP applies to ``technology'' for items NP Column 1.
controlled by 2A292, 2A293, 2B001,
2B004, 2B006, 2B007, 2B104, 2B215,
2B225, 2B226, 2B228, 2B229, 2B231,
2B290, 2D001, 2D002 or 2D201 for NP
reasons.
NP applies to ``technology'' for NP Column 2.
equipment controlled by 2A290.
CB applies to ``technology'' for CB Column 3.
equipment controlled by 2B350 to 2B352.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2E002 ``Technology'' according to the General Technology Note for the
``production'' of items controlled by 2A (except 2A993 and 2A994) or 2B
(except 2B018, 2B991 to 2B994).
License Requirements
Reason for Control: NS, MT, NP, CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to ``technology'' for NS Column 1.
equipment controlled by 2A001 to
2A006, 2B001 to 2B009.
MT applies to ``technology'' for MT Column 1.
equipment controlled by 2B004, 2B018,
and 2B116 for MT reasons.
NP applies to ``technology'' for NP Column 1.
equipment controlled by 2A292, 2A293,
2B001, 2B004, 2B006, 2B007, 2B104,
2B215, 2B225, 2B226, 2B228, 2B229,
2B231, 2B290 NP reasons.
NP applies to ``technology'' for NP Column 2.
equipment controlled by 2A290.
CB applies to ``technology'' for CB Column 3.
equipment controlled by 2B350 to 2b352.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2E003 Other ``technology''.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
NP applies to ``technology'' controlled NP Column 1.
by 2E003.a.1 or a.3..
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes, except 2E003.a.1, a.3, .b, and .d
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Technology'':
a.1 For the ``development'' of interactive graphics as an
integrated part in ``numerical control'' units for preparation or
modification of part programs;
a.2 For the ``development'' of generators of machine tool
instructions (e.g., part programs) from design data residing inside
``numerical control'' units;
a.3 For the ``development'' of integration ``software'' for
incorporation of expert systems for advanced decision support of
shop floor operations into ``numerical control'' units;
b. ``Technology'' for metal-working manufacturing processes, as
follows:
b.1. ``Technology'' for the design of tools, dies or fixtures
specially designed for the following processes:
b.1.a. ``Superplastic forming'';
b.1.b. ``Diffusion bonding'';
b.1.c. ``Direct-acting hydraulic pressing'';
b.2. ``Technology'' consisting of process methods or parameters
as listed below used to control:
b.2.a. ``Superplastic forming'' of aluminium 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 aluminium alloys
or titanium alloys:
b.2.c.1. Pressure;
b.2.c.2. Cycle time;
b.2.d. ``Hot isostatic densification'' of titanium alloys,
aluminium 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:
d.1 The application of inorganic overlay coatings or inorganic
surface modification coatings, specified in column 3 of the
following Table;
d.2 To non-electronic substrates, specified in column 2 of the
following Table;
d.3 By processes specified in column 1 of the following Table
and defined in the Technical Note;
Category 2E--Materials Processing Table; Deposition Techniques
------------------------------------------------------------------------
1. Coating Process (1) 2. Substrate 3. Resultant Coating
------------------------------------------------------------------------
A. Chemical Vapor Deposition ``Superalloys''..... Aluminides for
(CDV). internal passages.
[[Page 12971]]
Ceramics and Low- Silicides.
expansion glasses Carbides.
(14). Dielectric layers
(15).
Carbon-carbon, Silicides.
Ceramic, and Metal Carbides.
matrix composites. Refractory metals.
Mixtures thereof
(4).
Dielectric layers
(15).
Aluminides
Alloyed aluminides
(2).
Cemented tungsten Carbides.
carbide (16), Tungsten.
Silicon carbide. Mixtures thereof.
(4)
Dielectric layers
(15).
Molybdenum and Dielectric layers
Molybdenum alloys. (15).
Beryllium and Dielectric layers
Beryllium alloys. (15).
Sensor window Dielectric layers
materials (9). (15).
B. Thermal-Evaporation
Physical Vapor Deposition
(TE-PVD).
1. Physical Vapor ``Superalloys''..... Alloyed silicides.
Deposition (PVD): Alloyed aluminides
Electron-Beam (EB-PVB). (2).
MCrAlx (5).
Modified zirconia
(12).
Silicides.
Aluminides.
Mixtures thereof
(4).
Ceramics and Low- Dielectric layers
expansion glasses (15).
(14).
Corrosion resistant MCrAlx (5).
steel (7). Modified zirconia
(12).
Mixtures thereof
(4).
Carbon-carbon, Silicides.
Ceramic and Metal Carbides.
matrix composites. Refractory metals.
Mixtures thereof
(4).
Dielectric layers
(15).
Cemented tungsten Carbides.
carbide (16), Tungsten.
Silicon carbide. Mixtures thereof (4)
Dielectric layers
(15).
Molybdenum and Dielectric layers
Molybdenum alloys. (15).
Beryllium and Dielectric layers
Beryllium alloys. (15).
Borides.
Sensor window Dielectric layers
materials (9). (15).
Titanium alloys (13) Borides.
Nitrides.
2. Ion assisted Ceramics and Low- Dielectric layers
resistive heating expansion glasses (15).
Physical Vapor (14).
Deposition (Ion
Plating).
Carbon-carbon, Dielectric layers
Ceramic and Metal (15).
matrix composites.
Cemented tungsten Dielectric layers
carbide (16), (15).
Silicon carbide.
Molybdenum and Dielectric layers
Molybdenum alloys. (15).
Beryllium and Dielectric layers
Beryllium alloys. (15).
Sensor window Dielectric layers
materials (9). (15).
3. Physical Vapor Ceramics and Low- Silicides.
Deposition: ``laser'' expansion glasses Dielectric layers
evaporation. (14). (15).
Carbon-carbon, Dielectric layers
Ceramic and Metal (15).
matrix composites.
Cemented tungsten Dielectric layers
carbide (16), (15).
Silicon carbide.
Molybdenum and Dielectric layers
Molybdenum alloys. (15).
Beryllium and Dielectric layers
Beryllium alloys. (15).
Sensor window Dielectric layers
materials (9). (15).
4. Physical Vapor ``Superalloys''..... Alloyed silicides.
Deposition: cathodic Alloyed aluminides
arc discharge. (2).
MCrAlx (5).
Polymers (11) and Borides.
Organic matrix Carbides.
composites. Nitrides.
C. Pack cementation (see A Carbon-carbon, Silicides.
above for out-of-pack Ceramic and Metal Carbides.
cementation) (10). matrix composites. Mixtures thereof
(4).
[[Page 12972]]
Titanium alloys (13) Silicides.
Aluminides.
Alloyed aluminides
(2).
Refractory metals
and alloys (8).
D. Plasma spraying.......... Superalloys......... MCrAlx (5).
Modified zirconia
(12).
Mixtures thereof
(4).
Abradable.
Nickel-Graphite.
Abradable.
Ni-Cr-Al-.
Bentonite.
Abradable.
Al-Si-Polyester.
Alloyed aluminides
(2).
Aluminum alloys (6). MCrAlx (5).
Modified zirconia
(12).
Silicides.
Mixtures thereof
(4).
Refractory metals Aluminides.
and alloys (8). Silicides.
Carbides.
Corrosion resistant Modified zirconia
steel (7). (12).
Mixtures thereof
(4).
Titanium alloys (13) Carbides.
Aluminides.
Silicides.
Alloyed aluminides
(2).
Abradable.
Nickel-Graphite.
Abradable.
Ni-Cr-Al-.
Bentonite.
Abradable.
Al-Si-Polyester.
E. Slurry Deposition........ Refractory metals Fused silicides.
and alloys (8). Fused aluminides
except for
resistance heating
elements.
Carbon-carbon, Silicides.
Ceramic and Metal Carbides.
matrix composites. Mixtures thereof
(4).
F. Sputter Deposition....... ``Superalloys''..... Alloyed silicides.
Alloyed aluminides
(2).
Noble metal modified
aluminides (3).
MCrAlx (5).
Modified zirconia
(12).
Platinum.
Mixtures thereof
(4).
Ceramics and Low- Silicides.
expansion glasses Platinum.
(14). Mixtures thereof.
(4)
Dielectric layers
(15).
Titanium alloys (13) Borides.
Nitrides.
Oxides.
Silicides.
Aluminides.
Alloyed aluminides
(2).
Carbides.
Carbon-carbon, Silicides.
Ceramic and Metal Carbides.
matrix composites. Refractory metals.
Mixtures thereof
(4).
Dielectric layers
(15).
Cemented tungsten Carbides.
carbide (16), Tungsten.
Silicon carbide. Mixtures thereof
(4).
Dielectric layers
(15).
Molybdenum and Dielectric layers
Molybdenum alloys. (15).
Beryllium and Borides.
Beryllium alloys. Dielectric layers
(15).
Sensor window Dielectric layers
materials (9). (15).
[[Page 12973]]
Refractory metals Aluminides.
and alloys (8). Silicides.
Oxides.
Carbides.
G. Ion Implantation......... High temperature Additions of
bearing steels. Chromium, Tantalum,
or Niobium
(Columbium).
Titanium alloys (15) Borides.
Nitrides.
Beryllium and Borides.
Beryllium alloys.
Cemented tungsten Carbides.
carbide (16). Nitrides.
------------------------------------------------------------------------
Notes to Table on Deposition Techniques
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. Mixtures consist of 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 aluminium and less than 2
weight percent of yttrium;
b. CoCrAlY coatings which contain 22 to 24 weight percent of
chromium, 10 to 12 weight percent of aluminium and 0.5 to 0.7 weight
percent of yttrium; or
c. NiCrAlY coatings which contain 21 to 23 weight percent of
chromium, 10 to 12 weight percent of aluminium and 0.9 to 1.1 weight
percent of yttrium.
6. The term ``aluminium alloys'' refers to alloys having an
ultimate tensile strength of 190 MPa or more measured at 293 K
(20 deg. C).
7. The term `corrosion resistant steel' refers to AISI (American
Iron and Steel Institute) 300 series or equivalent standard steels.
8. Refractory metals consist of 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 and the
following metal halides: potassium iodide, potassium fluoride, or
sensor window materials of more than 40 mm diameter for thallium
bromide and thallium chlorobromide.
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, etc., 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 to aerospace alloys having an
ultimate tensile strength of 900 MPa or more measured at 293 K
(20 deg. C).
14. Low-expansion glasses refers to glasses which have a
coefficient of thermal expansion of 1 x 10-7 K-1 or less
measured at 293 K (20 deg. C).
15. Dielectric layers are 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 arbide/nickel.
Technical Note to Table on Deposition Techniques
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.
Note 1: 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.
Note 2: Pack denotes a substrate immersed in a powder mixture.
Note 3: 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. Resistive Heating PVD employs electrically resistive heating
sources capable of producing a controlled and uniform flux of
evaporated coating species;
3. ``Laser'' Evaporation uses either pulsed or continuous wave
``laser'' beams to heat 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.
Note: This definition does not include random cathodic arc
deposition with non-biased substrates.
c. Ion Plating is a special modification of a general TE-PVD
process in which a plasma
[[Page 12974]]
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 to be deposited 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.
d. 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); and
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 deg. C) to 1,375 K (1,102 deg. C) for
sufficient time to deposit the coating.
e. 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 carried out underwater.
Note 1: Low pressure means less than ambient atmospheric
pressure.
Note 2: High velocity refers to nozzle-exit gas velocity
exceeding 750 m/s calculated at 293 K (20 deg. C) at 0.1 MPa.
f. 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.
g. 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.
Note 1: 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.
Note 2: Low-energy ion beams (less than 5 keV) can be used to
activate the deposition.
h. 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.
Accompanying Technical Information to Table on Deposition Techniques
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 coating 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;
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;
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:
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:
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:
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;
f. Substrate orientation;
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.
2E018 ``Technology'' for the ``use'' of equipment controlled by 2B018.
License Requirements
Reason for Control: NS, MT, AT
[[Page 12975]]
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to ``technology'' for MT Column 1.
equipment controlled by 2B018 for MT
reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2E101 ``Technology'' according to the General Technology Note for the
``use'' of items or ``software'' controlled by 2B004, 2B104, 2B115,
2B116 or 2D101.
License Requirements
Reason for Control: MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
NP applies to 2B004 and 2B104.a........ NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2E201 ``Technology'' according to the General Technology Note for the
``use'' of items or ``software'' controlled by 2A225, 2A226, 2B001,
2B006, 2B007, 2B204, 2B207, 2B215, 2B225 to 2B232 or 2D201 for NP
reasons.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2E290 ``Technology'' according to the General Technology Note for the
``use'' of items controlled by 2A290, 2A291, 2A292, 2A293, 2A294, 29295
and 2B290.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to ``technology'' for NP Column 1.
equipment controlled by 2A291 to 2A295
or 2B290.
NP applies to ``technology'' for NP Column 2.
equipment controlled by 2A290.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2E301 ``Technology'' for ``use'' of items controlled by 2B350, 2B351
and 2B352.
License Requirements
Reason for Control: CB, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CB applies to entire entry............. CB Column 3.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The lists of items controlled are contained in the ECCN
headings.
2E993 ``Technology'' for the ``use'' of equipment controlled by 2B991,
2B992, 2B993, or 2B994.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
2E994 ``Technology'' for the ``use'' of portable electric generators
controlled by 2A994.
License Requirements
Reason for Control: AT
Control(s): AT applies to entire entry. A license is required
for items controlled by this entry to Cuba, Iran, Libya, 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.
Note: Exports from the U.S. and transshipments to Iran must be
licensed by the Department of Treasury, Office of Foreign Assets
Control. (See Sec. 742.8 and Sec. 746.7 of the EAR for additional
information on this requirement.)
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
EAR99 Items subject to the EAR that are not elsewhere specified in
this CCL Category or in any other category in the CCL are designated by
the number EAR99.
Advisory Notes for Category 2
Advisory Note 1: Licenses are likely to be approved, as
administrative exceptions, to satisfactory end-users in the People's
Republic of China of machine tools for milling controlled by
2B001.c.1 to civil end-users other than nuclear and aerospace,
provided that they are not controlled by 2B001.c.1.b.1, c.1.b.4,
c.1.b.5, or c.1.b.6.
Advisory Note 2: Licenses are likely to be approved, as
administrative exceptions, to satisfactory end-users in Country
Group D:1 of equipment controlled by 2B006.b.1 to civil end-users
not engaged in aerospace or nuclear activities.
Category 3--Electronics Design, Development and Production
A. Equipment, Assemblies and Components
Note 1: The control status of equipment, devices and components
described in Category 3A, other than those described in 3A001.a.3 to
a.10, or 3A001.a.12, that are specially designed for or that have
the same functional characteristics as other equipment are
determined by the control status of the other equipment.
Note 2: The control status of integrated circuits described in
3A001.a.3 to 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 a.9 or 3A001.a.12.
If the
[[Page 12976]]
integrated circuit is a silicon-based ``microcomputer microcircuit''
or a microcontroller microcircuit described in 3A001.a.3 having an
operand (data) word length of 8 bits or less, the control status of
the integrated circuit is determined in 3A001.a.3.
3A001 Electronic devices and components.
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to 3A001.a.1.a.............. MT Column 1.
NP applies to 3A001.e.5................ NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1500: 3A001.c; $3000: 3A001.b.1, b.2, b.3, .d, .e and .f;
$5000: 3A001.a, and .b.4 to b.7
GBS: Yes, except 3A001.a.1, b.1, b.3 to b.7, c to f
CIV: Yes, except 3A001.a.1, a.2, a.5, a.6, a.9, a.10, and a.12,
.b, .c, .d, .e, and .f
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items: a. General purpose integrated circuits, as follows:
Notes: 1. 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.
2. 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 either of the following:
a.1.a. A total dose of 5 x 10\5\ Rads (Si), or higher; or
a.1.b. A dose rate upset of 5 x 10\8\ Rads (Si)/s or higher;
a.2. Integrated circuits described in 3A00l.a.3 to a.10 or
3A00l.a.12, as follow:
a.2.a. Rated for operation at an ambient temperature above 398 K
(+125 deg. C);
a.2.b. Rated for operation at an ambient temperature below 218 K
(-55 deg. C); or
a.2.c. Rated for operation over the entire ambient temperature
range from 218 K (-55 deg. C) to 398 K (+125 deg. C);
Note: 3A00l.a.2 does not apply to integrated circuits for civil
automobile or railway train applications.
a.3. ``Microprocessor microcircuits'', ``microcomputer
microcircuits'' and microcontroller microcircuits, having any of the
following:
Note: 3A00l.a.3 includes digital signal processors, digital
array processors and digital coprocessors.
a.3.a An arithmetic logic unit with an access width of 32 bit or
more and a ``composite theoretical performance'' (``CTP'') of 80
million theoretical operations per second (Mtops) or more;
a.3.b. Manufactured from a compound semiconductor and operating
a clock frequency exceeding 40 MHz; or
a.3.c. More than one data or instruction bus or serial
communication port for external interconnection in a parallel
processor with a transfer rate exceeding 2.5 Mbyte/s;
a.4. Electrically erasable programmable read-only memories
(EEPROMs), static random-access memories (SRAMs), and storage
integrated circuits manufactured from a compound semiconductor, as
follows:
a.4.a. Electrically erasable programmable read-only memories
(EEPROMs) with a storage capacity:
a.4.a.1. Exceeding 16 Mbit per package for flash memory types;
or
a.4.a.2. Exceeding either of the following limits for all other
EEPROM types:
a.4.a.2.a. 4 Mbit per package; or
a.4.a.2.b. 1 Mbit per package and having a maximum access time
of less than 80 ns;
a.4.b. Static random-access memories (SRAMs) with a storage
capacity:
a.4.b.1. Exceeding 4 Mbit per package; or
b.4.b.2. Exceeding 1 Mbit per package and having a maximum
access time of less than 20 ns;
a.4.c. 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 bits or more, but less than 12 bits,
with a total conversion time to maximum resolution of less than 10
ns;
a.5.a.2. A resolution of 12 bits with a total conversion time to
maximum resolution of less than 200 ns; or
a.5.a.3. A resolution of more than 12 bits with a total
conversion time to maximum resolution of less than 2 microseconds;
a.5.b. Digital-to-analog converters with a resolution of 12 bits
or more, and a ``settling time'' of less than 10 ns;
a.6. Electro-optical or ``optical integrated circuits'' for
``signal processing'' having all of the following:
a.6.a. One or more internal ``laser'' diodes;
a.6.b. One or more internal light detecting elements; and
a.6.c. Optical waveguides;
a.7. Field programmable gate arrays having either of the
following:
a.7.a. An equivalent usable gate count of more than 30,000 (2
input gates); or
a.7.b. A typical ``basic gate propagation delay time'' of less
than 0.4 ns;
a.8. Field programmable logic arrays having either of the
following:
a.8.a. An equivalent usable gate count of more than 30,000 (2
input gates); or
b. A toggle frequency exceeding 133 MHz;
a.9. Neural network integrated circuits;
a.10. 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:
a.10.a. More than 144 terminals;
a.10.b. A typical ``basic gate propagation delay time'' of less
than 0.4 ns; or
a.10.c. An operating frequency exceeding 3 GHz;
a.11. Digital integrated circuits, other than those described in
3A001.a.3 to a.l0 or 3A001.a.12, based upon any compound
semiconductor and having either of the following:
a.11.a. An equivalent gate count of more than 300 (2 input
gates); or
a.11.b. A toggle frequency exceeding 1.2 GHz;
a.12. Fast Fourier Transform (FFT) processors having any of the
following characteristics:
a.12.a. A rated execution time for a 1,024 point complex FFT of
less than 1 ms;
a.12.b. A rated execution time for an N-point complex FFT of
other than 1,024 points of less than N log2 N/10,240 ms, where
N is the number of points; or
a.12.c. A butterfly throughput of more than 5.12 MHz;
b. Microwave or millimeter wave devices:
b.1. Electronic vacuum tubes and cathodes, as follows:
(Frequency agile magnetron tubes are subject to the export
licensing authority of the U.S. Department of State, Office of
Defense Trade Controls. See 22 CFR part 121, Category XI.)
Note: 3A001.b.1 does not control tubes designed or rated to
operate in the Standard Civil Telecommunications Bands at
frequencies not exceeding 31 GHz.
b.1.a. Traveling wave tubes, pulsed or continuous wave, as
follows:
b.1.a.1 Operating at frequencies higher than 31 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 an
``instantaneous 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; or
b.1.a.4.c. ``Space qualified'';
b.1.b. Crossed-field amplifier tubes with a gain of more than 17
dB;
b.1.c. Impregnated cathodes for electronic tubes, with either of
the following:
b.1.c.1. Having a turn on time to rated emission of less than 3
seconds; or
b.1.c.2. Producing a continuous emission current density at
rated operating conditions exceeding 5 A/cm2;
b.2. Microwave integrated circuits or modules containing
``monolithic integrated circuits'' operating at frequencies
exceeding 3 GHz;
Note: 3A001.b.2 does not control circuits or modules for
equipment designed or rated to operate in the Standard Civil
[[Page 12977]]
Telecommunications Bands at frequencies not exceeding 31 GHz.
b.3. Microwave transistors rated for operation at frequencies
exceeding 31 GHz;
b.4. Microwave solid state amplifiers, as follows:
b.4.a. Operating at frequencies exceeding 10.5 GHz and having an
``instantaneous bandwidth'' of more than half an octave; or
b.4.b. Operating at frequencies exceeding 31 GHz;
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 (fmax/fmin) in less than 10
microseconds with either:
b.5.a. A band-pass bandwidth of more than 0.5 % of center
frequency; or
b.5.b. A band-stop bandwidth of less than 0.5 percent of center
frequency;
b.6. Microwave assemblies capable of operating at frequencies
exceeding 31 GHz;
b.7. Mixers and converters designed to extend the frequency
range of equipment described in 3A002.c, 3A002.e or 3A002.f beyond
the control limits stated therein;
c. Acoustic wave devices, as follows, and specially designed
components therefor:
c.1. Surface acoustic wave and surface skimming (shallow bulk)
acoustic wave devices (i.e., ``signal processing'' devices employing
elastic waves in materials), having any of the following:
c.1.a. A carrier frequency exceeding 2.5 GHz;
c.1.b. A carrier frequency 2.5 GHz or less, and:
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 microseconds and bandwidth in MHz) of more than 100; or
c.1.b.3. A dispersive delay of more than 10 microseconds; or
c.1.c. A carrier frequency exceeding 1 GHz and a bandwidth of
250 MHz or more;
c.2. Bulk (volume) acoustic wave devices (i.e., ``signal
processing'' devices employing elastic waves) that permit the direct
processing of signals at frequencies exceeding 1 GHz;
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 or 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. Electromagnetic amplification:
d.1.a. At frequencies equal to or less than 31 GHz with a noise
figure of less than 0.5 dB; or
d.1.b. At frequencies exceeding 31 GHz;
d.2. 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
10-14 J; or
d.3. Frequency selection at all frequencies using resonant
circuits with Q-values exceeding 10,000;
e. High energy devices, as follows:
e.1. Batteries, as follows:
Note: 3A001.e.1 does not control batteries with volumes equal to
or less than 27 cm3 (e.g., standard C-cells or R 14 batteries).
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 deg. C) to above 343 K (70 deg. 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 deg. C) to above 333 K (60 deg. C);
Technical Note: 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/m2 at an operating
temperature of 301 K (28 deg. C) under a tungsten illumination of 1
kW/m2 at 2,800 K (2,527 deg. C);
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; and
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; and
e.2.b.4. A charge/discharge cycle life equal to or more than
10,000;
e.3. ``Superconductive'' electromagnets or solenoids specially
designed to be fully charged or discharged in less than one second,
having all of the following:
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; and
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/
mm2;
Note: 3A001.e.3. does not control ``superconductive''
electromagnets or solenoids specially designed for Magnetic
Resonance Imaging (MRI) medical equipment.
e.4. 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:
e.4.a. Resonant operating frequencies exceeding 1 MHz;
e.4.b. A stored energy density of 1 MJ/m 3 or more; and
3.4.c. A discharge time of less than 1 ms; e.5. Flash discharge
type X-ray systems, and tubes therefor, having all of the following:
e.5.a. A peak power exceeding 500 MW;
e.5.b. An output voltage exceeding 500 kV; and
e.5.c. A pulse width of less than 0.2 microsecond;
f. Rotary input type shaft absolute position encoders having
either of the following:
f.1. A resolution of better than 1 part in 265,000 (18 bit
resolution) of full scale; or
f.2. An accuracy better than 2.5 seconds of arc.
3A002 General purpose electronic equipment.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000: 3A002.a, .e, .f, .g; $5000: 3A002.b to d, and
3A002.h
GBS: Yes for 3A002.a.1. 3A002.h and a.2, .b, d.2, as described
in Advisory Note 1 to Category 3
CIV: Yes for 3A002.h, and a.1, a.2, .b, d.2, as described in
Advisory Note 1 to Category 3
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
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 (e.g., using a
high density digital recording (HDDR) module), having any of the
following:
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 Inter Range Instrumentation Group (IRIG) or
Electronic Industries Association (EIA) documents, of less than #0.1
microsecond;
a.2. Digital video magnetic tape recorders having a maximum
digital interface transfer rate exceeding 180 Mbit/s, except those
specially designed for television recording using a signal format as
standardized or recommended by the International Radio Consultative
Committee (CCIR) or the International Technical Commission (IEC) for
civil television applications;
[[Page 12978]]
a.3. Digital instrumentation magnetic tape data recorders
employing helical scan techniques or fixed head techniques, having
either of the following characteristics:
a.3.a. A maximum digital interface transfer rate exceeding 175
Mbits/s; or
a.3. b. ``Space qualified'';
Note: 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, with 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 with both of
the following characteristics:
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 Gbits/s or more;
Technical Note: For those instruments with a parallel bus
architecture, the continuous throughput rates 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.
b. ``Frequency synthesizer'' ``electronic assemblies'' having a
``frequency switching time'' from one selected frequency to another
of less than 1 ms;
c. ``Signal analyzers'', as follows:
c.1. Capable of analyzing frequencies exceeding 31 GHz;
c.2. ``Dynamic signal analyzers'' with a ``real-time bandwidth''
exceeding 25.6 kHz, except those 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 GHz;
d.2. A ``frequency switching time'' from one selected frequency
to another of less than 1 ms; or
d.3. A single sideband (SSB) phase noise better than
-(126+20log10F-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;
Note: 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 31 GHz;
Note: 3A002.e does not control ``swept frequency network
analyzers'' with a maximum operating frequency not exceeding 40 GHz
and that do not contain a data bus for remote control interfacing.
f. Microwave test receivers with both of the following:
f.1. A maximum operating frequency exceeding 31 GHz; and
f.2. Capable of measuring amplitude and phase simultaneously;
g. Atomic frequency standards having either of the following
characteristics:
g.1. Long term stability (aging) less (better) than 1 x 10
-11/month; or
g.2. ``Space qualified'';
Note: 3A002.g.1 does not control non-``space qualified''
rubidium standards.
h. Emulators for microcircuits controlled by 3A001.a.3 or
3A001.a.9.
Note: 3A002.h does not control emulators designed for a
``family'' that contains at least one device not controlled by
3A001.a.3 or 3A001.a.9.
3A101 Electronic equipment, devices and components, other than those
specified in 3A001.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5,000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: The corresponding EU list number controls
analog-to-digital converters, usable in ``missiles'', designed to
meet military specifications for ruggedized equipment in 1A101.a.
These items are not controlled by this CCL entry. These items are
subject to the export licensing authority of the U.S. Departement of
State, Office of Defense Trade Controls (See 22 CFR 121.16, Item
14--Category II).
Related Definitions: N/A
Items:
a. Reserved.
b. Accelerators capable of delivering electromagnetic radiation
produced by bremsstrahlung from accelerated electrons of 2Mev or
greater, and systems containing those accelerators, excluding that
equipment specially designed for medical purposes.
3A201 Electronic components, other than those specified in 3A001.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls:
Related Definition: This entry does not control magnets that are
specially designed for and exported as parts of medical nuclear
magnetic resonance (NMR) imaging systems. Such parts may be exported
in separate shipments from different sources, provided that the
related export control documents clearly specify that the parts are
for medical NMR imaging systems that are being exported.
Items:
a. Capacitors with the following characteristics:
a.1. Voltage rating greater than 1.4 kV, energy storage greater
than 10J, capacitance greater than 500 nF and series inductance less
than 50 nH; or
a.2. Voltage rating greater than 750 V, capacitance greater than
250 nF and series inductance less than 10 nH;
b. Superconducting solenoidal electromagnets with all of the
following characteristics:
b.1. Capable of creating magnetic fields of more than 2 teslas
(20 kilogauss);
b.2. With an L/D ratio (length divided by inner diameter)
greater than 2;
b.3. With an inner diameter of more than 300 mm; and
b.4. With a magnetic field uniform to better than 1% over the
central 50% of the inner volume;
c. Flash X-ray generators or pulsed electron accelerators with
peak energy of 500 keV or greater, as follows; except: Accelerators
that are component parts of devices designed for purposes other than
electron beam or X-ray radiation (electron microscopy, for example)
and those designed for medical purposes:
c.1. Having an accelerator peak electron energy of 500 keV or
greater but less than 25 MeV and with a figure of merit (K) of 0.25
or greater, where K is defined as: K=1.7 x 103V2.65Q,
where V is the peak electron energy in million electron volts and Q
is the total accelerated charge in coulombs if the accelerator beam
pulse duration is less than or equal to 1 microsecond; if the
accelerator beam pulse duration is greater than 1 microsecond, Q is
the maximum accelerated charge in 1 microsecond [Q equals the
integral of i with respect to t, over the lesser of 1 microsecond or
the time duration of the beam pulse (Q=[integral] idt), where i is
beam current in amperes and t is time in seconds]; or
c.2. Having an accelerator peak electron energy of 25 MeV or
greater and a peak power greater than 50 MW. [Peak power=(peak
potential in volts) x (peak beam current in amperes)].
Technical Notes: a. Time duration of the beam pulse - In
machines, based on microwave accelerating cavities, the time
duration of the beam pulse is the lesser of 1 microsecond or the
duration of the bunched beam packet resulting from one microwave
modulator pulse.
b. Peak beam current--In machines based on microwave
accelerating cavities, the peak beam current is the average current
in the time duration of a bunched beam packet.
[[Page 12979]]
3A202 Oscilloscopes and transient recorders other than those
controlled by 3A002.a.5, and specially designed components therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: Specially designed components specified in
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.
Items:
a. Non-modular analog oscilloscopes having a bandwidth of 1 GHz
or greater;
Technical Note: ``Bandwidth'' is defined as the band of
frequencies over which the deflection on the cathode ray tube does
not fall below 70.7% of that at the maximum point measured with a
constant input voltage to the oscilloscope amplifier.
b. Modular analog oscilloscope systems having either of the
following characteristics:
b.1. A mainframe with a bandwidth of 1 GHz or greater; or
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 one-shot input signals 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.
3A225 Frequency changers (also known as converters or inverters) or
generators, having all of the following characteristics.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: Frequency changers (also known as converters
or inverters) especially designed or prepared to supply motor
stators and having the characteristics described in 3A225.b and .d,
together with a total harmonic distortion of less than 2 percent and
an efficiency of greater than 80 percent are subject to the export
licensing authority of the Nuclear Regulatory Commission. (See 10
CFR part 110.)
Related Definition: Motor stators are especially designed or
prepared ring-shaped stators for high-speed multiphase AC hysteresis
(or reluctance) motors for synchronous operation within a vacuum in
the frequency range of 600 Hz to 2,000 Hz, and a power range of 50
VA to 1,000 VA. The stators consist of multiphase windings on a
laminated low-loss iron core comprising thin layers typically to 2.0
mm (.008 in) thick or less.
Items:
a. A multisphase output capable of providing power of 40 W or
more;
b. Capable of operating in the frequency range between 600 and
2,000 Hz;
c. Total harmonic distortion below 10%; and
d. Frequency control better than 0.1%.
3A226 Direct current high-power supplies capable of continuously
producing, over a time period of 8 hours, 100 V or greater with a
current output of 500 A or greater and with a current or voltage
regulation better than 0.1%.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3A227 High-voltage direct current power supplies capable of
continuously producing, over a time period of 8 hours, 20,000 V or
greater with a current output of 1 A or greater and with a current or
voltage regulation better than 0.1%.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3A228 Switching devices.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Cold-cathode tubes (including gas krytron tubes and vacuum
sprytron tubes), whether gas filled or not, operating similarly to a
spark gap, containing three or more electrodes, and having all of
the following characteristics:
a.1. Anode peak voltage rating of 2,500 V or more;
a.2. Anode peak current rating of 100 A or more; and
a.3. Anode delay time of 10 microseconds or less;
b. Triggered spark-gaps having an anode delay time of 15
microseconds or less and 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 2,000 V;
c.2. Anode peak current rating of 500 A or more; and
c.3. Turn-on time of 1 microseconds or less.
3A229 Firing sets and equivalent high-current pulse generators (for
detonators controlled by 3A232).
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
[[Page 12980]]
a. Explosive detonator firing sets designed to drive multiple
detonators of the type controlled by ECCN 3A232;
b. Modular electrical pulse generators (pulsers) designed for
portable, mobile, or ruggedized use (including xenon flash-lamp
drivers) having all the following characteristics:
b.1. Capable of delivering their energy in less than 15
microseconds;
b.2. Having an output greater than 100 A; and
b.3. Having a ``rise time'' of less than 10 microseconds into
loads of less than 40 ohms.
Technical Note: ``Rise time'' is defined as the time interval
from 10% to 90% current amplitude when driving a resistive load.
b.4. Enclosed in a dust-tight enclosure;
b.5. No dimension greater than 254 mm (10 in.);
b.6. Weight less than 25 kg (55 lb.); and
b.7. Specified for use over an extended temperature range (223 K
[-50 deg. C] to 373 K [100 deg. C]) or specified as suitable for
aerospace use.
3A230 High-speed pulse generators with output voltages greater than 6
volts into a less than 55 ohm resistive load, and with pulse transition
times less than 500 picoseconds (defined as the time interval between
10% and 90% voltage amplitude).
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3A231 Neutron generator systems, including tubes, designed for
operation without an external vacuum system, and utilizing
electrostatic acceleration to induce a tritium-deuterium nuclear
reaction.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number, parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3A232 Detonators and multipoint initiation systems (exploding bridge
wire, slapper, etc.).
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definition: Detonators using only primary explosives,
such as lead azide, are not controlled by this entry.
Items:
a. Electrically driven explosive detonators, as follows:
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 expolsive surface (over greater
than 5,000 mm\2\) from a single firing signal (with an initiation
timing spread over the surface of less than 2.5 microseconds).
Technical Note: The detonators controlled by 3A232 utilize a
small electrical conductor (bridge, bridgewire, 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 (pentaerythritoltetranitrate). In slapper detonators,
the explosive vaporization of the electrical conductor drives a
flyer or slapper across a gap, and the impact of the slapper on an
explosive starts a chemical detonation. The slapper in some designs
is driven by magnetic force. The term exploding foil detonator may
refer to either an EB or a slapper-type detonator. Also, the word
initiator is sometimes used in place of the word detonator.
3A233 Mass spectrometers capable of measuring ions of 230 atomic mass
units or greater and having a resolution of better than 2 parts in 230,
and ion sources therefor.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: Specially designed or prepared magnetic or
quadruple mass spectrometers that have the following characteristics
and are capable of taking on-line samples of feed, product, or tails
from UF6 gas streams are subject to the export licensing
authority of the Nuclear Regulatory Commission. (See 10 CFR part
110.): (a) Unit resolution for mass greater than 320; (b) Ion
sources that are constructed of or lined with nichrome or that are
monel or nickel-plated; (c) Electron bombardment ionization sources;
(d) Having a collector system suitable for isotopic analysis.
Related Definitions: N/A
Items:
a. Inductively coupled plasma mass spectrometers (ICP/MS);
b. Glow discharge mass spectrometers (GDMS);
c. Thermal ionization mass spectrometers (TIMS);
d. Electron bombardment mass spectrometers that have a source
chamber constructed from, or lined with or plated with materials
resistent to UF6;
e. Molecular beam mass spectrometers that:
e.1. Have a source chamber constructed from, or lined with or
plated with stainless steel or molybdenum and have a cold trap
capable of cooling to 193 K (-80 deg. C) or less; or
e.2. Have a source chamber constructed from, or lined with or
plated with materials resistant to UF6; or
f. Mass spectrometers equipped with a microfluorination ion
source designed for use with actinides or actinide fluorides.
3A980 Voice print identification and analysis equipment and parts,
n.e.s.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
[[Page 12981]]
3A981 Polygraphs (except biomedical recorders designed for use in
medical facilities for monitoring biological and neurophysical
responses); fingerprint analyzers, cameras and equipment, n.e.s.;
automated fingerprint and identification retrieval systems, n.e.s.;
psychological stress analysis equipment; electronic monitoring
restraint devices; and specially designed parts and accessories, n.e.s.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3A992 Electronic devices and components not controlled by 3A001.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Microprocessor microcircuits'', ``microcomputer
microcircuits'', and microcontroller microcircuits having a clock
frequency exceeding 25 MHz;
b. Storage integrated circuits not controlled by 3A001, as
follows:
b.1. Electrical erasable programmable read-only memories
(EEPROMs) with a storage capacity;
b.1.a. Exceeding 1 Mbit per package; or
b.1.b. 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; or
b.2.b. Exceeding 256 kbit per package and a maximum access time
of less than 25 ns;
c. Field programmable logic arrays not controlled by 3A001
having either of the following:
c.1. An equivalent gate count of more than 5,000 (2 input
gates); or
c.2. A toggle frequency exceeding 100 MHz;
d. Travelling wave tubes, pulsed or continuous wave, not
controlled by 3A001, as follows:
d.1. Coupled cavity tubes, or derivatives thereof;
d.2. Helix tubes, or derivatives thereof, with any of the
following:
d.a.1. An ``instantaneous bandwidth'' of half an octave or more;
and
d.a.2. The product of the rated average output power (expressed
in kW) and the maximum operating frequency (expressed in GHz) of
more than 0.2;
d.2.b.1 An ``instantaneous bandwidth'' of less than half an
octave; and
d.2.b.2. The product of the rated average output power
(expressed in kW) and the maximum operating frequency (expressed in
GHz) of more than 0.4;
e. Flexible waveguides designed for use at frequencies exceeding
40 GHz;
f. Surface acoustic wave and surface skimming (shallow bulk)
acoustic wave devices (i.e., ``signal processing'' devices employing
elastic waves in materials), not controlled by 3A001, having either
of the following:
f.1. A carrier frequency exceeding 1 GHz; or
f.2. A carrier frequency of 1 GHz or less, and
f.2.a. A frequency side-lobe rejection exceeding 55 dB;
f.2.b. A product of the maximum delay time and bandwidth (time
in microseconds and bandwidth in MHz) of more than 100; or
f.2.c. A dispersive delay of more than 10 microseconds.
g. Batteries not controlled by 3A001, as follows:
Note: 3A992.g does not control batteries with volumes equal to
or less than 26 cm3 (e.g., standard C-cells or UM-2 batteries).
g.1. 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 deg. C) to above 343 K (70 deg. C);
g.2. 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 deg. C) to above 333 K (60 deg. C);
Technical Note: 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.
g.3. ``Space qualified'' or radiation hardened photovoltaic
arrays with a specific power exceeding 160 W/m\2\ at an operating
temperature of 301 K (28 deg. C) under a tungsten illumination of 1
kW/m\2\ at 2,800 K (2,527 deg. C);
h. ``Superconductive'' electromagnets or solenoids specially
designed to be fully charged or discharged in less than one minute,
not controlled by 3A001, having all of the following:
Note: 3A992.h does not control ``superconductive''
electromagnets or solenoids designed for Magnetic Resonance Imaging
(MRI) medical equipment.
h.1. Maximum energy delivered during the discharge divided by
the duration of the discharge of more than 500 kJ per minute;
h.2. Inner diameter of the current carrying windings of more
than 250 mm; and
h.3. Rated for a magnetic induction of more than 8T or ``overall
current density'' in the winding of more than 300 A/mm \2\.
3A993 Electronic test equipment in Category 3A n.e.s.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $1000 for Syria only
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3A994 General purpose electronic equipment not controlled by 3A002.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Digital instrumentation magnetic tape data recorders not
controlled by 3A002 having any of the following characteristics;
a.1. A maximum digital interface transfer rate exceeding 60
Mbit/s and employing helical scan techniques;
a.2. A maximum digital interface transfer rate exceeding 120
Mbit/s and employing fixed head techniques; or
a.3. ``Space qualified'';
b. Equipment, not controlled by 3A002, 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;
c. Hydrogen/hydrogen-isotope thyratrons of ceramic-metal
construction and rate for a peak current of 500A or more.
[[Page 12982]]
B. TEST, INSPECTION AND PRODUCTION EQUIPMENT
3B001 ``Stored program controlled'' equipment for epitaxial growth.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: Yes, except 3B001 .b and .c
CIV: Yes for equipment controlled by 3B001.a as described in
Advisory Note 1.d
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Capable of producing a layer thickness uniform to less than
2.5% across a distance of 75 mm or more;
b. Metal organic chemical vapour deposition (MOCVD) reactors
specially designed for compound semiconductor crystal growth by the
chemical reaction between materials controlled by 3C003 or 3C004;
c. Molecular beam epitaxial growth equipment using gas sources.
3B002 ``Stored program controlled'' equipment designed for ion
implanation, having the following characteristics.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: Yes
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. An accelerating voltage exceeding 200 keV;
b. Specially designed and optimized to operate at accelerating
voltages of less than 10 keV;
c. Direct write capability; or
d. Capable of high energy oxygen implant into a heated
semiconductor material ``substrate''.
3B003 ``Stored program controlled'' anisotropic plasma dry etching
equipment.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: Yes
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. With cassette-to-cassette operation and load-locks, and
having either of the following:
a.1. Magnetic confinement; or
a.1. Electron cyclotron resonance (ECR);
b. Specially designed for equipment controlled by 3B005 and
having either of the following:
b.1. Magnetic confinement; or
b.2. Electron cyclotron resonance (ECR).
3B004 ``Stored program controlled'' plasma enchanced CVD equipment.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: Yes
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. With cassette-to-cassette operation and load-locks, and
having either of the following:
a.1. Magnetic confinement; or
a.2. Electron cyclotron resonance (ECR);
b. Specially designed for equipment controlled by 3B005 and
having either of the following:
b.1. Magnetic confinement; or
b.2. Electron cyclotron resonance (ECR);
3B005 ``Stored program controlled'' automatic loading multi-chamber
central wafer handling systems, having interfaces for wafer input and
output, to which more than two pieces of semiconductor processing
equipment are to be connected, to form an integrated system in a vacuum
environment for sequential multiple wafer processing.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: Yes, except when connected with equipment controlled by
3B001.b and .c or 3B006
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: This entry does not control automatic
robotic wafer handling systems not designed to operate in a vacuum
environment.
Items: The list of items controlled is contained in the ECCN
heading.
3B006 ``Stored program controlled'' lithography equipment.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Align and expose step and repeat equipment for wafer
processing using photo-optical or X-ray methods, having either of
the following:
a.1. A light source wavelength shorter than 400 nm;
a.2. Capable of producing a pattern with a minimum resolvable
feature size of 0.7 micrometers or less when calculated by the
following formula:
[GRAPHIC] [TIFF OMITTED] TR25MR96.025
[[Page 12983]]
where:
MRF is the minimum resolvable feature size; the K factor = 0.7; and
wavlength is the exposure light source wavelength;
b. Equipment specially designed for mask making or semiconductor
device processing using deflected focussed electron beam, ion beam
or ``laser'' beam, with any of the following:
b.1. A spot size smaller than 0.2 micrometer;
b.2. Capable of producing a pattern with a feature size of less
than 1 micrometer; or
b.3. An overlay accuracy of better than 0.20
micrometer (3 sigma).
3B007 Masks or reticles.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: Yes
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. For integrated circuits controlled by 3A001;
b. Multi-layer masks with a phase shift layer.
3B008 ``Stored program controlled'' test equipment, specially designed
for testing semiconductor devices and unencapsulated dice.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $500
GBS: Yes
CIV: N/A
List of Items Controlled
Unit: Number
Related Controls: N/A
Related Definitions: N/A
Items:
a. For testing S-parameters of transistor devices at frequencies
exceeding 31 GHz;
b. For testing integrated circuits, capable of performing
functional (truth table) testing at a pattern rate of more than 40
MHz;
Note: 3B008.b does not control test equipment specially designed
for testing:
1. ``Electronic assemblies'' or a class of ``electronic
assemblies'' for home or entertainment applications;
2. Non-controlled electronic components, ``electronic
assemblies'' or integrated circuits.
c. For testing microwave integrated circuits at frequencies
exceeding 3 GHz;
Note: 3B008.c does not control test equipment specially designed
for testing microwave integrated circuits operating solely in the
Standard Civil Telecommunication Bands at frequencies not exceeding
31 GHz.
d. Electron beam systems designed for operation at or below 3
keV, or ``laser'' beam systems, for the non-contactive probing of
powered-up semiconductor devices, with both of the following:
d.1. Stroboscopic capability with either beam-blanking or
detector strobing; and
d.2. An electron spectrometer for voltage measurement with a
resolution of less than 0.5 V.
Note: 3B008.d does not control scanning electron microscopes,
except when specially designed and instrumented for the non-
contactive probing of powered-up semiconductor devices.
3B991 Equipment not controlled by 3B001 for the manufacture or testing
of electronic components and materials, and specially designed
components and accessories therefor.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Equipment specially designed for the manufacture or testing
of electron tubes, optical elements and specially designed
components therefor controlled by 3A001;
b. Equipment specially designed for the manufacture or testing
of semiconductor devices, integrated circuits and ``assemblies'', as
follows, and systems incorporating or having the characteristics of
such equipment:
Note: 3B991.b also controls equipment used or modified for use
in the manufacture or testing of other devices, such as imaging
devices, electro-optical devices, acoustic-wave 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:
Note: 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:
Note: 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
m2 per minute;
b.1.c.2. ``Stored programme 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 x 105 Pa;
or
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 layer thickness uniformity
across the wafer of equal to or better than +3.5%;
b.1.d.2. Rotation of individual wafers during processing; or
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. Accelerating voltage for more than 200 keV; or
b.1.g.3. 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 (e.g.,
plasma), as follows:
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; or
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; or
b.1.h.2.c. Cassette-to-cassette and load locks wafer handling;
Notes: 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, e.g., RF power, temperature, etch gas species, flow
rates.
[[Page 12984]]
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,
e.g., RF power or end point, can be independently determined for
each individual wafer.
b.1.i. ``Chemical vapor deposition'' (CVD) equipment, e.g.,
plasma-enhanced CVD (PECVD) or photo-enhanced CVD, for semiconductor
device manufacturing, having either of the following capabilities,
for deposition of oxides, nitrides, metals or polysilicon:
b.1.i.1. ``Chemical vapor deposition'' equipment operating below
105 Pa; or
b.1.i.2. PECVD equipment operating either below 60 Pa (450
millitorr) or having automatic cassette-to-cassette and load lock
wafer handling;
Note: 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;
or
b.1.j.5. Target-to-beam position feedback control precision of 1
micrometer or finer;
Note: 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; or
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);
Note: 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; or
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:
Note: 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; or
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; and
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 (e.g., chromium, silicon, molybdenum)
coated ``substrates'' (e.g., glass, quartz, sapphire) for the
preparation of masks having dimensions exceeding 125 mm x 125 mm; or
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 x 100 mm, or capable of
producing a single exposure larger than 6 mm x 6 mm in the image
(i.e., focal) plane, or capable of producing line widths of less
than 2.5 micrometer in the photoresist on the ``substrate'';
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; or
b.2.d.3. Equipment or holders for altering masks or reticles or
adding pellicles to remove defects;
Note: 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; and
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;
Note: 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 methods, including both projection image transfer
equipment and step and repeat equipment, capable of performing any
of the following functions:
Note: 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); or
b.2.f.3. Machine-to-machine overlay no better than + 0.3
micrometer;
b.2.g. Electron beam, ion beam or X-ray equipment for projection
image transfer capable of producing patterns less than 2.5
micrometer;
Note: For focussed, deflected-beam systems (direct write
systems), see 3B91.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. ``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;
Note: 3B991.b.3 does not control general purpose scanning
electron microscopes, except when specially designed and
instrumented for automatic pattern inspection.
b.4. Specially designed ``stored program controlled'' measuring
and analysis equipment, as follows:
b.4.a. Specially designed for the measurement of oxygen or
carbon content in semiconductor materials;
b.4.b. Equipment for line width measurement with a resolution of
1 micrometer or finer;
b.4.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.5. Equipment for the assembly of integrated circuits, as
follows:
b.5.a. ``Stored program controlled'' die bonders having all of
the following characteristics:
b.5.a.1. Specially designed for ``hybrid integrated circuits'';
b.5.a.2. X-Y stage positioning travel exceeding 37.5 x 37.5 mm;
and
b.5.a.3. Placement accuracy in the X-Y plane of finer than + 10
micrometer;
b.5.b. ``Stored program controlled'' equipment for producing
multiple bonds in a single operation (e.g., beam lead bonders, chip
carrier bonders, tape bonders);
b.5.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.
Note: 3B991.b.5. does not control general purpose resistance
type spot welders.
b.6. ``Stored program controlled'' wafer probing equipment
having any of the following characteristics:
b.6.a. Positioning accuracy finer than 3.5 micrometer;
b.6.b. Capable of testing devices having more than 68 terminals;
or
b.6.c. Capable of testing at a frequency exceeding 1 GHz;
[[Page 12985]]
b.7. Test equipment as follows:
b.7.a. ``Stored program controlled'' equipment specially
designed for testing discrete semiconductor devices and
unencapsulated dice, capable of testing at frequencies exceeding 18
GHz;
Technical Note: Discrete semiconductor devices include
photocells and solar cells.
b.7.b. ``Stored program controlled'' equipment specially
designed for testing integrated circuits and ``assemblies'' thereof,
capable of functional testing:
b.7.b.1. At a pattern rate exceeding 20 MHz; or
b.7.b.2. At a pattern rate exceeding 10 MHz but not exceeding 20
MHz and capable of testing packages of more than 68 terminals;
Note: 3B991.b.7.b. does not control equipment specially designed
for testing integrated circuits not controlled by 3A001 or 3A991.
Notes: 1. 3B991.b.7.b does not control test equipment specially
designed for testing ``assemblies'' or a class of ``assemblies'' for
home and entertainment applications.
2. 3B991.b.7.b does not control test equipment specially
designed for testing 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''.
b.7.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.7.c.1. Using scanning light spot diameters of less than 0.12
mm;
b.7.c.2. Designed for measuring photosensitive performance
parameters and for evaluating frequency response, modulation
transfer function, uniformity of responsivity or noise; or
b.7.c.3. Designed for evaluating arrays capable of creating
images with more than 32 x 32 line elements;
b.8. 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 3 and filter materials therefor;
b.9. Electron beam test systems, capable of operating at or
below 3,000 eV, for non-contactive probing of powered-up
semiconductor devices having any of the following:
b.9.a. Stroboscopic capability with either beam blanking or
detector strobing;
b.9.b. An electron spectrometer for voltage measurements with a
resolution of less than 0.5 V; or
b.9.c. Electrical tests fixtures for performance analysis of
integrated circuits;
Note: 3B991.b.9 does not control scanning electron microscopes,
except when specially designed and instrumented for non-contactive
probing of a powered-up semiconductor device.
b.10. ``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.10.a. Target-to-beam position feedback control precision of 1
micrometer or finer; or
b.10.b. Digital-to-analog conversion accuracy exceeding 12 bit;
b.11. Particle measuring systems employing ``lasers'' designed
for measuring particle size and concentration in air having both of
the following characteristics:
b.11.a. Capable of measuring particle sizes of 0.2 micrometer or
less at a flow rate of 0.02832 m3 per minute or more; and
b.11.b. Capable of characterizing Class 10 clean air or better.
C. Materials
3C001 Hetero-epitaxial materials consisting of a ``substrate'' with
stacked epitaxially grown multiple layers.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3,000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Silicon;
b. Germanium; or
c. III/V compounds of gallium or indium.
Technical Note: III/V compounds are polycrystalline or binary or
complex monocrystalline products consisting of elements of groups
IIIA and VA of Mendeleyev's periodic classification table (gallium
arsenide, gallium-aluminium arsenide, indium phosphide, etc.).
3C002 Resist materials, and ``substrates'' coated with controlled
resists.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: Yes for 3C002.a as described in Advisory Note 1.e
CIV: Yes for 3C002.a as described in Advisory Note 1.e
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Positive resists for semiconductor lithography specially
adjusted (optimized) for use at wavelengths below 370 nm;
b. All resists, for use with electron beams or ion beams, with a
sensitivity of 0.01 microcoulomb/mm2 or better;
c. All resists, for use with X-rays, with a sensitivity of 2.5
mJ/mm2 or better;
d. All resists optimized for surface imaging technologies,
including silyated resists.
Technical Note: Silyation techniques are defined as processes
incorporating oxidation of the resist surface to enhance performance
for both wet and dry developing.
3C003 Organo-inorganic compounds.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3,000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: This entry controls only compounds whose
metallic, partly metallic or non-metallic element is directly linked
to carbon in the organic part of the molecule.
Items:
a. Organo-metallic compounds of aluminum, gallium or indium
having a purity (metal basis) better than 99.999%; or
b. Organo-arsenic, organo-antimony and organo-phosphorus
compounds having a purity (inorganic element basis) better than
99.999% percent.
3C004 Hydrides of phosphorus, arsenic or antimony, having a purity
better than 99.999%, even diluted in inert gases or hydrogen.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $3000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: This entry does not control hydrides
containing less than 20% molar or more of inert gases or hydrogen.
Items: The list of items controlled is contained in the ECCN
heading.
[[Page 12986]]
D. Software
3D001 ``Software'' specially designed for the ``development'' or
``production'' of equipment controlled by 3A001.a.1.a, 3A001.b to
3A001.f, 3A002, 3A101 or 3B (except 3B991).
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to ``software'' for NS Column 1.
equipment controlled by 3A001.b to
3A001.f, 3A002, and 3B001 to 3B008.
MT applies to ``software'' for MT Column 1.
equipment controlled by 3A001.a.1.a or
3A101.
NP applies to ``software'' for NP Column 1.
equipment controlled by 3A001.e.5.
At applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes, except 3A001.e.5
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3D002 ``Software'' specially designed for the ``use'' of ``stored
program controlled'' items controlled by 3B (except 3B991).
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A Items: The list of items controlled is
contained in the ECCN heading.
3D003 Computer-aided-design (CAD) ``software'' for semiconductor
device or integrated circuits, having any of the following.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: (a) This entry does not control
``software'' specially designed for schematic entry, logic
simulation, placing and routing, layout verification or pattern
generation tape. (b) Libraries, design attributes or associated data
for the design of semiconductor devices or integrated circuits are
considered as ``technology''.
Items:
a. Design rules or circuit verification rules;
b. Simulation of the physically laid out circuits; or
c. Lithographic processing simulators for design.
Technical Note: A lithographic processing simulator is a
``software'' package used in the design phase to define the sequence
of lithographic, etching and deposition steps for translating
masking patterns into specific topographical patterns in conductors,
dielectrics or semiconductor material.
3D101 ``Software'' specially designed for the ``use'' of items
controlled by 3A101.b.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A Items: The list of items controlled is
contained in the ECCN heading.
3D980 ``Software'' specially designed for the ``development'',
``production'', or ``use'' of items controlled by 3A980 and 3A981.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3D994 ``Software'' specially designed for the ``development'',
``production'', or ``use'' of electronic devices or components
controlled by 3A992, electronic test equipment controlled by 3A993,
general purpose electronic equipment controlled by 3A994, or
manufacturing and test equipment controlled by 3B991.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
E. Technology
3E001 ``Technology'' according to the General Technology Note for the
``development'' or ``production'' of items controlled by 3A (except
3A980, 3A981, and 3A992 to 3A994), 3B (except 3B991) or 3C.
License Requirements
Reason for Control: NS, MT, NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to ``technology'' for items NS Column 1.
controlled by 3A001, 3A002, 3B001 to
3B008 or 3C001 to 3C004.
MT applies to ``technology'' for MT Column 1.
equipment controlled by 3A001 or 3A101
for MT reasons.
NP applies to ``technology'' for NP Column 1.
equipment controlled by 3A001, 3A201,
3A202, 3A225 to 3A233 for NP reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes, except 3A001.a.1.a and e.5
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definition: This entry does not control ``technology''
for the ``development'' or ``production'' of: (a) Microwave
transistors operating at frequencies below 31 GHz; (b) Integrated
circuits controlled by 3A001.a.3 to a.12, having both of the
following characteristics using ``technology'' of one micrometer or
more, AND not incorporating multi-layer structures. This does not
preclude the export and reexport of multilayer ``technology'' for
devices incorporating a maximum of two metal layers and two
polysilicon layers.
[[Page 12987]]
Items: The list of items controlled is contained in the ECCN
heading.
3E002 Other ``technology'' for the ``development'' or ``production''
of items described in this entry.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:
a. Vacuum microelectronic devices;
b. Hetero-structure semiconductor devices such as high electron
mobility transistors (HEMT), hetero-bipolar transistors (HBT),
quantum well or super lattice devices;
c. ``Superconductive'' electronic devices;
d. ``Substrates'' of films of diamond for electronic components.
3E101 ``Technology'' according to the General Technology Note for the
``use'' of equipment controlled by 3A001.a.1.a or 3A101.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3E201 ``Technology'' according to the General Technology Note for the
``use'' of items controlled by 3A001.e.2, e.3, and e.5, 3A201, 3A202,
3A225 to 3A233.
License Requirements
Reason for Control: NP, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NP applies to entire entry............. NP Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3E980 ``Technology'' specially designed for ``development'',
``production'', or ``use'' of items controlled by 3A980 and 3A981.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
3E994 ``Technology'' for the ``development'', ``production'', or
``use'' of electronic devices or components controlled by 3A992,
electronic test equipment controlled by 3A993, general purpose
electronic equipment controlled by 3A994, or manufacturing and test
equipment controlled by 3B991.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
EAR99 Items subject to the EAR that are not elsewhere specified in
this CCL Category or in any other category in the CCL are designated by
the number EAR99.
Advisory Notes for Category 3
Advisory Note 1: Licenses are likely to be approved, as
administrative exceptions, for exports to satisfactory end-users in
the People's Republic of China of:
a. Analog instrumentation magnetic tape recorders controlled by
3A002.a.1, provided that all of the following conditions are met:
1. Bandwidths do not exceed:
a. 4 MHz per track and have up to 28 tracks; or
b. 2 MHz per track and have up to 42 tracks;
2. Tape speed does not exceed 6.1 m/s;
3. They are not designed for underwater use;
4. They are not ruggedized for military use; and
5. Recording density does not exceed 653.2 magnetic flux sine
waves per mm;
b. Video magnetic tape recorders specially designed for civil
television recording;
c. Instrument ``frequency synthesizers'' or synthesized signal
generators controlled by 3A002.b or 3A002.d.2, and specially
designed components or accessories therefor, having:
1. A synthesized output frequency of 2.6 GHz or less; and
2. A ``frequency switching time'' of 0.3 ms or more;
d. Epitaxial reactors controlled by 3B001.a, except those also
controlled by 3B001.b or 3B001.c;
e. Positive resists not optimized for photolithography at a
wavelength of less than 365 nm, provided that they are not
controlled by 3C002.b to 3C002.d.
Advisory Note 2: Licenses are likely to be approved, as
administrative exceptions, for exports to satisfactory end-users in
Country Group D:1 of items controlled by 3A001.a.4.a or a.4.b.
Advisory Note 3: Licenses are likely to be approved for exports
and reexports to satisfactory end-uses in Country Group D:1 of items
controlled by 3A231, including tubes, provided that they are for
civil use.
N.B.: The provisions of this Advisory Note notwithstanding,
current law prohibits approval to nuclear production or utilization
facilities in the People's Republic of China.
Category 4--Computers
Note 1: Computers, related equipment or ``software'' performing
telecommunications or ``local area network'' functions must also be
evaluated against the performance characteristics in Category 5
(Part I. Telecommunications).
N.B. 1: 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 I. Telecommunications).
N.B. 2: For the control status of ``software'' that provides
routing or switching of ``datagram'' or ``fast select'' packets
(i.e., packet by packet route selection) or for ``software''
specially designed for packet switching, see Category 5 (Part I.
Telecommunications).
Note 2: Computers, related equipment or ``software'' performing
cryptographic, cryptanalytic, certifiable multi-level security or
certifiable user isolation functions, or that limit electronmagnetic
compatibility (EMC), must also be evaluated against the performance
characteristics in Category 5 (Part II. ``Information Security'').
A. Equipment, Assemblies and Components
4A001 Electronic computers and related equipment, and ``electronic
assemblies'' and specially designed components therefor.
License Requirements
Reason for Control: NS, MT, AT, NP, XP
[[Page 12988]]
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to 4A001.a.................. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
NP applies to all equipment controlled by this entry unless a
License Exception is available. See Sec. 742.3(b) of the EAR for
information on applicable licensing review policies.
XP applies to all equipment controlled by this entry unless a
License Exception is available. XP controls vary according to
destination and end-user and end-use.
See Sec. 742.12 of the EAR for additional information.
License Exceptions
LVS: $5,000 for 4A001.a; N/A for 4A001.b
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: Equipment designed or rated for transient
ionizing radiation is subject to the export licensing authority of
the U.S. Department of State, Office of Defense Trade Controls. (See
22 CFR part 121, Category XI.)
Related Definitions: N/A
Items:
a. Specially designed to have either of the following
characteristics:
a.1. Rated for operation at an ambient temperature below 228 K
(-45 deg.C) or above 358 K (85 deg.C);
Note: The temperature limits in 4A001.a.1. do not apply to
computers specially designed for civil automobile and railway train
applications.
a.2. Radiation-hardened to exceed any of the following
specifications:
a.2.a. Total Dose: 5 x 105 Rads (Si);
a.2.b. Dose Rate Upset: 5 x 108 Rads (Si)/sec;
a.2.c. Single Event Upse: 1 x 10-7 Error/bit/day; or
b. Having characteristics or performing functions exceeding the
limits in Category 5 (Part II. ``Information Security'').
4A002 ``Hybrid computers'', and ``electronic assemblies'' and
specially designed components therefor.
License Requirements
Reason for Control: NS, MT, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to hybrid computers combined MT Column 1.
with specially designed ``software'',
for modeling, simulation, or design
integration of complete rocket systems
and unmanned air vehicle systems that
are usable in systems controlled for
MT reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
NP applies to all equipment controlled by this entry unless a
License Exception is available. See Sec. 742.3(b) of the EAR for
information on applicable licensing review policies.
XP applies to all equipment controlled by this entry unless a
License Exception is available. XP controls vary according to
destination and end-user and end-use. See Sec. 742.12 of the EAR for
additional information.
License Exceptions
LVS: $,5,000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Containing ``digital computers'' controlled by 4A003;
b. Containing analog-to-digital converters having both of the
following characteristics:
b.1. 32 channels or more; and
b.2. A resolution of 14 bits (plus sign bit) or more with a
conversion rate of 200,000 conversions/s or more.
4A003 ``Digital computers'', ``electronic assemblies'', and related
equipment therefor, and specially designed components therefor.
License Requirements
Reason for Control: NS, MT, CC, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
MT applies to digital computers used as MT Column 1.
ancillary equipment for test
facilities and equipment that are
controlled by 9B005 or 9B006.
CC applies to computers for CC Column 1.
computerized fingerprint equipment.
AT applies to entire entry (refer to AT Column 1.
4A994 for controls on computers with a
CTP 6 but to
260 Mtops).
------------------------------------------------------------------------
NP applies to all equipment controlled by this entry unless a
License Exception is available. See Sec. 742.3(b) of the EAR for
information on applicable licensing review policies.
XP applies to all equipment controlled by this entry unless a
License Exception is available. XP controls vary according to
destination and end-user and end-use. See Sec. 742.12 of the EAR for
additional information.
License Exceptions
LVS: $5,000
GBS: Yes, for computers with a CTP not exceeding 1,000 Mtops
(500 Mtops for eligible countries in Country Group D:2) and
specially designed components therefor, exported separately or as
part of a system; and related equipment therefor when exported with
these computers as part of a system. (GBS is not available for the
export or reexport of items controlled by 4A003 if you know they
will be used to: enhance the performance capability [i.e., CTP] of a
computer to 2,000 Mtops. or greater, or enhance the performance
capability of a computer with a CTP 2,000 Mtops.)
CTP: Yes
CIV: Yes, for 4A03.d (having a 3-D vector rate less that 3M
vectors/sec) and .f (see Advisory Notes 2, 3 and 4 to Category 4)
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
Note 1: 4A003 includes vector processors, array processors,
digital signal processors, logic processors, and equipment for
``image enhancement'' or ``signal processing''.
Note 2: The control status of the ``digital computers'' or
related equipment described in 4A003 is governed 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 the
telecommunications entries in Category 5.
c. The ``technology'' for the ``digital computers'' and related
equipment is governed by 4E.
a. Designed or modified for ``fault tolerance'';
Note: For the purposes of 4A003.a, ``digital computers'' and
related equipment are not considered to be designed or modified for
``fault tolerance'', if they use:
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
[[Page 12989]]
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 a ``Composite Theoretical
Performance'' (``CTP'') exceeding 260 million composite theoretical
operations per second (Mtops);
c. ``Electronic assemblies'' specially designed or modified to
be capable of enhancing performance by aggregation of ``computing
elements'', so that the ``CTP'' of the aggregation exceeds the limit
in 4A003.b.
Note 1: 4A003.c applies only to ``electronic assemblies'' and
programmable interconnections not exceeding the limits 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.d to
4A003.f.
Note 2: 4A003.c does not control ``electronic assemblies''
specially designed for a product or family of products whose maximum
configuration does not exceed the limits of 4A003.b.
d. Graphics accelerators or graphics coprocessors exceeding a
``3-D Vector Rate'' of 1,600,000;
e. Equipment performing analog-to-digital conversions exceeding
the limits in 3A001.a.5;
f. Equipment containing ``terminal interface equipment''
exceeding the limits in 5A001.b.3;
Note: For the purposes of 4A003.f, ``terminal interface
equipment'' includes ``local area network'' interfaces, modems and
other communications interfaces. ``Local area network'' interfaces
are evaluated as ``network access controllers''.
g. Equipment, specially designed to provide for the external
interconnection of ``digital computers'' or associated equipment,
that allows communications at data rates exceeding 80 Mbytes/s.
Note: 4A003.g does not control internal interconnection
equipment (e.g., backplanes, buses) or passive interconnection
equipment.
4A004 Computers, and specially designed related equipment,
``electronic assemblies'' and components therefor.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 2.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: $5,000
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Systolic array computers'';
b. ``Neural computers''; and
c. ``Optical computers''.
4A101 Analog computers, ``digital computers'', or digital differential
analyzers, other than those controlled by 4A001.a.1, designed or
modified for use in missiles, having either of the following
characteristics.
License Requirements
Reason for Control: MT, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
MT applies to entire entry............. MT Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items:
a. Rated for continuous operation at temperatures from below
-45 deg. C to above +55 deg. C; or
b. Designed as ruggedized or ``radiation hardened''.
4A980 Computers for fingerprint equipment, n.e.s.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
4A994 Computers, ``electronic assemblies'', and related equipment not
controlled by 4A001, 4A002, or 4A003, and specially designed components
therefor.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
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 deg. C);
b. ``Digital computers'' having a ``composite theoretical
performance'' (``CTP'') equal to or greater than 6 million
theoretical operations per second (Mtops);
c. ``Assemblies'' not controlled by 4A003 that are specially
designed or modified to enhance performance by aggregation of
``computing elements'' (``CEs''), as follows:
c.1. Designed to be capable of aggregation in configurations of
16 or more ``computing elements'' (``CEs''); or
c.2. Having a sum of maximum data rates on all channels
available for connection to associated processors exceeding 40
million Bytes/s;
Note 1: 4A994.c applies only to ``electronic assemblies'' and
programmable interconnections with a ``CTP'' 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.
Note 2: 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'',
not controlled by 4A003, having a ``composite theoretical
performance'' (``CTP'') exceeding 8.5 million theoretical operations
per second (Mtops);
g. Graphics accelerators or graphics coprocessors, not
controlled by 4A003, that exceeds a ``3-D vector rate'' of 400,000
or, if supported by 2-D vectors only, a ``2-D vector rate'' of
600,000;
Note 1: The provisions of 4A994.g do not apply to work stations
designed for and limited to:
a. Graphic arts (e.g., printing, publishing); and
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;
Note 1: 4A994.h does not control displays or monitors not
specially designed for electronic computers.
[[Page 12990]]
Note 2: 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.
Note: 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''.
B. Test, Inspection and Production Equipment
4B994 Equipment for the ``development'' and ``production'' of magnetic
and optical storage equipment.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definition: This entry does not control general-purpose
sputtering equipment.
Items:
a. Equipment specially designed for the application of magnetic
coating to controlled non-flexible (rigid) magnetic or magneto-
optical media;
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.
C. Materials
4C994 Materials specially formulated for and required for the
fabrication of head/disk assemblies for controlled magnetic and
magneto-optical hard disk drives.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
D. Software
4D001 ``Software'' specially designed or modified for the
``development'', ``production'' or ``use'' of equipment controlled by
4A001 to 4A004, 4A101, or ``software'' controlled by 4D001 to 4D003.
License Requirements
Reason for Control: NS, MT, CC, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to ``software'' for items NS Column 1.
controlled by 4A001 to 4A004, 4D001 or
4D003.
MT applies to ``software'' for MT Column 1.
equipment controlled by 4A001 to 4A003
or 4A101 for MT reasons.
CC applies to ``software'' for CC Column 1.
equipment controlled by 4A003 for CC
reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
NP applies to all ``software'' controlled by this entry unless a
License Exception is available. See Sec. 742.3(b) of the EAR for
information on applicable licensing review policies.
XP applies to all ``software'' controlled by this entry unless a
License Exception is available. XP controls vary according to
destination and end-user and end-use. See Sec. 742.12 of the EAR for
additional information.
License Exceptions
CIV: Yes, (see Advisory Notes 2 and 3 to Category 4)
TSR: Yes, except for computers requiring a license.
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
4D002 ``Software'' specially designed or modified to support
``technology'' controlled by 4E001 or 4E002.
License Requirements
Reason for Control: NS, MT, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
MT applies to ``software'' for MT Column 1.
equipment controlled by 4A001 to 4A003
or 4A101 for MT reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
NP applies to all ``software'' controlled by this entry unless a
License Exception is available. See Sec. 742.3(b) of the EAR for
information on applicable licensing review policies.
XP applies to all ``software'' controlled by this entry unless a
License Exception is available. XP controls vary according to
destination and end-user and end-use. See Sec. 742.12 of the EAR for
additional information.
License Exceptions
CIV: N/A
TSR: Yes, except ``software'' specifically designed or modified
to support ``technology'' for computers requiring a license.
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
4D003 Specific ``software'', as described in this entry.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes, except 4D003.c
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Operating system ``software'', ``software'' ``development''
tools and compilers specially designed for ``multi-data-stream
processing'' equipment, in ``source code'';
b. ``Expert systems'' or ``software'' for ``expert system''
inference engines providing both:
b.1. Time dependent rules; and
b.2. Primitives to handle the time characteristics of the rules
and the facts;
c. ``Software'' having characteristics or performing functions
exceeding the limits in the ``information security'' entries in
Category 5;
d. Operating systems specially designed for ``real time
processing'' equipment that guarantees a ``global interrupt latency
time'' of less than 20 microseconds.
4D980 ``Software'' specially designed for the ``development'',
``production'', or ``use'' of items controlled by 4A980.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
[[Page 12991]]
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
4D993 ``Program'' proof and validation ``software'', ``software''
allowing the automatic generation of ``source codes'', and operating
systems not controlled by 4D003 that are specially designed for real
time processing equipment.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Program'' proof and validation ``software'' using
mathematical and analytical techniques and designed or modified for
``programs'' having more than 500,000 ``source code'' instructions;
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 systems not controlled by 4D003 that are specially
designed for ``real time processing'' equipment that guarantees a
``global interrupt latency time'' of less than 30 microseconds.
4D994 ``Software'' specially designed or modified for the
``development'', ``production'', or ``use'' of equipment controlled by
4A994, 4B994 and materials controlled by 4C994.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
E. Technology
4E001 ``Technology'' according to the General Technology Note, for the
``development'', ``production'' or ``use'' of equipment controlled by
4A001 to 4A004, 4A101 or ``software'' controlled by 4D (except 4A980,
4A993 or 4A994).
License Requirements
Reason for Control: NS, MT, CC, AT, NP, XP
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to ``technology'' for items NS Column 1.
controlled by 4A001 to 4A004, 4D001 or
4D002.
MT applies to ``technology'' for items MT Column 1.
controlled by 4A001 to 4A003, 4A101
4D001 or 4D002 for MT reasons.
CC applies to ``technology'' for CC Column 1.
equipment controlled by 4A003 for CC
reasons.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
NP applies to all ``technology'' controlled by this entry unless
a License Exception is available. See Sec. 742.3(b) of the EAR for
information on applicable licensing review policies.
XP applies to all ``technology'' controlled by this entry unless
a License Exception is available. XP controls vary according to
destination and end-user and end-use. See Sec. 742.12 of the EAR for
additional information.
License Exceptions
CIV: N/A
TSR: Yes, except ``technology'' for computers with a CTP > 2,000
Mtops.
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
4E002 Other ``technology''.
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to entire entry............. NS Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: Yes
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Technology'' for the ``development'' or ``production'' of
equipment designed for ``multi-data-stream processing'' where the
``CTP'' exceeds 120 Mtops;
b. ``Technology'' ``required'' for the ``development'' or
``production'' of magnetic hard disk drives with a Maximum Bit
Transfer Rate (``MBTR'') exceeding 47 Mbits/s.
4E980 ``Technology'' for the ``development'', ``production'', or
``use'' of items controlled by 4A980.
License Requirements
Reason for Control: CC
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
CC applies to entire entry............. CC Column 1.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
4E992 ``Technology'' for the ``development'', ``production'', or
``use'' of equipment controlled by 4A994 and 4B994, materials
controlled by 4C994, or ``software'' controlled by 4D992, 4D993, or
4D994.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items: The list of items controlled is contained in the ECCN
heading.
4E993 ``Technology'' for the ``development'' or ``production'' of
graphics accelerators or equipment designed for ``multi-data-stream
processing'' and ``technology'' ``required'' for the ``development'' or
``production'' of magnetic hard disk drives.
License Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
CIV: N/A
TSR: N/A
[[Page 12992]]
List of Items Controlled
Unit: N/A
Related Controls: N/A
Related Definitions: N/A
Items:
a. ``Technology'' for the ``development'' or ``production'' of
graphics accelerators not controlled by 4A003.d or 4A994.g;
b. ``Technology'', not controlled by 4E002.a, for the
``development'' or ``production'' of equipment designed for ``multi-
data-stream processing'';
c. ``Technology'', not controlled by 4E002.b, ``required'' for
the ``development'' or ``production'' of magnetic hard disk drives
with a ``maximum bit transfer rate'' (``MBTR'') exceeding 11 Mbit/s.
EAR99 Items subject to the EAR that are not elsewhere specified in
this CCL Category or in any other category in the CCL are designated by
the number EAR99.
Advisory Notes for Category 4
Advisory Note 1: Licenses are likely to be approved, as
administrative exceptions, for exports and reexports to satisfactory
end-users in Romania of the items controlled by Category 4 for
national security reasons, except:
a. Computers controlled by 4A001 or 4A002;
b. ``Digital computers'' controlled by 4A003.b having a
``composite theoretical performance (``CPT'') exceeding 100 million
theoretical operations per second (Mtops);
c. Computers controlled by 4A004, and specially related
equipment, ``electronic assemblies'' and components therefor;
d. ``Software'' specially designed and ``technology''
``required'' for the equipment described in this Advisory Note 1 .a,
.b, or .c that are controlled by 4D or 4E.
Advisory Note 2: Licenses are likely to be approved, as
administrative exceptions, for export and reexport to satisfactory
end-users in the People's Republic of China of ``digital
computers'', specially designed components and related equipment
therefor, controlled by 4A003.b, .d, .e, .f, or ``software''
controlled by 4D001, provided that:
a. They will be operated by civil end-users for civil
applications;
b. They are exported or reexported as complete systems or
enhancements to previously exported systems up to the limits in this
Advisory Note 2.d;
c. They have been primarily designed and used for non-strategic
applications;
d. The ``CTP'' of the ``digital computers'' does not exceed 20
Mtops;
e. Equipment containing ``terminal interface equipment'' does
not exceed:
1. The limits of Advisory Note 3 to Category 5, Section I
(Telecommunications);
2. The limits of 5A002.c.2; or
3. A ``digital transfer rate'' of 100 Mbits/s on the common
media for ``network access controllers'' and related equipment
controlled by 5A002.c.3; and
f. Any controlled ``software'' is the minimum required for the
``use'' of the approved ``digital computers'' and related equipment.
Advisory Note 3: Licenses are likely to be approved, as
administrative exceptions, for exports and reexports to satisfactory
end-users in Country Group D:1 of ``digital computers'',
``electronic assemblies'' or related equipment controlled by 4A003,
or specially designed components therefor, and ``software''
controlled by 4D001, provided that:
a. They will be operated by civil end-users for civil
applications;
b. They have been primarily designed and used for non-strategic
applications;
c. They do not exceed any of the following limits:
1. The ``CTP'' of the ``digital computers'' does not exceed
1,000 Mtops;
2. The ``3-D vector rate'' does not exceed 3 million;
3. The total data transfer rate of equipment controlled by
4A003.g does not exceed 400 MB/second;
d. When exported as enhancements, the enhanced ``digital
computer'' does not exceed the limit in this Advisory Note 3.c;
e. Exports of items covered by this Advisory Note 3 shall be
subject to the following restrictions:
1. The equipment will be used primarily for the specific non-
strategic application for which the export or reexport has been
approved; and
2. The equipment will not be used for the design,
``development'', or ``production'' of items controlled for national
security reasons; and
3. The exporter or reexporter shall report promptly any evidence
of the removal or diversion of the equipment from authorized
purposes related to the specific license;
f. For systems where the ``CTP'' exceeds 520 Mtops, the
following conditions apply:
1. The licensee or the designated representative of the
licensee, who must be from a country other than that listed in
Country Group D:1, must have the right of access to all the
equipment and may carry out inspections;
2. The licensee, upon the request of the BXA, must carry out
inspections to establish that all the equipment and systems exported
or reexported under the provisions of this Advisory Note:
a. Are being used for the intended civil purposes; and
b. Are still located at the installation sites. The licensee
shall report the findings from the inspection to the BXA (at P.O.
Box 273, Washington, D.C. 20044) within one month after completing
the inspection.
Advisory Note 4: Licenses are likely to be approved, as
administrative exceptions, for exports and reexports to satisfactory
end-users in Country Group D:1 of equipment controlled by 4A003.g,
provided that it is exported or reexported for ``use'' in
interconnecting peripheral equipment to ``digital computers'' not
controlled by 4A003.b.
Information on How to Calculate ``Composite Theoretical
Performance'' (``CTP''):
Technical Note: ``Composite Theoretical Performance'' (CTP).
Abbreviations Used in This Technical Note
CE ``computing element'' (typically an arithmetic logical unit)
FP floating point
XP fixed point
t execution time
XOR exclusive OR
CPU central processing unit
TP theoretical performance (of a single CE)
CTP ``composite theoretical performance'' (multiple CEs)
R effective calculating rate
WL word length
L word length adjustment
* multiply
Execution time `t' is expressed in microseconds, TP and ``CTP''
are expressed in Mtops (millions of theoretical operations per
second) and WL is expressed in bits.
Outline of ``CTP'' Calculation Method
``CTP'' is a measure of computational performance given in
millions of theoretical operations per second (Mtops). In
calculating the ``Composite Theoretical Performance'' (``CTP'') of
an aggregation of ``Computing Elements'' (``CEs''), the following
three steps are required:
1. Calculate the effective calculating rate (R) for each
``computing element'' (``CE'');
2. Apply the word length adjustment (L) to the effective
calculating rate (R), resulting in a Theoretical Performance (TP)
for each ``computing element'' (``CE'');
3. If there is more than one ``computing element'' (``CE''),
combine the Theoretical Performances (TPs), resulting in a
``Composite Theoretical Performance'' (``CTP'') for the aggregation.
Details for these steps are given in the following section.
Note 1: For aggregations of multiple ``computing elements''
(``CEs'') that have both shared and unshared memory subsystems, the
calculation of ``CTP'' is completed hierarchically, in two steps:
first, aggregate the group of ``computing elements'' (``CEs'')
sharing memory, second calculate the ``CTP'' of the groups using the
calculation method for multiple ``computing elements'' (``CEs'') not
sharing memory.
Note 2: ``Computing elements'' (``CEs'') that are limited to
input/output and peripheral functions (e.g., disk drive,
communication and video display controllers) are not aggregated into
the ``CTP'' calculation.
The following table shows the method of calculating the
``Effective Calculating Rate'' (R) for each ``Computing Element''
(``CE''):
Step 1: The effective calculating rate R. For Computing Elements
(CEs) Implementing: Effective calculating Rate, R
Note: Every ``CE'' must be evaluated independently
[[Page 12993]]
[GRAPHIC] [TIFF OMITTED] TR25MR96.014
If no add is implemented use:
[GRAPHIC] [TIFF OMITTED] TR25MR96.015
If neither add nor multiply is implemented use the fastest
available arithmetic operation as follows:
[GRAPHIC] [TIFF OMITTED] TR25MR96.016
See Notes X and Y.
[GRAPHIC] [TIFF OMITTED] TR25MR96.017
See Notes X and Y.
Both FP and XP (R).
Calculate both Rxp, Rfp.
For simple logic processors not implementing any of the
specified arithmetic operations.
[GRAPHIC] [TIFF OMITTED] TR25MR96.018
Where tlog is the execute time of the XOR, or for logic
hardware not implementing the XOR, the fastest simple logic
operation.
See Notes X and Z.
For special logic processors not using any of the specified
arithmetic or logic operations. R = Rt x WL/64
Where R is the number of results per second, WL is the number of
bits upon which the logic operation occurs, and 64 is a factor to
normalize to a 64 bit operation.
Note W: 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.
Note X: For a ``CE'' that performs multiple operations of a
specific type in a single cycle (e.g., two additions per cycle or
two identical logic operations per cycle), the execution time t is
given by:
[GRAPHIC] [TIFF OMITTED] TR25MR96.019
``Computing elements'' (``CEs'') that perform different types of
arithmetic or logic operations in a single machine cycle are to be
treated as multiple separate ``computing elements'' (``CEs'')
performing simultaneously (e.g., a ``CE'' performing an addition and
a multiplication in one cycle is to be treated as two ``CEs'', the
first performing an addition in one cycle and the second performing
a multiplication in one cycle).
If a single ``Computing element'' (``CE'') has both scalar
function and vector function, use the shorter execution time value.
Note Y: For the ``CE'' that does not implement FP add or FP
multiply, but that performs FP divide:
[[Page 12994]]
[GRAPHIC] [TIFF OMITTED] TR25MR96.020
If the ``CE'' implements FP reciprocal, but not FP add, FP
multiply or FP divide, then:
[GRAPHIC] [TIFF OMITTED] TR25MR96.021
If the divide is not implemented, the fp reciprocal should be
used.
If none of the specified instructions is implemented, the
effective floating point (FP) rate is 0.
Note Z: 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 instruction
performs multiple logic manipulations to produce one or more results
from two or more operands.
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: TP for each supported operand length WL:
Adjust the effective rate R (or Rt) by the word length
adjustment L as follows:
[GRAPHIC] [TIFF OMITTED] TR25MR96.022
Note: 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 ``computing
Element'' (``CE'') with a Word Length (WL) equal to the number of
bits in the data representation (typically 32 or 64) for purposes of
the ``Composite Theoretical Performance'' (``CTP'') calculations.
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'' (Rxp);
Each FP-only ``CE'' (Rfp);
Each combined FP and XP ``CE'' (R);
Each simple logic processor not implementing any of the
specified arithmetic operations; and
Each special logic processor not using any of the specified
arithmetic or logic operations.
Step 3: ``CTP'' for aggregations of ``CEs'', including CPU's:
For a CPU with a single ``CE'', ``CTP'' = TP (for CEs performing
both fixed and floating point operations, TP = max (TPfp,
TPxp)).
``CTP'' for aggregations of multiple ``CEs'' operating
simultaneously is calculated as follows:
Note 1: 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.
N.B.: To determine the possible combinations of simultaneously
operating ``CEs'', generate an instruction sequence that initiates
operations in multiple ``CEs'', beginning with the slowest ``CE''
(the one needing the largest number of cycles to complete its
operation) and ending with the fastest ``CE''. At each cycle of the
sequence, the combination of ``CEs'' that are in operation during
that cycle is a possible combination. The instruction sequence must
take into account all hardware and/or architectural constraints on
overlapping operations.
Note 2: A single integrated circuit chip or board assembly may
contain multiple ``CEs''.
Note 3: 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.
Note 4: ``CTP'' values are not to be aggregated for ``CE''-
combinations (inter)connected by ``Local Area Networks'', Wide Area
Networks, Input/Output shared connections/devices, I/O controllers
and any communication interconnection implemented by ``software''.
Note 5: ``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. This aggregation does not apply to ``electronic
assemblies'' controlled by 4A003.c.
``CTP'' = TP1 + C2 * TP2 + . . . + Cn *
TPn, where the TPs are ordered by value, with TP1, being
the highest, TP2 being the second highest, . . . and TPn
being the lowest. Ci is a coefficient determined by the
strength of the interconnection between ``CEs'', as follows:
For multiple ``CEs'' operating simultaneously and sharing
memory:
[GRAPHIC] [TIFF OMITTED] TR25MR96.023
Note 1: When the ``CTP'' calculated by the above method does not
exceed 194 Mtops, the following formula may be used to calculate
Ci:
[GRAPHIC] [TIFF OMITTED] TR25MR96.024
where m = the number of ``CEs'' or groups of ``CEs'' sharing
access.
Provided:
1. The TPi of each ``CE'' or group of ``CEs'' does not
exceed 30 Mtops;
2. The ``CEs'' or groups of ``CEs'' share access to main memory
(excluding cache memory) over a single channel; and
3. Only one ``CE'' or group of ``CEs'' can have use of the
channel at any given time.
N.B.: This does not apply to items controlled under Category 3.
Note 2: ``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:
Ci=0.75*ki (i=2, . . ., 32) (see NOTE on ki factor)
=0.60*ki (i=33, . . ., 64)
=0.45*ki (i=65, . . ., 256)
=0.30*ki (i>256)
The value of Ci is based on the number of ``CEs'', not the
number of nodes.
where ki=min (Si/Kr, 1), and
Kr=normalizing factor of 20 MByte/s.
Si=sum of the maximum data rates (in units of MBytes/s) for
all data channels connected to the ith ``CE'' or group of
``CEs'' sharing memory.
When calculating a Ci for a group of ``CEs'', the number of
the first ``CE'' in a group determines the proper limit for Ci.
For example, in an aggregation of groups consisting of 3 ``CEs''
each, the 22nd group will contain ``CE''64, ``CE''65 and
``CE''66 . The proper limit for Ci for this group is 0.60.
Aggregation (of ``CEs'' or groups of ``CEs'') should be from the
fastest-to-slowest; i.e.:
[[Page 12995]]
TP1TP2TP3; and in the case
of TPi=TPi+1, from the largest to smallest, i.e.:
CiCi+1
Note: The ki factor is not to be applied to ``CEs'' to 2 to
12 if the TP i / of the ``CE'' or group of ``CEs'' is more than 50
Mtops; i.e., Ci for ``CEs'' 2 to 12 is 0.75.
Category 5--Telecommunications and Information Security
Notice: Category 5 entries are divided into two sections. (I)
Telecommunications and (II) Information Security.
I. Telecommnications
Notes: 1. The control status of components, ``lasers'', test and
``production'' equipment, materials and ``software'' therefor that
are specially designed for telecommunications equipment or systems
is defined in the telecommunications entries in this Category.
2. ``Digital computers'', related equipment or ``software'',
when essential for the operation and support of telecommunications
equipment described by the telecommunications equipment 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.
A. Equipment, Assemblies and Components
5A001 Any type of telecommunications equipment having any of the
following characteristics, functions or features:
License Requirements
Reason for Control: NS, AT
------------------------------------------------------------------------
Control(s) Country Chart
------------------------------------------------------------------------
NS applies to 5A001.a.................. NS Column 1.
NS applies to 5A001.b., c., d., .e, or NS Column 2.
.f.
AT applies to entire entry............. AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A for 5A001.a;
$5000 for 5A001.b, .c, .d, and .f;
$3000 for 5A001.e
GBS: Yes, except 5A001.a, b.8, and b.9
CIV: Yes, except 5A001.a, b.8, and b.9
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value
Related Controls: N/A
Related Definitions: N/A
Items:
a. Any type of telecommunications equipment having any of the
following characteristics, functions or features:
a.1. Specially designed to withstand transitory electronic
effects or electromagnetic pulse 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 deg. C) to 397 K (124 deg. C).
Note: 5A001.a.3 applies only to electronic equipment.
Note: 5A001.a.2 and a.3 do not apply to equipment on board
satellites.
b. Telecommunication transmission equipment or systems and
specially designed components and accessories therefor, having any
of the characteristics, functions or features:
Note: Telecommunication transmission equipment:
a. Categorized as follows, or combinations thereof:
1. Radio equipment (e.g., transmitters, receivers and
transceivers);
2. Line terminating equipment;
3. Intermediate amplifier equipment;
4. Repeater equipment;
5. Regenerator equipment;
6. Translation encoders (transcoders);
7. Multiplex equipment (statistical multiplex included);
8. Modulators/demodulators (modems);
9. Transmultiplex equipment (see CCITT Rec. G.7Ol);
10. ``Stored program controlled'' digital crossconnection
equipment;
11. ``Gateways'' and bridges;
12. ``Media access units''; and
b. Designed for use in single or multi-channel communication
via:
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.
Note: 5A001.b.1. does not control equipment specially designed
to be integrated and operated in any satellite system for civil use.
b.2. Being ``stored program controlled'' digital cross connect
equipment with a ``digital transfer rate'' exceeding 8.5 Mbit/s per
port.
b.3. Being equipment containing:
b.3.a. Modems using the ``bandwidth of one voice channel'' with
a ``data signalling rate'' exceeding 28,800 bits/s;
b.3.b. ``Communication channel controllers'' with a digital
output having a ``data signalling rate'' exceeding 2.1 Mbit/s per
channel; or
b.3.c. ``Network access controllers'' and their related common
medium having a ``digital transfer rate'' exceeding 156 Mbit/s;
Note: If any non-controlled equipment contains a ``network
access controller'', it cannot have any type of telecommunications
interface except those described in, but not controlled by,
5A001.b.3.
b.4 Employing a ``laser'' and having any of the following
characteristics:
b.4.a. Having a transmission wavelength exceeding 1,000 nm;
b.4.b. Employing analog techniques and having a bandwidth
exceeding 45 MHz;
b.4.c. Employing coherent optical transmission or coherent
optical detection techniques (also called optical heterodyne or
homodyne techniques);
b.4.d. Employing wavelength division multiplexing techniques; or
b.4.e. Performing ``optical amplification''.
b.5. Radio equipment operating at input or output frequencies
exceeding:
b.5.a. 31 GHz for satellite-earth station applications; or
b.5.b. 26.5 GHz for other applications;
Note: 5A001.b.5.b. does not control equipment for civil use when
conforming with an International Telecommunicatios Union (ITU)
allocated band between 26.5 GHz and 31 GHz.
b.6. Being radio equipment:
b.6.a. Employing quadrature-amplitude-modulation (QAM)
techniques above level 4 if the ``total digital transfer rate''
exceeds 8.5 Mbit/s;
b.6.b. Employing quadrature-amplitude-modulation (QAM)
techniques above level 16 if the ``total digital transfer rate'' is
equal to or less than 8.5 Mbit/s; or
b.6.c. Employing other digital modulation techniques and having
a ``spectral efficiency'' greater than 3 bit/sec/Hz;
Note 1: 5A001.b.6 does not control equipment specially designed
to be integrated and operated in any satellite system for civil use.
Note 2: 5A001.b.6. does not control radio relay equipment for
operation in an ITU allocated band:
a.1. Not exceeding 960 MHz; or
a.2. With a ``total digital transfer rate'' not exceeding 8.5
Mbit/s; and
b. Having a ``spectral efficiency'' not exceeding 4 bit/sec/Hz.
b.7 Being radio equipment operating in the 1.5 to 87.5 MHz band
and having either of the following characteristics:
b.7.a.1. Automatically predicting and selecting frequencies and
``total digital transfer rates'' per channel to optimize the
transmission; and
b.7.a.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 1.5 to 30 Mhz frequency range or
250 W or more in the 30 to 87.5 MHz frequency range, over an
``instantaneous bandwidth'' of one octave or more and with an output
harmonic and distortion content of better than -80 dB; or
b.7.b. Incorporating adaptive techniques providing more than 15
dB suppression of an interfering signal.
b.8. Being radio equipment employing ``spread spectrum'' or
``frequency agility'' (frequency hopping) techniques having any of
the following characteristics:
b.8.a. User programmable spreading codes; or
b.8.b. A total transmitted bandwidth that is 100 or more times
the bandwidth of any one information channel and in excess of 50
kHz.
b.9. Being digitally controlled radio receivers having more than
1,000 channels, that:
b.9.a. Search or scan automatically a part of the
electromagnetic spectrum;
b.9.b. Identify the received signals or the type of transmitter;
and
b.9.c. Have a ``frequency switching time'' of less than 1 ms;
b.10. Providing functions of digital ``signal processing'' as
follows:
b.10.a. Voice coding at rates less than 2,400 bit/s;
[[Page 12996]]
b.10.b. Employing circuitry that incorporates ``user-accessible
programmability'' of digital ``signal processing'' circuits
exceeding the limits of 4A003.b;
b.11. Being underwater communications systems having any of the
following characteristics:
b.11.a. An acoustic carrier frequency outside the range of 20 to
60 kHz;
b.11.b. Using an electromagnetic carrier frequency below 30 kHz;
or
b.11.c. Using electronic beam steering techniques.
c. ``Stored program controlled'' switching equipment and related
signalling systems having any of the following characteristics,
functions or features; and specially designed components and
accessories therefor:
Note: Statistical multiplexers with digital input and digital
output that provide switching are treated as ``stored program
controlled'' switches.
c.1. ``Common channel signalling'',
Note: Signalling systems in which the signalling channel is
carried in and refers to no more than 32 multiplexed channels
forming a trunk line of no more than 2.1 Mbit/s, and in which the
signalling information is carried in a fixed, time division
multiplexed channel without the use of labelled messages, are not
considered to be ``common channel signalling'' systems.
c.2. Containing ``Integrated Services Digital Network'' (ISDN)
functions and having either of the following:
c.2.a. Switch-terminal (e.g., subscriber line) interfaces with a
``digital transfer rate'' at the highest multiplex level exceeding
192,000 bit/s, including the associated signalling channel (e.g.,
2B+D); or
c.2.b. The capability that a signalling 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.
Note: 5A001.c.2. does not preclude:
a. The evaluation and appropriate actions taken by the receiving
switch.
b. Unrelated user message traffic on a D channel of ISDN.
c.3. Multi-level priority and pre-emption for circuit switching;
Note: 5A001.c.3. does not control single-level call preemption.
c.4. ``Dynamic adaptive routing'';
c.5. Routing or switching of ``datagram'' packets;
c.6. Routing or switching of ``fast select'' packets;
Note: The restrictions in 5A001.c.5. and c.6. do not apply to
networks restricted to using only ``network access controllers'' or
to ``network access controllers'' themselves.
c.7. 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.8. Being packet switches, circuit switches and routers with
ports or lines exceeding either:
c.8.a. A ``data signalling rate'' of 64,000 bit/s per channel
for a ``communications channel controller''; or
Note: 5A001.c.8.a. does not preclude the multiplexing over a
composite link of communications channels not controlled by
5A001.b.1.
c.8.b. A ``digital transfer rate'' of 33 Mbit/s for a ``network
access controller'' and related common media.
c.9. ``Optical switching'';
c.10. Employing ``Asynchronous Transfer Mode'' (ATM) techniques;
c.11. Containing ``stored program controlled'' digital
crossconnect equipment with ``digital transfer rate'' exceeding 8.5
Mbit/s per port;
d. Centralized network control having both of the following
characteristics:
d.1. Receives data from the nodes; and
d.2. Processes these data in order to provide control of traffic
not requiring operator decisions, and thereby performing ``dynamic
adaptive routing'';
Note: 5A001.d. does not preclude control of traffic as a
function of predictable statistical traffic conditions.
e. Optical fiber communication cables, optical fibers and
accessories therefor, as follows:
e.1. Optical fiber or cable of more than 50 m in length having
either of the following characteristics:
e.1.a. Designed for single mode operation; or
e.1.b. For optical fibers, specified by the manufacturer as
being capable of withstanding a Proof Test tensile stress of
2. x 10