[Federal Register Volume 60, Number 91 (Thursday, May 11, 1995)]
[Proposed Rules]
[Pages 25268-25477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10994]
[[Page 25267]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
Bureau of Export Administration
_______________________________________________________________________
15 CFR Part 730, et al.
Simplification of Export Administration Regulations; Proposed Rule
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 /
Proposed Rules
[[Page 25268]]
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
[Docket No. 950407094-5094-01]
RIN 0694-AA67
Export Administration Regulation; Simplification of Export
Administration Regulations
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Bureau of Export Administration (BXA) is proposing a
comprehensive revision and reorganization of its Export Administration
Regulations (EAR), the regulatory regime through which BXA imposes
export and reexport controls on those items and activities within its
jurisdiction. This proposed rule would clarify the language of the EAR,
simplify their application, and generally make the export control
regulatory regime more user-friendly.
DATES: Written comments on this proposed rule must be received on or
before July 10, 1995.
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, Acting 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 this proposed
regulation, BXA shared four discussion packages with Regulations &
Procedures Technical Advisory Committee (RPTAC), an advisory committee
consisting of industry representatives. This was to seek the comments
of a working group of persons 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.
Based on the comments received from the public and from the RPTAC
and its own assessment of how the EAR could be improved, the Task Force
determined that the EAR should be entirely reorganized and streamlined.
The Task Force accomplished this through the development of innovations
that resulted in the following important features, among others:
No license or other authorization would be required for
any transaction under BXA jurisdiction unless the regulations
affirmatively state the requirement. (Current 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 current general licenses into a
smaller number of ``exceptions'', set forth in the proposed
regulations, to the obligation to seek a license when the control
list indicates that the particular item going to the stated country
generally requires a license.
The chapters of the regulations would be arranged to
give the exporter and reexporter a logical path to follow.
The affirmative statements of the need to obtain a
license, currently scattered throughout the regulations, would be
consolidated into ten general prohibitions. One chapter would
contain the license review policy for all list-based license
requirements; another 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
are 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 current 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.
Set forth below is a detailed part-by-part description of the
proposed rule and a review of comments received pursuant to the ANPRM,
along with BXA's responses.
Part-by-Part Analysis
Part 730--General Information
This Part is designed to provide a convenient introduction and
orientation for readers of the EAR, particularly those who are not used
to dealing with such regulations. This Part briefly indicates the types
of controls contained in the EAR (export and reexport controls and
antiboycott regulations), identifies the key statutes involved, and
alerts the reader to the fact that jurisdiction over some exports and
reexports is exercised by agencies other than BXA.
Part 730 notes the basic control purposes and the relationship of
some of the controls to multilateral arrangements. It points out that
only a small percentage of exports, reexports, and other transactions
subject to the EAR involve the need to apply to BXA for a license. Many
items (commodities, technology, and software) listed on the CCL may be
exported and reexported without a license due to License Exceptions
that can be used simply by meeting the terms of the EAR.
Further, this Part 730 notes that this proposed re-write of the EAR
is designed to enhance the ability of exporters and reexporters to find
the rules on their own, but also advises on the availability of help.
It also highlights the benefits to exporters and reexporters from the
precision, completeness, and objective character of the detailed
provisions of the EAR.
Part 730 relates the antiboycott provisions of the EAR to the
Internal Revenue Code provisions that deny certain tax benefits for
boycott-related reasons.
Part 730 closes by cautioning that its brief descriptions are
solely for convenience and that readers must look to the body of the
EAR and elsewhere [[Page 25269]] for the actual rules. The regulations
being replaced do not contain material comparable to Part 730.
Part 732--Scope of the Export Administration Regulations
The proposed regulation would introduce the term ``subject to the
EAR'' to define the scope of the regulations. The term would be used in
the rule to describe those items and activities over which BXA
exercises regulatory jurisdiction under the EAR. Conversely, items and
activities that are not subject to the EAR would be outside the
regulatory jurisdiction of the EAR and not affected by the proposed
regulations. It should be noted that the term ``subject to the EAR'' is
not to be confused with licensing or other requirements imposed in
other parts of the EAR. The fact that 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 would apply only in those cases
where the EAR impose a licensing or other requirement on such items or
activities.
Items previously included on the CCL under ECCNs ending in the
letter ``G'' were known as basket categories. Under this rule, the
basket categories would be included within the term ``subject to the
EAR,'' even though they are not listed on the CCL.
The proposed rule would make clear that items and activities
subject to the EAR are not necessarily exempted from the control
programs of other agencies. Although BXA and other agencies try to
minimize overlapping jurisdiction, situations might occur in which an
exporter and a reexporter would have to comply with more than one
regulatory program. Moreover, items not subject to the EAR may or may
not be subject to licensing by other agencies.
Generally, all U.S. origin items, items exported from the United
States, and certain foreign-made products, as described in Sec. 732.4,
would be subject to the EAR. However, certain items, such as items that
are exclusively controlled for export by another department or agency
of the U.S. Government, would be explicitly excepted from the EAR.
Further, technology and software that are already publicly available or
will be made publicly available, as described in Sec. 732.7; arise
during or result from fundamental research, as described in Sec. 732.8;
are educational, as described in Sec. 732.9; or are included in certain
patent applications, as described in Sec. 732.10, would not be subject
to the EAR.
Certain foreign-made products would be subject to the EAR.
Controlled U.S. origin parts, components, materials, or other
commodities incorporated abroad into foreign-made products, if they
exceed certain de minimis levels. For the first time, the proposed rule
includes technology and software in the calculation of de minimis
values. BXA especially invites substantive comments and suggestions on
calculating such values for technology and software. BXA is considering
requirements that such calculations be made in accordance with United
States accounting standards including the rulings of the Financial
Accounting Standards Board and that calculations be based solely upon
cost records maintained in the normal course of business. BXA is also
considering whether to require a one-time report of such calculations
in advance of any reliance upon the de minimis exclusion for technology
and software. BXA also urges exporters to provide substantive comments
and suggestions on this option. In addition, foreign-made direct
products of U.S. origin technology or software and any commodity
produced by any plant or major component of a plant which is a direct
product of U.S. origin technology or software, would be subject to the
EAR as provided in the current regulations.
The proposed regulations make clear that certain activities would
also be subject to the EAR. The activities subject to the EAR would
include certain proliferation-related activities by any person, as set
forth in Part 744. Activities prohibited by any order issued under the
EAR, including a denial order, would also be subject to the EAR.
Part 732 would also contain rules governing other exports and
reexports subject to the EAR. The rule would continue the general
policy of permitting most shipments to Canada without a license.
Further, items exported from U.S. foreign trade zones would be subject
to the EAR, as would items moving intransit through the United States.
Finally, the proposed regulations would state that neither a license
nor other authorization would be required for shipments from the United
States to Puerto Rico, the Commonwealth of the Northern Mariana
Islands, or any other territory, dependency, or possession of the
United States.
BXA would offer assistance to a potential exporter, or other
interested party, in determining whether an item is subject to the EAR.
Part 734--General Prohibitions
If an export, reexport, or activity is subject to the EAR, the
general prohibitions contained in Part 734 and the exceptions set forth
in Part 740 must be reviewed to determine if a license is necessary.
However, no license or other authorization would be required for any
transaction subject to the EAR unless the regulations affirmatively
state the requirement.
Part 734 would contain the rules for ascertaining when an export or
reexport subject to the EAR requires a license. This would involve
determining whether a transaction subject to the EAR is subject to a
general prohibition. Specifically, if an export or reexport subject to
the EAR is also subject to a general prohibition, then a license would
be required in order to undertake the export or reexport, unless an
exception to the prohibition applies.
This part would set forth ten general prohibitions, listed in the
proposed regulations at Secs. 734.2(b)(1)-(10). The CCL in Part 774 and
the Country Chart in Part 738 when taken together define the scope of
General Prohibitions One (Exports and Reexports in the Form Received),
Two (Parts and Components Reexports), and Three (Foreign Produced
Direct Product Reexports). General Prohibitions Four through Ten are
not so limited, these general prohibitions apply to all items subject
to the EAR unless otherwise specified, and these general prohibitions
apply to all items subject to the EAR whether or not listed on the CCL.
BXA especially invites substantive comments concerning the controls
on foreign produced direct products of U.S. technology and software
provided at General Prohibition Three. The term ``duties'' is used in
the proposed regulation to mean responsibilities. One early comment
suggested that some readers might confuse this with the term ``duties''
meaning a tax on the importation of items. BXA invites comments on the
use of the term.
Part 736--Steps You May Follow in Determining Your Licensing
Requirements
Part 736 would provide a logical step-by-step path exporters and
reexporters may follow in discerning their license requirements and
prohibitions under the EAR. These steps would explain the relationship
among the scope of the EAR, the general prohibitions, the License
Exceptions, and other chapters of the EAR. BXA is considering the
possibility of merging the text regarding steps into the introductory
portions of the ``General Prohibitions'' chapter (Part 734). BXA
invites specific comments on such a reorganization. [[Page 25270]]
Part 738--Commerce Control List and the Country Chart
BXA maintains the Commerce Control List (CCL), located in
Supplement No. 1 to Part 774, which includes listed items subject to
the EAR. Individual items are identified on the CCL under an Export
Control Classification Number (ECCN).
An ECCN contains several items of information that the exporter and
reexporter must have in order to determine whether a license is
required by the CCL for a particular item. As revised by the proposed
rule, the ``License Requirements'' section of each ECCN contains two
columns entitled ``Controls'' and ``Country Chart''. The ``Controls''
column lists 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 items requiring licenses
for a greater number of countries and/or items are listed first. The
``Country Chart'' column identifies, for each applicable Reason for
Control, a column name and number. This column information is used in
the Country Chart to identify the list of countries requiring a
license.
The proposed rule also adds a ``License Alternatives'' section to
each ECCN. The ``License Alternatives'' section identifies ECCN-driven
alternatives to applying for a license and a brief eligibility
statement for each. The alternatives consist of ECCN-driven License
Exceptions (Part 740) and the Special Comprehensive License (Part 752).
The information in this section is provided to assist in deciding which
alternative related to a particular item and destination would be
explored prior to submitting an application for a license to BXA. This
section would be consulted only AFTER an exporter or reexporter has
determined that a license is required based on an analysis of the ECCN
and the Country Chart.
The proposed rule also introduces the Commerce Country Chart
(Country Chart). The Country Chart, located in Supplement No. 1 to Part
738, contains licensing requirements based on the export's destination
and ``Reason for Control.'' In combination with the CCL, the Country
Chart allows an exporter and reexporter to refer to one place in the
EAR and determine whether a license is required for the export or
reexport of any item on the CCL to any country in the world.
Part 740--License Exceptions
Part 740 of the proposed rule provides for exceptions from license
requirements similar to many of the general licenses contained in the
current regulations. It consolidates exceptions into one chapter; the
current regulation deals with commodities in one chapter and technology
and software in another. This Part also organizes the exceptions in
more transaction-oriented groupings, e.g., all exceptions dealing with
parts are included in License Exception PTS. License Exceptions
contained in this Part of the proposed rule permit the export or
reexport without a license required by the CCL provided the conditions
for the use of the License Exception are met.
Eligibility for a License Exception would be based upon the item to
be exported or reexported, the country of ultimate destination, the
end-use of the item, and the end-user. If a License Exception is
available, the exporter or reexporter may proceed with the export or
reexport without a license. However, the exporter and reexporter would
be required to meet all the terms and conditions required by the
License Exception for the export or reexport to be authorized without a
license. By using a License Exception, the exporter or reexporter would
be self-certifying that all terms, conditions, and provisions for the
use of that License Exception have been met. Including the appropriate
License Exception symbol on the Shippers Export Declaration, e.g.,
``TMP'' for temporary exports, would constitute such a certification.
Items that are listed on the CCL but do not require a license by
reason of the Country Chart at Part 738 must be certified by entering
the symbol ``NLR'' in the appropriate place on the Shippers Export
Declaration. This constitutes representations of the exporter that the
listed item does not require a license under General Prohibitions One
(Exports and Reexports in the Form Received), Two (Parts and Components
Reexports), and 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.
BXA solicits comments on the incorporation of proliferation
controls into License Exceptions. Many General Licenses and Permissive
Reexports originally focused on national security controls. BXA would
like public input on the extent to which proliferation concerns have,
or have not, been addressed by License Exceptions.
Part 742--Control Policy--CCL Based Controls
This Part contains licensing review policies and certain
requirements for all items listed on the CCL. It consolidates most of
current Part 785, and substantial portions of Parts 776 and 778. In
addition to providing the license policies and certain license
requirements, it notes any contract sanctity dates that may have been
established for particular export or reexport control programs and
describes any multilateral cooperation in particular export or reexport
control programs.
The proposed regulation tracks the reasons for control listed in
the Country Chart by providing the licensing policy for every column on
the chart. In addition, this Part includes two control policies for
items included on the CCL, but not reflected in the Country Chart; it
includes provisions for supercomputers and communications intercepting
devices.
This proposed rule, consistent with the National Defense
Authorization Act (NDAA) for fiscal year 1993 entitled the ``Iran-Iraq
Arms Non-Proliferation Act of 1992'', would codify the current
statutory policy of denial for all items that require a license for
Iran. The reader should note that additional unilateral trade
restrictions on Iran are currently under review within the
Administration.
The reader should also note that controls for Libya are currently
under review within the Administration.
This proposed rule would reflect the Secretary of State's 6(j)
determination of August 12, 1993, that the Government of Sudan has
repeatedly provided support for acts of international terrorism. This
rule would also reflect the Acting Secretary of State's determination
of December 28, 1993, that five categories of multilaterally controlled
items would be controlled under section 6(j). License applications for
the following items would be reviewed under the 6(j) procedures:
All items subject to national security controls, except national
security controlled digital computers with a Composite Theoretical
Performance (CTP) of 500 Million Theoretical Operations Per Second
(MTOPS) or less. Such items will generally be denied if destined to a
military end-user or for military end-use. Applications for non-
military end-users or end-uses will be considered on a case-by-case
basis;
All items subject to chemical and biological weapons proliferation
controls. Such items will generally be denied;
All dual-use items subject to missile proliferation controls. Such
items will generally be denied;
All items subject to nuclear weapons proliferation controls. Such
items will generally be considered on a case-by-case basis;
and [[Page 25271]]
All military related items (items controlled by the Commerce
Control List (CCL) entries ending with the number 18. Such items will
generally be denied.
This proposed rule does not reflect these 6(j) controls for Sudan
on either the Country Chart or on the CCL. However, they will be
incorporated into the final rule.
Additional unilateral trade restrictions under 6(a) for Sudan are
currently under review within the Administration.
This Part would not include controls and licensing policies that
apply to exports and reexports to embargoed destinations and additional
controls under the EAR implementing U.N. sanctions. Currently, the
embargoed countries include Cuba, Libya, North Korea, the Federal
Republic of Yugoslavia (Serbia and Montenegro), and Iraq. An exporter
or reexporter seeking to export or reexport items to these countries
should first review Part 746, Embargoes and Other Special Controls.
Additionally, this Part would not address controls and licensing
policies for items controlled for ``short supply'' reasons. These would
be covered in Part 754, Short Supply Controls.
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 would prohibit exports and reexports of items subject to the
EAR, without a validated license, if at the time of the export or
reexport you know or have reason to know, that the item will be used in
nuclear explosive, or other safeguarded or unsafeguarded, nuclear
activities. Section 744.3 would prohibit the export or reexport,
without a validated license, of certain items to be used for missile
end-uses. Similarly, section Sec. 744.4 would prohibit the export or
reexport of items with certain chemical and biological weapon end-uses.
Next, Sec. 744.5 would prohibit the export or reexport of items to be
used for specified nuclear maritime end-uses. Finally, Sec. 744.6 would
place restrictions on certain proliferation-related activities of U.S.
persons. For purposes of this prohibition the term ``U.S. person''
would mean citizens, permanent resident aliens, or protected
individuals as defined in the immigration laws; any judicial person
organized under the laws of the United States or any U.S. jurisdiction;
and any person physically in the United States.
This part would also contain prohibitions against exports,
reexports, and certain transfers to specified end-users.
Part 746--Embargoes and Other Special Controls
Part 746 of the proposed regulations contains all the control
requirements that apply to embargoed destinations, including Cuba, the
Federal Republic of Yugoslavia (Serbia and Montenegro), Iraq, Libya,
and North Korea. It also contains the control requirements implementing
U.N. sanctions that result in additional EAR controls on certain
countries, such as Rwanda.
In addition, Part 746 would add provisions to reflect current
policy on exports and reexports to Cuba of medical items and
telecommunications equipment, and reexports to Libya of items covered
by United Nations Resolutions. This Part also would include new
Department of Commerce license requirements that codify existing United
States policy implemented by the Treasury Department for exports and
reexports to Iraq. It would also reflect current policy by clarifying
certain eligibility requirements for the Humanitarian License
Procedure. BXA is considering eliminating the Humanitarian License
Procedure, and would therefore be particularly interested in comments
on its usefulness. Finally, this Part would include 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 process for applying for a classification
request, advisory opinion, or a license. All such requests and license
applications (for both exports and reexports) would be submitted on a
new form, BXA-748P. The BXA-748P would replace the BXA-622P and the
BXA-699P. The Form BXA-648P has been eliminated along with the Form
BXA-685P. Form BXA-648P was used for notification of Delivery
Verification requirement, while Form BXA-685P was required for certain
amendments to outstanding licenses. When this rule becomes final, with
certain exceptions, exporters and reexporters would now be required to
submit a new license application when requesting modification to an
outstanding license.
This change would allow BXA to ensure a complete electronic record
is maintained of all licenses, classification requests, and advisory
opinions. Instructional information contained on Form BXA-648P has been
incorporated into the text of the regulations. BXA would notify
exporters of the requirement for a Delivery Verification directly on
the license, instead of a separate piece of paper. No changes have been
made to the structure of the requirement.
The requirement for exporters to obtain Form BXA-629P from their
purchaser and consignees would be modified under this proposed rule.
BXA would permit you to obtain either a new Form BXA-711 or a letter
with the same certifications that appear on the new Form BXA-711. The
new Form BXA-711 would be a one-sided redraft of the current Form BXA-
629P.
Items currently captured by the current basket categories, i.e.,
ECCNs ending in the letter ``G,'' will remain subject to the EAR as
defined in Part 732 in this proposed rule even though they are not
listed on the CCL at Part 774. For such items, BXA will respond to a
classification request by indicating that though they are subject to
the EAR, they are not listed in the CCL. This will be noted by the
symbol ``NOL'', which means the items are ``not on the list'' but are
subject to the EAR. For items listed on the CCL under this proposed
rule, BXA will continue to respond to classification requests by
indicating the appropriate ECCN. Under this Part 748 of the proposed
regulation, unless items are subject to General Prohibitions Four
through Ten, you need not apply for a license to export or reexport
such items that are not on the list (NOL).
BXA specifically invites comments on the question of how BXA should
respond to classification requests for items that are not listed on the
CCL but that are subject to the EAR. Does the designator ``NOL''
appropriately replace the current ECCNs ending in the letter ``G''?
Should this be the appropriate entry for the Shippers' Export
Declaration (SED) as proposed? Readers should note that this topic is
related to the proposed requirement to indicate ``NLR'' on the SED for
listed items that do not require a license to the specific country of
destination as indicated on the Country Chart.
A Supplement No. 4 to Part 748 would be added. This supplement
would replace current Part 768. There are no revisions at this time to
the existing text contained in this Part, which is being incorporated
into this proposed rule by reference. The current Part 768 is at 15 CFR
768, and you may obtain a copy of Supplement No. 4 to Part 748 by
downloading it electronically from FedWorld via Internet or through
your modem by dialing (703) 321-3339. This service is
[[Page 25272]] free, except for long distance telephone charges and any
standard charges you already incur for the use of the Internet or other
commercial online service. The current Antiboycott Regulations are not
on FedWorld.
Part 750--License Processing
Part 750 describes the processing procedures of any application
submitted to BXA, whether for a classification request, advisory
opinion, or a license. In addition to procedures specific to each type
of application, time frames (established in the draft 1994 Export
Administration Act bill) associated with each are provided. This part
also would provide a clear description of the interagency dispute
resolution process and the interrelationship between all agencies and
departments reviewing license applications. All aspects of license
issuance would be addressed including, actual issuance of the license,
validity periods, transfers, revocations, suspensions, and shipping
tolerances.
The licensing processing procedures remain under review within the
Administration and will be the subject of a separate Federal Register
notice once a final policy is completed.
Validity periods for the various types of licenses would be
synchronized. The new validity period for all licenses (except those
issued for items subject to short supply controls, or those processed
under emergency handling procedures) would be 2 years. This alignment
would result in a validity period for all reexport and parts and
components licenses, and an increase in the validity period for
licenses authorizing temporary exports of items.
Part 752--Special Comprehensive License
Part 752 describes the provisions of the Special Comprehensive
License (SCL). The SCL would consolidate the activities currently
authorized under the Project, Distribution, Service Supply, Service
Facilities, and Special Chemical Licenses and would provide for
additional flexibility to BXA in shaping appropriate SCLs and internal
control programs. For example, the Project and Service Supply Licenses
currently authorize exports and reexports to countries of the former
Soviet Union, Eastern European, and the People's Republic of China
(PRC), but the Distribution License, which includes an extensive
mandatory Internal Control Program that is not required for the Project
License and the Service Supply Procedure, does not allow exports and
reexports for distribution in these same countries. The SCL would also
conform item and country eligibility.
All items subject to the EAR would be eligible for export and
reexport under the SCL, except:
Items identified by the letters MT in the ``Reason for Control''
paragraph on the Commerce Control List (CCL);
Biologicals, or equipment and materials that can be used in the
production of biologicals (items identified under ECCNs 1C61, 1B71,
1E61, and 1E70);
Communication intercepting devices identified under ECCN 5A80 on
the CCL;
Chemicals and chemical equipment and materials that can be used in
the production of chemical weapons to destinations listed in Country
Group D:3; (items identified under ECCNs 1C60, 1E60, 1B70, and 1D60);
Maritime (civil) nuclear propulsion systems or associated design or
production software and technology identified in Sec. 774.5;
Items specifically identified as ineligible by BXA on your approved
SCL, and
Additional items may be excluded consistent with multilateral
obligations.
Exports and reexports of items identified as NP in the ``Reason for
Control'' paragraph on the CCL will not generally be authorized under
an approved SCL for export or reexport to countries listed in Country
Group D:2.
All countries are eligible to receive exports and reexports under
the SCL except:
Countries designated by the Secretary of State that have repeatedly
provided support for acts of international terrorism (Cuba, Libya,
Iran, Iraq, North Korea, Sudan, Syria).
Countries listed in Country Group E; and
Other countries that BXA may declare on a case-by-case basis.
SCLs are designed to allow multiple exports and reexports of
controlled items. Because BXA does not review each individual
transaction covered by a SCL, parties to the SCL would be required to
have the mechanisms in place to ensure that each export and reexport
made under a SCL meets all the terms and conditions of the license, as
well as the EAR. It is through Internal Control Programs (ICPs) that
the Special Comprehensive License Holder (SLH) and the Special License
Consignee (SLC) assure that exports and reexports are not made contrary
to the national security, nonproliferation, and foreign policy
objectives of the EAR. ICPs are designed to provide that mechanism and
are a pre-requisite to approval of a SCL.
There are three levels, or examples, of ICPs provided for in Part
752. The elements of each ICP would reflect the complexity of the
activities authorized under the SCL, the countries involved, and the
relationship between the SLH and the approved consignees. A general
description of the elements of each of the three of ICPs is included,
as well as guidance on which ICP you would need to establish before
using the SCL.
To ensure that exports under the SCL do not jeopardize our national
security and foreign policy interests, BXA would review each
application for a SCL on a case-by-case basis, and may limit the scope
of eligible items, countries, end-users, and end-uses. In addition, BXA
may require inclusion in an ICP of any combination of elements from one
or more levels, depending upon the nature of each SCL request.
The provisions of this Part would also require participating
entities to audit their export control programs, and authorize BXA to
conduct systems reviews. These audits and review would ensure that the
exporter and any authorized consignees have fulfilled all the
requirements of the SCL, and that any exports and reexports made under
the SCL have not and will not jeopardize national security interests.
Part 754--Short Supply
This part would continue to implement the provisions of Section 7,
``Short Supply Controls'', of the Export Administration Act of 1979,
and similar provisions in other laws that are not based on national
security and foreign policy reasons. Provisions in this part include
controls and licensing policies on crude oil, petroleum products,
unprocessed western red cedar timber, and exports and reexports of
horses by sea. This part also would include certain License Exceptions
that would permit exports and reexports without a license of western
red cedar and petroleum products. Provisions in the current regulations
dealing with petitions for monitoring or controls on recyclable
metallic materials and registration of agricultural commodities would
be removed but would be incorporated in the EAR by reference.
The provisions concerning exports and reexports of crude oil and
petroleum products have been reorganized and revised for clarity.
Certain archaic provisions have been removed.
A recent final rule regarding certain exports of crude oil is not
incorporated into the draft rule, but it will be incorporated into the
final rule.
Part 756--Appeals
This part describes the procedures that would be applicable to
appeals [[Page 25273]] from administrative actions taken by BXA.
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 commodity.
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. The procedures for such an appeal would be unchanged from that
currently existing in the EAR.
Part 758--General Export Clearance Requirements
This part deals with requirements imposed on exporters and others
regarding the movement of items subject of the EAR out of the country.
The purpose of this part would be to ensure that the movement of items
subject to the EAR conforms to the requirements of the export license
or other authorization for their export. Under this proposed
regulation, certain items are subject to the EAR as defined in Part 732
even though they are not listed on the CCL at Part 774. If such items
are not subject to any of the ten general prohibitions, the symbol
``NOL'' must be entered in the appropriate place on the Shippers Export
Declaration.
Under this proposed rule, 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), and Three (Foreign Produced Direct Product
Reexports). If General Prohibitions Four through Ten also do not apply,
the symbol ``NLR'' must be entered in the appropriate place on the
Shippers Export Declaration. The term ``NLR'' represents exports of
listed items when no license is required.
BXA specifically invites comments on the use of the designators
``NOL'' and ``NLR'' for the SED. BXA currently feels that this
distinction allows a separate classification of ``NOL'' for items
currently in ECCNs ending in the letter ``G'', which items would not be
listed on the CCL in this proposed rule. This is the rationale for
distinguishing ``NOL'' from ``NLR'', which merely refers to an item on
the CCL that does not require a license to the specific destination in
a given export or reexport. One early comment suggested that the term
``NLR'' be the only entry required on the SED for both of these sets of
items. If BXA adopted such an approach, what would then be the best
alternative for classifying items subject to the EAR but not listed on
the CCL, i.e. items under current ECCNs ending in the letter ``G''?
This Part imposes specific responsibilities on the persons involved
in export or reexport transactions to ensure compliance with other
provisions of the EAR and of the Foreign Trade Statistics Regulations
(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.
Part 758 imposes specific responsibilities for assuring that
Shipper's Export Declarations, 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.
This proposed rule makes several changes to the existing rule. In
several instances the existing regulations require carriers to conform
their documents or their routing to statements made on Shipper's Export
Declarations. In recent years, more exceptions to the Shipper's Export
Declaration filing requirement have been created. This proposed rule
deals with the exceptions by requiring carriers to conform their
documents and routing to the Shipper's Letters of Instruction if there
is no Shipper's Declaration or to other written instructions if there
is no Shipper's Letter of Instruction.
This proposed rule does not contain some of the specific provisions
relating to who may sign the Shipper's Export Declaration, the status
and duties of forwarding agents, requirements for power of attorney
currently found in 15 CFR Secs. 786.3(d) & (e) which duplicate
provisions of the Foreign Trade Statistics Regulations.
This proposed rule replaces the terms ``commodity'' or
``commodities'' with the terms ``item'' or ``items'' in several places
to reflect coverage of technology and software under the EAR. The
Foreign Trade Statistics Regulations and the Shipper's Export
Declaration form still refer to ``commodity'' or ``commodities'', but
they are being reviewed by the Bureau of the Census for conforming
changes. For shipments where items requiring a license for export are
listed on the same Shipper's Export Declaration as items not requiring
an export license this proposed rule eliminates the requirement that
the person filling out the declaration place an asterisk next to the
items being shipped under a general license and replaces it with a
requirement that the license number and expiration date or symbol
authorizing export without a license be shown below the description of
the item. This change would make the EAR consistent with the
corresponding portions of the Foreign Trade Statistics Regulations
which require that the license number and expiration date or general
license symbol be shown below the commodity to which it applies.
Current regulations require an exporter whose shipment under a
validated export license is unloaded at an unscheduled stop to notify
the Office of Export Licensing of the proposed disposition of the
items. The proposed rule changes the term ``validated license'' to
``export license'' and requires the exporter to wait for a response
from the Office of Exporter Services before proceeding with the
disposition.
The proposed rule revises the destination control statements that
exporters must place on shipping documents to place other parties to a
transaction on notice of U.S. export control regulations. The revisions
make the destination control statements conform with the country groups
elsewhere in the proposed regulations instead of with the country
groups contained in the existing regulations. The revisions would also
make the destination control statements conform with the concept of
export licenses, License Exceptions and other authorizations (e.g. NOL
and NLR) rather than the concept of general licenses and validated
licenses.
Part 760--Restrictive Trade Practices or Boycotts
This Part would replace current Part 769. There are no revisions to
the existing text contained in this Part, which is being incorporated
into this proposed rule by reference. The current Part 769 is at 15 CFR
769, and you may obtain a copy of Part 760 by downloading it
electronically from FedWorld via Internet or through your modem by
dialing (703) 321-3339. This service is free, except for long distance
telephone charges and any standard charges you already incur for the
use of the Internet. The current Antiboycott Regulations are not on
FedWorld. [[Page 25274]]
Part 762--Recordkeeping
This part has been reorganized and restated to eliminate the
requirement that the regulated persons obtain BXA approval prior to
destroying original documents and replacing them with electronic,
magnetic, photographic or other images. It would set standards for
retrieving and legibility of such records. This part would also make it
clear that regulated entities may always keep the records that must be
kept pursuant to this part in the form in which that person receives or
creates it. In addition, this part would extend the recordkeeping to
five years to coincide with the applicable statue of limitations.
Part 764--Enforcement
Part 764 has been reorganized to deal primarily with violations and
sanctions. The description of sanctions has been broadened to state
that conduct which constitutes a violation of the EAA or EAR may also
be prosecuted under certain other sections of the United States Code
(Sec. 764.3(b)), and such violative conduct may be subject to statutory
or other sanctions or protective measures under the EAA or under other
statutory or regulatory provisions (Sec. 764.3(c)).
Provisions dealing with denial of export privileges would be
clarified so that almost all relevant information can be found in Part
764 of the EAR. Part 764 provisions are organized by violation
(Sec. 764.2(k)), description of sanction (Sec. 764.3(a)(2)) and terms
of a standard denial order (Supplement No. 1), and reference to the
Denied Persons List (Supplement No. 2). This method of organization
makes it easier for the world to understand how to comply with denial
orders.
The former frequently-used Sec. 787.6 violation of ``export,
diversion, reexport, transshipment'' has been replaced by the new
Sec. 764.2(a) violation entitled ``engaging in prohibited conduct.''
The formulation of the new violation is intended to take into account
the new EAR Part 734 - General Prohibitions, as well as to encompass
the former Sec. 787.6. It provides that no person may engage in any
conduct prohibited by, or refrain from engaging in any conduct required
by, the EAA, the EAR, or any order, license or authorization issued
thereunder.
The detailed provisions that set forth recordkeeping requirements
have been moved to Part 762, while the violation for failing or
refusing to comply with recordkeeping requirements appears in
Sec. 764.2(i), along with other defined violations.
Part 766--Administrative Enforcement Proceedings
Part 766 has been reorganized to remove descriptions of sanctions
available for violations, placing them instead in Part 764
(Enforcement), and to separate the procedures for imposing sanctions
for violations from the procedures for taking protective enforcement
measures (temporary denial orders and denial orders authorized by
Sec. 11(h) of the EAA). Further, this Part has been re-designed to
simplify and expedite proceedings, including the addition of sections
specifically authorizing interlocutory review of rulings by the Under
Secretary (Sec. 766.14) and permitting cases to be disposed of through
``summary decisions,'' such as through motions for summary judgment
(Sec. 766.8).
Significant changes would be made to simplify and clarify the
process by which cases are settled (Sec. 766.18). To avoid the
impression that settlements are in any way one-sided, BXA would
substitute the term ``settlement agreement'' for the term ``consent
agreement.'' Virtually all orders approving settlement agreements would
be entered by the Assistant Secretary for Export Enforcement, obviating
the need for Administrative Law Judge (ALJ) and Under Secretary review.
The proposal makes clear that cases can be settled even if they are
before the Under Secretary for decision, and codifies case law holding
that cases may be settled without a finding that violations occurred.
Finally, the proposed rule would add specific guidance that any
settlement relates only to claims at issue in the administrative
enforcement proceeding and has no impact on any criminal prosecution.
A new section (Sec. 766.23) would consolidate all procedures that
apply when naming or adding related persons to orders issued under Part
766. It codifies the current practice of permitting BXA to name related
persons when the order is first issued and continues BXA's authority to
add related persons to an order at a later date through a ``show
cause'' procedure. The proposal would also provide procedures whereby
related persons may appeal to the ALJ any finding that they are related
to the respondent.
Part 768--Foreign Availability Determination Procedures and Criteria
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 an export 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 goods or technology that would make a
significant contribution to the military potential of the controlled
country or combination of countries that would prove detrimental to the
national security of the United States.
There are two types of foreign availability, foreign availability
to a controlled country; and foreign availability to a non-controlled
country.
A foreign availability assessment is an evidentiary analysis that
BXA conducts to assess the foreign availability of a given item under
the assessment criteria. 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 or
approve the license in question, unless the President exercises a
National Security Override.
The procedures by which BXA would conduct a foreign availability
assessment, the criteria for control, and a National Security Override
would be unchanged from that currently existing in the EAR.
Part 770--Interpretations
This part would provide commodity, technology, and software
interpretations. These interpretations would clarify the scope of
controls where such controls are not readily apparent for the Commerce
Control List and from other provisions of the EAA.
Part 772--Definitions
This part would define terms as used in the Export Administration
Regulations. Many of the terms currently defined in the EAR would be
used in this part, including the addition of several new terms, such as
``export'', ``Advisory Committee on Export Policy (ACEP)'', ``Export
Administration Review Board (EARB)'', and other terms that would define
new concepts, such as ``License Alternatives''.
BXA is particularly interested in comments from the business
community on what terms they would like defined that are not already
included in this part.
Part 774--The Commerce Control List
Former Supplements 1, 2, and 3 to Sec. 779.1 (the Commerce Control
List, [[Page 25275]] General Technology and Software Notes, and
Definitions to the CCL, respectively) would become Supplements 1, 2,
and 3 to Part 774. Supplement No. 1 would be amended by removing the
references to ECCN's ending in the letter ``G'' (basket categories).
Such ECCNs would continue to remain subject to the EAR, even though
they would not appear on the CCL. In addition, Supplement No. 1 would
be amended by revising the ``Requirements'' section of each ECCN to
reflect the new structure of the EAR. The ``List of Items Controlled''
section and Supplement Nos. 2 and 3 would not be revised and will be
included with the publication of the final rule.
The current ``List of Items Controlled'' sections of each ECCN on
the CCL and Supplement Nos. 2 and 3 are at 15 CFR 779, and you may
obtain a copy of Part 774 by downloading it electronically from
FedWorld via Internet or through your modem by dialing (703) 321-3339.
This service is free, except for long distance telephone charges and
any standard charges you already incur for the use of the Internet.
Summary of Comments to the ANPRM
Rulemaking Requirements
1. For purposes of Executive Order 12866, this proposed rule has
been determined to be significant.
2. This proposed rule contains two new collections of information
subject to the requirements of the Paperwork Reduction Act, 44 U.S.C.
ch. 35. The new ``Multipurpose Application'' replaces the ``Application
for Export License'', ``Request for Reexport Authorization'', and the
``Request for Amendment Action'' forms. The ``Statement by Ultimate
Consignee and Purchaser'' form has also been revised. There is a new
``Special Comprehensive License'' which consolidates the procedures for
applying for the former project, distribution, service supply and
chemical licenses. All other collections of information contained in
the rulemaking have been previously approved by OMB. The public
reporting burdens for the new collections of information are estimated
to average 45 minutes for the Multipurpose Application and between 20
and 40 hours for the Special Comprehensive License. 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, Acting Director, Regulatory Policy Division, Bureau of
Export Administration, (202) 482-2440.
3. For purposes of Executive Order 12612, this proposed 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, 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.
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,
[[Page 25276]] 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.
Dated: April 10, 1995.
Sue E. Eckert,
Assistant Secretary for Export Administration.
For the reasons set forth in the preamble, Subchapter C, Chapter 7
of Title 15, Code of Federal Regulations is proposed to be amended as
follows:
1. Parts 730, 732, 734, 736, 738, 740, 742, 744, 746, 748, 750,
752, 754, 756 and 758 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 Boycott.
730.10 Caution.
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7429; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C 466(c); E.O. 12924.
Sec. 730.1 What these regulations cover.
These Export Administration Regulations (EAR) (15 CFR, subchapter
C, chapter 7) are issued by the Bureau of Export Administration (BXA)
of the United States Department of Commerce under laws relating to the
control of certain exports, reexports, and activity. 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.
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 Notices promulgating the EAR and at
the beginning of each Part of the EAR in the Code of Federal
Regulations. 15 CFR parts 730-774. 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 due to the failure to
enact a timely extension, 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 export licensing agencies. In general,
the term dual-use serves to distinguish EAR-controlled items that can
be used both in sensitive (e.g., military or nuclear) and other, non-
sensitive applications from those that are (a) weapons or military-
related in use or design and subject to the controls of the Department
of State (22 CFR parts 120 through 130) or (b) subject to the nuclear-
related controls of the Department of Energy or the Nuclear Regulatory
Commission (10 CFR part 110). 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 agencies mentioned in the preceding section that
license the export of nuclear and military-related items, there are
other agencies with jurisdiction over certain narrower classes of
exports. These include the Department of Treasury's Office of Foreign
Assets Control (OFAC) (31 CFR parts 500 through 590), which administers
controls against certain countries which are the object of sanctions
affecting not only exports, but also imports and financial dealings.
(Some OFAC regulations provide for the licensing by BXA of exports and
reexports which are permitted as exceptions to the embargo.) For your
convenience, the list that follows identifies agencies with regulatory
jurisdiction over certain types of exports and reexports. This is not a
comprehensive list, and the brief descriptions are intended are only
generally indicative of the types of controls administered and/or
enforced by each agency.
Defense Services and Defense Articles
Department of State, Office of Defense Trade Controls, Tel. (703)
875-6644, 22 CFR parts 120 through 130
Foreign Assets and Transactions Controls
Department of Treasury, Office of Foreign Assets Control, Tel. (202)
622-2420, 31 CFR parts 500 through 590
Narcotics, Dangerous Drugs, Processing Equipment
Drug Enforcement Administration, Tel. (703) 307-1000, 21 CFR parts
1311 through 1313
Natural Gas and Electric Power
Department of Energy, Tel. (202) 586-1000, 10 CFR Part 305, 320
[reserved]; 18 CFR Part 34
Nuclear; Nuclear Materials, Reactor Vessels, Specially Designed
Commodities
Nuclear Regulatory Commission, Tel. (301) 492-7000, 10 CFR Part 110
Nuclear; Technical Data for Nuclear Weapons/Special Nuclear Materials
Department of Energy, Tel. (202) 586-5000, 10 CFR Part 810
Patent Filing Data Sent Abroad
Patent and Trademark Office, Tel. (703) 557-4636, 37 CFR 5.11; 15
CFR 732.3(b)(4) and 732.10
Watercraft
U.S. Coast Guard documented watercraft of 5 net tons or more--export
or transfer to foreign interest, U.S. Maritime Administration, Tel.
(202) 366-5807, 46 App. U.S.C. 808, 839
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, technology, and software (referred to
collectively in the EAR as ``items'') that have been exported from the
United States are generally subject to the EAR with respect to
reexport. Many such reexports, however, 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) Deemed exports. Certain actions that you might not regard as an
``export'' in other contexts do constitute an export subject to the
EAR. For example: the electronic transmission of non-public
[[Page 25277]] data that will be received abroad; the release of
technology to a foreign national in the United States through such
means as demonstration or oral briefing; shipments that might not be
deemed ``exports'' for other purposes, such as the return of foreign
equipment to its country of origin after repair in the United States or
shipments from a U.S. foreign trade zone.
(d) U.S. person activities. To counter the proliferation of weapons
of mass destruction, the EAR restrict the involvement of ``United
States persons'' (as defined in the EAR) 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 designated by reason of their support
of terrorist activity. The effectiveness of many of the controls under
the EAR is enhanced by their being maintained as part of a multilateral
system of controls. 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 includes
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. Most such activity
is permitted by one or more of the License Exceptions described in the
EAR, in which case no application need be made to BXA. In such a case,
reference to the pertinent License Exception is to be entered on the
Shipper's Export Declaration, a document that is to be submitted to the
Customs office at the port of export.
Sec. 730.8 How to proceed and where to get help.
(a) Self-help. 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. By referring next to part 736, Steps for Determining
Licensing Requirements, 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.
(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 Commerce Control List (contained in
Supplement No. 1 to part 774 of this subchapter) establishes precise,
objective, criteria. This, should, in most cases, enable the exporter
to ascertain control status. Broader, more subjective criteria would
leave exporters more dependent upon interpretations and rulings by BXA
officials. Moreover, much of the detail in the Commerce Control List is
derived from multilaterally adopted lists, and the specificity serves
to enhance the uniformity and effectiveness of international control
practices and to promote the ``level playing field.'' The detailed
presentation of such elements as licensing and export clearance
procedures enables exporters to find in one place what they need to
know to comply with pertinent requirements. Of special importance is
the detailed listing of License Exception criteria, as these enable an
exporter to determine quickly, and with confidence, that a transaction
can go forward 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, information on how to obtain forms
and publications, and information on training programs offered by BXA,
is available from the Office of Exporter Services through both its:
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, FAX number: (202) 482-3617.
and
Western Regional Office, U.S. Department of Commerce, 3300 Irvine
Avenue, Suite 345, Newport Beach, California 92660-3198, Telephone
number (714) 660-0144, FAX number (714) 660-9347.
Sec. 730.9 Boycott.
Part 760, Restrictive Trade Practices or Boycotts, implements the
antiboycott provisions of the EAA. There are also boycott-related rules
in section 999 of the Internal Revenue Code which deny tax benefits for
certain types of boycott-related agreements. The EAR prohibits certain
discriminatory or boycott-supporting conduct, including the furnishing
of information in a boycott context. The Internal Revenue Code
penalizes many of the same activities by denying the benefit of certain
tax code provisions otherwise available for foreign operations. The EAA
and Internal Revenue Code provisions are not completely parallel. Both
laws also require reporting of boycott-related requests. The Internal
Revenue Code, additionally, requires reports of operations in, with, or
related to a boycotting country or its nationals.
Sec. 730.10 Caution.
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. You should not take any
action based solely on what you read in this Part.
PART 732--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS
Sec.
732.1 Introduction.
732.2 Important EAR terms and principles.
732.3 Items subject to the EAR.
732.4 Foreign-made products subject to the EAR.
732.5 Activities of U.S. and foreign persons subject to the EAR.
732.6 Assistance available from BXA for determining licensing and
other requirements.
732.7 Publicly available.
732.8 Information resulting from fundamental research.
732.9 Educational information.
732.10 Patent applications.
732.11 Government-sponsored research covered by contract controls.
732.12 Exports involving Canada.
732.13 Exports from U.S. foreign trade zones. [[Page 25278]]
732.14 Intransit shipments through the United States.
732.15 Shipments to territories, possessions, dependencies, or
departments.
732.16 Effect on foreign laws and regulations.
Supplement No. 1 to Part 732--Questions and Answers--Technology and
Software Subject to the EAR
Supplement No. 2 to Part 732--Other Departments and Agencies With
Foreign Policy and National Security Based Controls
Supplement No. 3 to Part 732--Calculation of Values for De Minimis
Rules
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7429; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C 466(c); E.O. 12924.
Sec. 732.1 Introduction.
(a) This part sets forth the scope of the Export Administration
Regulations (EAR) (15 CFR, subchapter C, chapter 7). Specifically, this
part covers the following subjects:
(1) It explains the usage in the EAR of the terms ``subject to the
EAR,'' ``item,'' ``you,'' and ``export and reexport of technology and
software.'' (Sec. 732.2 of this part)
(2) It describes the kinds of items of U.S. origin that are subject
to the EAR (Secs. 732.3, 732.7, 732.8, 732.9, 732.10, and 732.11 of
this part). It also describes when foreign-made products are subject to
the EAR and sets forth specific guidance for determining whether
certain technology and software are subject to the EAR. (Sec. 732.4 of
this part)
(3) It describes the activities of U.S. persons and foreign persons
that are subject to the EAR. (Sec. 732.5 of this part)
(4) It notes that assistance to the public is available from BXA
for determining whether an item or activity is within BXA's
jurisdiction. (Sec. 732.6 of this part)
(5) It sets forth the special policies under the EAR that apply to
exports involving Canada. (Secs. 732.6 and 732.12 of this part)
(Sec. 748.3 of this subchapter)
(6) It describes how the EAR deal with exports from U.S. foreign
trade zones. (Sec. 732.13 of this part)
(7) It makes clear that items moving in transit through the United
States are subject to the EAR. (Sec. 732.14 of this part)
(8) It describes how the EAR deal with shipments to the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, and U.S. territories, dependencies, and possessions.
(Sec. 732.15 of this part)
(9) It makes clear that compliance with the EAR does not relieve
any responsibilities under foreign laws or regulations. (Sec. 732.16 of
this part)
(b) This part does not address any of the provisions set forth in
Part 760 of this subchapter, 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. 732.2 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 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 the
regulations in this subchapter. The items and activities subject to the
EAR are described in Sec. 732.2 through Sec. 732.5 of this part. You
should review the Commerce Control List 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. 732.6 of this part. Publicly available
technology and software not subject to the EAR are described in
Sec. 732.7 through Sec. 732.11 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
which maintain controls for national security and foreign policy
reasons (see Supplement No. 2 to Part 732) 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) Use of the term ``item''. The term ``item'' is used in the EAR
to mean ``commodities, technology, and software.'' The two terms are
used interchangeably. When the EAR intend to refer specifically to
commodities, technology, or software, the text will use the specific
reference.
(c) Use of the term ``you''. Unless otherwise indicated, the
prohibitions and duties under the regulations in this subchapter apply
to all persons and firms and the term ``you'' means any person,
including a natural person or a firm. Moreover, firms are responsible
for the acts of their employees and agents that violate the
prohibitions and duties imposed by the EAR; and persons acting as
employees or agents are also individually liable for such violations.
(d) Export and reexport of technology and software. (1) ``Export''
of technology or software means:
(i) An actual shipment or transmission of technology or software
out of the United States;
(ii) Any release of technology or source code 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 or reason to know a violation is about to occur is prohibited
by Sec. 734.2(b)(8) of this subchapter; or
(iii) Any release of technology or software of U.S.-origin in a
foreign country.
(2) ``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.
(3) ``Reexport'' of technology or software means an actual shipment
or transmission from one foreign country to another. In addition, any
release of technology or source code 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 (d)(2) 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. 734.2(b)(8) of this
subchapter. [[Page 25279]]
Sec. 732.3 Items subject to the EAR.
All U.S. origin items and certain foreign-made products as
described in Sec. 732.4 of this Part, are subject to the EAR, except
the following:
(a) Items that are exclusively controlled for export or reexport by
another department or agency of the U.S. Government which regulates
exports or reexports for national security or foreign policy purposes
(see Supplement No. 2 to part 742). For assistance in determining
whether an item is subject to the EAR, see Sec. 732.6 of this part. See
part 730 of this subchapter for a listing of other departments and
agencies that administer export and reexport controls.
(b) Technology and software that:
(1) Are already publicly available or will be made publicly
available as described in Sec. 732.7 of this part;
(2) Arise during or result from fundamental research, as described
in Sec. 732.8 of this part;
(3) Are educational, as described in Sec. 732.9 of this part;
(4) Are included in certain patent applications, as described in
Sec. 732.10 of this part; or
(5) Are classified by being assigned a security classification
(e.g., ``top secret,'' ``secret,'' or ``confidential'') by an officer
or agency of the U.S. government.1
\1\The export of classified technology and software is
controlled by the Center for Defense Trade of the U.S. Department of
State or the U.S. Department of Energy.
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Sec. 732.4 Foreign-made products subject to the EAR.
(a) Items subject to the EAR. The following are included among the
items that are subject to the EAR:
(1) U.S.-origin parts, components, materials, or other commodities
incorporated abroad into foreign-made products, in quantities exceeding
de minimis levels as set forth in paragraph (b) of this section;
(2) Certain foreign-made direct products of U.S. origin technology
or software, as set forth in Sec. 734.2(b)(3) of this subchapter. The
term ``direct product'' means the immediate product (including
processes and services) produced directly by the use of technology or
software; and
(3) Certain commodities produced by any plant or major component of
a plant that is a direct product of U.S. origin technology or software,
as set forth in Sec. 734.2(b)(3) of this subchapter.
(b) De minimis U.S. content. (1) There is no de minimis level for
the export from a foreign country of a foreign-made supercomputer
containing U.S. origin parts, components, or materials that are
controlled to the new destination.
(2) Except for supercomputers, for embargoed countries at part 746
of this subchapter and for countries named as terrorist-supporting
countries at part 744 of this subchapter the following are not subject
to the EAR:
(i) 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;
(ii) 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
(iii) 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.
(3) Except for supercomputers, for all other countries, the
following are not subject to the EAR:
(i) 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;
(ii) 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
(iii) 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.
(4) 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.
(5) You are responsible for making the necessary calculations to
determine whether the de minimis provisions apply to your situation.
See Supplement No. 3 to part 742 for guidance regarding calculation of
U.S. controlled content.
Sec. 732.5 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 set forth
in Sec. 744.6 of this subchapter.
(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 this subchapter.
Sec. 732.6 Assistance available from BXA for determining licensing and
other requirements.
(a) If you are not sure whether a commodity, technology, or
software, 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 to 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 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 set
forth in Sec. 748.3 of this subchapter.
Sec. 732.7 Publicly available.
(a) Information is made public and so becomes ``publicly
available'' 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 part 732, Questions A(1) through
A(6));
(2) Ready availability at libraries open to the public or at
university libraries (See Supplement No. 1 to part 732, Question A(6));
[[Page 25280]]
(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) 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 Part 732, Questions B(1)
through B(6)).
(B) Reserved.
(iii) ``Publicly available'' 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 Part 732, Questions A(1) and A(3)).
(b) Reserved.
Sec. 732.8 Information resulting from fundamental research.
(a) Fundamental research. Paragraphs (b) through (d) of this
section and Sec. 732.11 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 those
provisions 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 part 732, 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 this paragraph (b).
(``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 researches where the research results are subject to
prepublication review, is subject to the EAR. (See Supplement No. 1 to
part 732, 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) However, 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 part 732, Questions D(7) and D(9)).
(6) The provisions of Sec. 732.11 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
part 732, 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
part 732, 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. 732.11 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 part 732, Questions
D(8), D(9), and D(10)).
(3) Prepublication review by the company solely to ensure that
prepublication would compromise no patent rights will not be considered
a proprietary restriction for this purpose, so long as the review
causes no more than a temporary delay in publication of the research
results.
(4) However, the initial transfer of information from a business
entity to researchers is not authorized under the ``fundamental
research'' provision where the parties have agreed that the business
entity may withhold from publication some or all of the information so
provided.
(e) 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 part 732, Question D(8)).
Sec. 732.9 Educational information.
``Educational information'' referred to in Sec. 732.3(b)(3) 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. 732.8(b) of
this part. (See Supplement No. 1 to part 732, Questions C(1) through
C(6)).
Sec. 732.10 Patent applications.
The information referred to in Sec. 732.3(b)(4) of this part is:
[[Page 25281]]
(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;2 or
\2\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.
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(3) 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. 732.11 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. 732.3(b)(2) 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 part 732,
Questions E(1) and E(2).)
Sec. 732.12 Exports involving Canada.
(a) Exports of items to Canada are subject to the EAR.
(b) Recognizing the special relationship between the United States
and Canada, the general policy under the EAR is to permit most
shipments of items to Canada for consumption or use in that country
without a license.
(c) When the items leaving the United States will transit Canada or
are intended for reexport from Canada to another foreign destination
and such shipment would require a license if made directly from the
United States to that destination, a license is required under the EAR.
The licensing policy will be based on the policy applicable to a direct
shipment from the United States to such other destination. Please see
Sec. 758.1(d) of this subchapter for special documentation provisions
that apply to exports from the United States that transit Canada.
Sec. 732.13 Exports from U.S. foreign trade zones.
(a) Items exported from U.S. foreign trade zones are subject to the
EAR.
(b) EAR licensing requirements apply to items originating in the
United States and located in a foreign trade zone, as well as foreign
origin items that, as a result of processing, manufacturing, or
assembly while in a U.S. foreign trade zone, have been so altered that
they have either been substantially enhanced in value or have lost
their original identity with respect to form.
(c) Shipments of items of foreign origin that have not been altered
as described in paragraph (b) of this section, for which no customs
entry has been made and that enter a U.S. foreign trade zone may be
exported from the foreign trade zone without a license, except the
following:
(1) Exports to Country Group D:1 and E:2 (see supplement No. 1 to
part 740 of this subchapter), if a shipment of similar items of U.S.
origin could not be made from the customs territory of the United
States to such a destination without a license. Items of Canadian
origin require a license only if the shipment of the items would
require a license to virtually all destinations, including Country
Group B, if exported directly from the United States.
(2) Items shipped to the United States under International Import
Certificates, Form BXA 645P/ATF-4522/DSP-53, in accordance with the
procedure described in Supplement No. 4 to part 748 of this subchapter.
(3) The export and reexport of any commodity listed in Part 754,
Short Supply, as requiring a license if the commodity were exported
from the custom territory of the United States.
(d) Commodities of U.S. or foreign origin disposed of by the U.S.
Government under a foreign excess property disposal program that enter
a U.S. foreign trade zone without a customs entry require a license if
the same shipment would require a license if the export were made
directly from the customs territory of the United States.
Sec. 732.14 Intransit shipments through the United States.
(a) Items moving intransit through the United States are subject to
the EAR.
(b) Items shipped on board a conveyance and passing through the
United States in transit from one foreign country to another do not
require a license under the EAR provided that:
(1) While passing its transit through the United States, such items
have not been unladen from the conveyance on which they entered; and
(2) They are not originally manifested to the United States.
(c) If you determine that an item moving intransit through the
United States requires a license under the EAR, see Sec. 740.8 of this
subchapter, Exception 6, Exports of Items Temporarily in the United
States (TUS), for a description of specific exceptions to licensing
requirements for intransit shipments.
Sec. 732.15 Shipments to territories, possessions, dependencies, or
departments.
(a) Shipments to Puerto Rico, the Mariana Islands and U.S.
territories, dependencies, and possessions. The EAR do not require a
license or other authorization for shipments from the United States to
the Commonwealth of Puerto Rico, or the Commonwealth of the Northern
Mariana Islands or any territory, dependency, or possession of the
United States as listed in Schedules C & E, Classification of Country
and Territory Designations for U.S. Export Statistics, issued by the
Bureau of the Census.
(b) Shipments to the territories, possessions, or departments of
other destinations. There are a number of destinations that are not
listed in the Commerce Country Chart contained in Supplement No. 1 to
Part 738 of this subchapter, or in the Country Groups contained in
Supplement No. 1 to part 740 of this subchapter. If your destination is
not listed on the Commerce Country Chart or in the Country Groups and
such destination is a territory, possession, or department of another
country, the EAR accords your proposed destination the same licensing
treatment as the country to 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 Commerce Country Chart and in the Country Groups.
[[Page 25282]]
Sec. 732.16 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--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 software] 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. 732.3 and 732.7 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. 732.8 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. 732.7(d)(3) 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. 732.7(a) 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 destination 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 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. 732.8 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. 732.7(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. 732.7(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. 732.7(d)(2)(i) 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. 732.7(d)(3) 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 [[Page 25283]] teaching laboratories of
academic institutions is not subject to the EAR. (Sec. 732.9 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. 732.9 of this part because your
proprietary business does not qualify as an ``academic institution''
within the meaning of Sec. 732.9 of this part. Conceivably, however,
the instruction might qualify as ``release at an open * * * seminar,
* * * or other open gathering'' under Sec. 732.7(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. 732.8 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. 732.8(b) of this part). Information arising during
or resulting from such research is not subject to the EAR
(Sec. 732.3(b)(2) 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.''
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. 732.8 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. 732.8 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. 732.8(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. 732.8(d) of this part)
Question D(11): I work as a researcher at a Government-owned,
contractor-operated [[Page 25284]] 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. 732.8(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. 732.8 of this part. Is the information arising during or
resulting from this sponsored research subject to the EAR?
Answer: Under Sec. 732.11 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. 732.8 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. 732.8 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\1\
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?
\1\Exporters should note that these provisions do not apply to
software controlled under the International Traffic in Arms
Regulations (e.g., certain encryption software).
---------------------------------------------------------------------------
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.
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. 732.7 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?
[[Page 25285]]
Answer: (1) Assume each of the following:
(i) Information is uploaded to an electronic bulletin board by a
person that is the owner or originator of the information;
(ii) That person does not charge a fee to the bulletin board
administrator or the subscribers of the bulletin board; and
(iii) The bulletin board is available for subscription to any
subscriber in a given community regardless of the cost of
subscription.
(2) 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 732--Other Departments and Agencies With
Foreign Policy and National Security Based Controls
(a) Department of State. Regulations administered by the Office
of Defense Trade Controls within the Center for Defense Trade, U.S.
Department of State, govern the export and reexport of defense
articles and defense services on the U.S. Munitions List included in
the International Traffic in Arms Regulations (ITAR) (22 CFR part
121). These regulations are issued under the authority of section 38
of the Arms Export Control Act (22 U.S.C. 2778).
(b) Treasury Department, Office of Foreign Assets Control
(OFAC). Regulations administered by OFAC implement broad controls
and embargoes transactions with certain foreign countries, which
include controls on exports and reexports, as appropriate to such
countries (31 CFR part 500). These regulations are issued under a
grandfather provision in the Trading With the Enemy Act for Cuba and
North Korea (50 U.S.C. App. Section 1 et seq.), and under the
International Emergency Economic Powers Act for other countries (50
U.S.C. Section 1701, et seq.)
(c) 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). These
regulations are issued under the authority of the Atomic Energy Act
of 1954, as amended (42 U.S.C. Part 2011 et seq.).
(d) 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). These
regulations are issued under the authority of the Atomic Energy Act
of 1954, as amended (42 U.S.C. Part 2011 et seq.).
(e) 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.
Supplement No. 3 to Part 732--Calculation of Values for De Minimis
Rules
Use the following guidelines in determining values for
establishing exemptions or for submission of a request for
authorization:
(a) U.S. content value.
(1) 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.)
(2) In calculating the U.S. content value, do not include parts,
components, or materials that could be exported from the United
States to the new country of destination without a license or
License Exception GBS.
(b) The foreign-made product value is the normal selling price
f.o.b. factory (excluding value added taxes or excise taxes).
PART 734--GENERAL PROHIBITIONS
Sec.
734.1 Introduction.
734.2 General prohibitions and determination of applicability.
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7429; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C 466(c); E.O. 12924.
Sec. 734.1 Introduction.
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 part 734
and the License Exceptions set forth in part 740 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 this subchapter regarding recordkeeping and clear your export
through the U.S. Customs Service as described in part 758 of this
subchapter regarding export clearance requirements.
(a) In this part 734 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 five types of information and facts
or information described in Sec. 734.2(a) of this part and upon the
general prohibitions described in Sec. 734.2(b) of this part. Note that
the ten general prohibitions contain cross-references to other parts of
this subchapter that further define the breadth of the general
prohibitions, and, for that reason, part 734 is not freestanding. In
part 736, we provide certain steps you must follow in proper order to
understand the general prohibitions and their relationship to other
parts of this subchapter.
(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 this subchapter regarding
enforcement, you will be subject to any of the sanctions described in
that part.
Sec. 734.2 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) Destination. The country of ultimate destination for an export
or reexport (see parts 738 and 774 of this subchapter concerning the
country chart and the Commerce Control List);
(2) End-user. The ultimate end-user (see General Prohibition Four
(paragraph (b)(4) of this section) and parts 744 and 764 of this
subchapter for a reference to the list of persons you may not deal
with);
(3) End-use. The ultimate end-use (see General Prohibition Five
(paragraph (b)(5) of this section) and part 744 of this subchapter for
general end-use restrictions);
(4) Classification of the item. The classification of the item on
the Commerce Control List (see part 774 of this subchapter); and
(5) Conduct. Conduct such as contracting, financing, and freight
forwarding in support of a proliferation [[Page 25286]] project as
described in part 744 of this subchapter.
(b) General prohibitions. The following ten general prohibitions
proscribe certain exports, reexports, and other conduct, subject to the
scope of the EAR, you may not engage in unless you either have a
license from the Bureau of Export Administration (BXA) or qualify under
part 740 of this subchapter for a License Exception from each
applicable general prohibition below. The License Exceptions at part
740 of this subchapter 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 this subchapter concerning embargo
destinations and other special destinations.
(1) General Prohibition One--Export and reexport controlled items
to listed countries (Exports and Reexports in the Form Received). You
may not, without a license or License Exception, export or reexport any
item subject to the EAR to another country if each of the following is
true:
(i) The item is controlled for a reason indicated in the applicable
Export Control Classification Number (ECCN).
(ii) Export to the country of destination requires a license for
the control reason as indicated on the Country Chart at part 738 of
this subchapter. (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\
\1\The following export and reexport prohibitions are not
described on the Country Chart. The scope of this prohibition for
super computers and certain listening devices, and the country scope
for such controls is defined in the relevant ECCN. The prohibition
on exports and reexports and the related country scope for short
supply controls are in part 574 and relevant ECCNs. The prohibition
on exports concerning certain UN sanctions and other embargoes and
the related country scope of those controls are contained in part
746 and General Prohibition Six (paragraph (b)(6) of this section).
---------------------------------------------------------------------------
(iii) Each License Exception described at part 740 of this
subchapter supersedes General Prohibition One if all terms and
conditions of a given License Exception are met by the exporter or
reexporter.
(2) General Prohibition Two--Reexport and export from abroad
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. 732.4 of this subchapter 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 this
subchapter 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 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 this
subchapter).
(ii) Product scope of foreign-made items subject to prohibition.
(A) 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. 740.19
of this subchapter, and
(2) They are subject to national security controls as designated on
the applicable ECCN of the Commerce Control List at part 774 of this
subchapter.
(B) 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. 740.19 of this subchapter, 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 this subchapter.
(iii) License exceptions. Each License Exception described at part
740 of this subchapter 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--Engage 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 this subchapter, 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 this subchapter, 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 this
subchapter.
(ii) There are no License Exceptions described in part 740 of this
subchapter that authorize conduct prohibited by this General
Prohibition Four.
(5) General Prohibition Five--Export or reexport to prohibited end-
users or end-uses (End Use). You may not, without a license, export or
reexport any item subject to the EAR to an end-user of end-use that is
prohibited by part 744 of this subchapter.
(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 756
of this subchapter.
(ii) License Exceptions to this General Prohibition Six are
described at part 746 of this subchapter on Embargo Destinations and
Special Destinations [[Page 25287]] and unless a License Exception is
authorized in part 746 of this subchapter the License Exceptions at
part 740 of this subchapter are not available to overcome this general
prohibition.
(7) General Prohibition Seven--Support Proliferation Activities
(U.S. Person Proliferation Activity). If you are a U.S. Person as that
term is defined at Sec. 744.6 of this subchapter, you may not perform
any financing, contracting, service, support, transportation, freight
forwarding, or employment that you know will assist in certain
proliferation activities described further at part 744 of this
subchapter. There are no License Exceptions to this General Prohibition
Seven in part 740 of this subchapter unless specifically authorized in
that part.
(8) General Prohibition Eight--In transit shipments and items to be
unladen from vessels or aircraft (Intransit). (i) Unlading and shipping
in transit. If an item to be exported or reexported would require a
license to one of the countries listed in paragraph (b)(8)(ii) of this
section, you may not ship that item on an aircraft or vessel that will
be unladen in or that will move in transit through any of those
countries en route to some other destination unless a license
specifically authorizes such transshipment or unlading.
(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--Violate any order, terms, and
conditions (Orders, Terms, and Conditions). You may not violate the
orders, terms, or conditions of a license or of a License Exception
issued under or made a part of the EAR. There are no License Exceptions
to this General Prohibition Nine in part 740 of this subchapter.
(10) General Prohibition Ten--Proceed 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. Nor may you rely upon any license or
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 this subchapter.
PART 736--STEPS FOR DETERMINING LICENSE REQUIREMENTS
Sec.
736.1 STEP ONE: Publicly available technology and software.
736.2 STEP TWO: Ultimate country of destination and embargoed
countries.
736.3 STEP THREE: Persons denied export privileges.
736.4 STEP FOUR: Prohibited end-uses and end-users.
736.5 STEP FIVE: Classification.
736.6 STEP SIX: Reason for control and the Country Chart.
736.7 STEP SEVEN: Foreign-made items incorporating U.S.- origin
items and the de minimis rule.
736.8 STEP EIGHT: Foreign-produced direct product.
736.9 STEP NINE: Review the ``Know Your Customer'' guidance.
736.10 STEP TEN: Proliferation conduct of U.S. persons unrelated to
exports and reexports.
736.11 STEP ELEVEN: Review of order, terms, and conditions.
736.12 STEP TWELVE: Intransit.
736.13 STEP THIRTEEN: Review of the remaining general prohibitions
and License Exceptions.
736.14 STEP FOURTEEN: Miscellaneous duties.
736.15 Inapplicability of General Prohibitions.
736.16 Review of License Exceptions.
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7429; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C 466(c); E.O. 12924.
Sec. 736.1 STEP ONE: Publicly available technology and software.
Determine if your technology or software is publicly available as
defined and explained at part 732 of this subchapter concerning the
scope of the EAR.
(a) If your technology or software is outside the scope of the EAR,
then you may proceed with the export.
(b) If your technology or software does not qualify as publicly
available and is therefore within the scope of the EAR, you must
consider all of the general prohibitions as described in part 734 of
this subchapter.
(c) Supplement No. 1 to part 732 of this subchapter contains
several practical examples describing the scope of publicly available
technology and software that is outside the scope of the EAR. The
examples are illustrative, not comprehensive.
Sec. 736.2 STEP TWO: Country of ultimate destination and embargoed
countries.
Determine the country of ultimate destination. If your destination
for any item is an embargoed country or other country listed in part
746 of this subchapter, you may not make the export or reexport without
a license unless you are exporting only publicly available technology
or software or unless you qualify for a License Exception described in
part 746 of this subchapter concerning embargoed destinations. You may
not use a License Exception described at part 740 of this subchapter to
overcome General Prohibition 6 (Sec. 734.2(b)(6) of this subchapter)
unless it is specifically authorized in part 746 of this subchapter.
Sec. 736.3 STEP THREE: Persons denied export privileges.
(a) Determine whether your transferee, ultimate end-user, any
intermediate consignee, and any other party to a transaction is a
person denied export privileges. (See part 764 of this subchapter).
While it is not a violation of General Prohibition Four
(Sec. 734.2(b)(4) of this subchapter) to fail to check the Denied
Persons List prior to a transfer, it is nonetheless a per se violation
of the regulations in this subchapter to deal with a denied person in
any activity that is prohibited by the terms or conditions of a denial
order.
(b) There are no License Exceptions to General Prohibition Four
(end-user) (Sec. 734.2(b)(4) of this subchapter) concerning certain
end-users described in part 744 of this subchapter. The prohibitions
concerning persons denied export privileges may be overcome only by a
specific authorization from BXA, something that is rarely granted.
Sec. 736.4 STEP FOUR: Prohibited end-uses and end-users.
(a) Review the end-uses and end-users prohibited under General
Prohibitions Four (end-user) and Five (end-use) (Sec. 734.2(b)(4) and
(b)(5) of this subchapter) as described at part 744 of this subchapter.
(b) There are no License Exceptions to General Prohibitions Four
(end-user) and Five (end-use) (Sec. 734.2(b)(4) and (b)(5) of this
subchapter) described in part 740 of this subchapter.
Sec. 736.5 STEP FIVE: Classification.
(a) You must classify your items, 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
[[Page 25288]] relieve you of the duty to obtain a license.
(b) 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 this subchapter for procedures and
contact persons.
Sec. 736.6 STEP SIX: Reason for control and the country chart.
(a) Reason for control within the Export Control Classification
Number (ECCN). The applicable ECCN will indicate the reason or reasons
for control for items within that ECCN. For example, ECCN 6A07 is
controlled for both national security and missile technology reasons.
(b) Reason for control within the country chart. Once you determine
the reason for control from the proper ECCN, look up your country of
destination on the country chart.
(1) A check mark in the box or boxes for the relevant country and
reason(s) for control 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. 734.2(b)(1), (b)(2), and (b)(3) of this
subchapter).
(2) If one or more boxes have a check, a license is required unless
you qualify for a License Exception under part 740 of this subchapter.
If a box does not have a mark for your destination in one relevant
reason for control, a license is not required under the CCL and the
country chart unless another box is marked as requiring a license for
another reason for control identified in the appropriate ECCN.
(3) Additional controls may apply to your export. You must go on to
steps Seven and Eight described in Secs. 736.7 and 736.8 of this Part
to identify whether additional limits described in Sec. 734.2,
paragraphs (b)(2) (foreign made items incorporating U.S.-origin parts
and components) and (b)(3) (the foreign produced direct product of U.S.
technology and software) of this subchapter apply.
Sec. 736.7 STEP SEVEN: Foreign-made items incorporating U.S.-origin
items and the de minimis rule.
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 must 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:
(a) A 10% de-minimis level to embargoed and terrorist-supporting
countries; or
(b) A 25% de-minimis level to all other countries.
(c) For guidance on how to calculate the U.S. controlled content,
refer to part 732 of this subchapter.
Sec. 736.8 STEP EIGHT: Foreign produced direct product.
(a) 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. 734.2(b)(3) of this subchapter). Your
item is subject to this general prohibition if your transaction meets
each of the following conditions:
(1) 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
this subchapter) (reexports of foreign produced direct products
exported to other destinations are not subject to General Prohibition
Three);
(2) 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. 740.19 of this subchapter (reexports
of foreign produced direct products created with other technology and
software are not subject to General Prohibition Three); and
(3) 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
at part 774 of this subchapter (reexports of foreign produced direct
products not subject to national security controls are not subject to
General Prohibition Three).
(b) License Exceptions. Each License Exception described at part
740 of this subchapter overcomes this General Prohibition Three
(foreign produced direct product) if all terms and conditions of a
given exception are met by the exporter or reexporter.
Sec. 736.9 STEP NINE: Review the ``Know Your Customer'' Guidance.
License requirements under the regulations in this subchapter are
determined solely by the classification, end-use, end-user, ultimate
destination, and conduct of U.S. persons. Supplement No. 3 to part 744
of this subchapter is intended to provide helpful guidance regarding
the process for the evaluation of information about customers, end
uses, and end users.
Sec. 736.10 STEP TEN: Proliferation conduct of U.S. persons unrelated
to exports and reexports.
(a) First, review the scope of activity prohibited by General
Prohibition Seven (U.S. Person Proliferation Activity)
(Sec. 734.2(b)(7) of this subchapter) as that activity is described in
Sec. 744.6 of this subchapter. 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 in the form received),
Two (parts and components reexports), and Three (foreign produced
direct product reexports) (Sec. 734.2(b)(1), (b)(2), and (b)(3) of this
subchapter). Moreover, such activity extends to services and dealing in
wholly foreign-origin items in support of the specified proliferation
activity.
(b) Second, review the definition of ``U.S. Person.''
Sec. 736.11 STEP ELEVEN: Review of order, terms, and conditions.
Review the orders, terms, and conditions applicable to your
transaction. Terms and conditions are frequently contained in licenses.
In addition, the ten general prohibitions (Sec. 734.2(b)(1) through
(b)(10) of this subchapter) and the License Exceptions (part 740 of
this subchapter) 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.
Sec. 736.12 STEP TWELVE: Intransit.
Shippers and operators of vessels or aircraft should review General
Prohibition Ten to determine the countries in which you may not unladen
items or ship them intransit.
Sec. 736.13 STEP THIRTEEN: Review of the remaining general
prohibitions and License Exceptions.
After completion of Steps described in this part 736, and review of
all ten general prohibitions, including cross-referenced regulations in
this subchapter, you will know which, if any, of the ten general
prohibitions in [[Page 25289]] part 734 of this subchapter apply to you
and your contemplated transaction or activity.
Sec. 736.14 STEP FOURTEEN: Miscellaneous duties.
Sections 736.1 through 736.13 of this part are useful in
determining the license requirements that apply to you. Other portions
of the EAR impose other duties and requirements. Some of them are:
(a) Requirements relating use of a license in Sec. 758.2 of this
subchapter.
(b) Requirements pertaining to the preparation and use of a
Shipper's Export Declaration in Sec. 758.3 of this subchapter.
(c) Duties of carriers, forwarders, and exporters and others to
take specific steps and prepare and deliver certain documents to assure
that items subject to the regulations in this subchapter are delivered
to the destination to which they are licensed or authorized by a
License Exception or some other provision of the regulations in
Secs. 758.4 through 785.6 of this subchapter.
(d) Duty of Carriers to return or unload shipments at the direction
of U.S. Government officials (see Sec. 758.8 of this subchapter).
(e) Specific duties imposed on parties to special comprehensive
licenses by part 752 of this subchapter.
(f) Recordkeeping requirements imposed by Part 762 of this
subchapter.
(g) Part 764 requirements to disclose facts that may come to your
attention after you file a license application or make other statement
to the government concerning a transaction or proposed transaction that
is subject to the EAR.
(h) Certain duties imposed by Part 760 of this subchapter on
parties who receive requests to take actions related to foreign
boycotts and prohibits certain actions relating to those boycotts.
Sec. 736.15 Inapplicability of general prohibitions.
If none of the ten general prohibitions described in part 734 of
this subchapter apply to your export, reexport or conduct, you may
proceed without a license and you need not and should not examine part
740 of this subchapter for License Exceptions.
Sec. 736.16 Review of License Exceptions.
If any of the ten general prohibitions described in part 734 of
this subchapter apply, then you should determine whether there is a
License Exception at part 740 of this subchapter from those general
prohibitions or licensing requirements on the appropriate ECCN. In
considering these License Exceptions you need only qualify for any one
of them to rely upon that given License Exception for your transaction.
Moreover, you may rely upon any License Exception that authorizes your
transaction. Note especially that you should not assume that if you
cannot qualify for one License Exception you are unable to export or
reexport under another applicable License Exception. For example,
assume you do not qualify for License Exception 13: Operating
Technology and Software (OTD), and you plan to export maintenance
manuals to the United Kingdom. The manuals are classified under ECCN
4E94, and they are not subject to General Prohibition One (Exports and
Reexports in the Form Received). Under these circumstances and if you
are not subject to any of the nine other general prohibition, you may
export the maintenance manuals even though your export or reexport does
not qualify for any License Exception. This is so because your
transaction is not subject to any of the ten general prohibitions.
PART 738--COMMERCE CONTROL LIST AND THE COUNTRY CHART
Sec.
738.1 Introduction.
738.2 Commerce Control List structure.
738.3 Commerce Country Chart structure.
738.4 Determining whether a license is required.
Supplement No. 1--Commerce Country Chart
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7429; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C 466(c); E.O. 12924.
Sec. 738.1 Introduction.
(a) Commerce Control List scope. (1) The Bureau of Export
Administration (BXA) maintains the Commerce Control List (CCL) within
the Export Administration Regulations (EAR), which includes all 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 by another department or agency of
the U.S. Government. In instances where agencies other than the
Department of Commerce administer 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 this
subchapter. Supplement No. 2 to part 774 of this subchapter contains
the General Technology and Software Notes relevant to entries contained
in the CCL, and Supplement No. 3 to part 774 of this subchapter
contains definitions of terms used 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 all
items on the CCL (with two exceptions identified in Sec. 738.3(a) of
this part) to any country in the world.
Sec. 738.2 CCL structure.
(a) Categories. The CCL is divided into 10 categories, numbered as
follows:
1--Materials
2--Materials Processing
3--Electronics
4--Computers
5--Telecommunications and Information Security
6--Sensors
7--Avionics and Navigation
8--Marine Technology
9--Propulsion Systems and Transportation Equipment
0--Miscellaneous
(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. After you have identified the correct ECCN you should review the
List of Items Controlled to determine within which subparagraph(s) your
items are listed.
(d) Entries--(1)(i) 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., 3A01). The letter immediately following this first digit
identifies which of the five groups the item is listed under (e.g.,
3A01). The final two digits [[Page 25290]] differentiate the individual
entries and identify the type of controls that affect the item (e.g.,
3A01). The following list identifies the numbers associated with each
Reason for Control:
01-19 National Security, Regional Stability, Supercomputers
20-39 Missile Technology, Regional Stability
40-59 Nuclear Non-proliferation
60-79 Chemical and Biological Weapons
80-99 Other Controls, including Crime Control, Anti-terrorism, UN
Sanctions, Short Supply, etc.
(ii) 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, the entry
will have a number in the 01-19 range. If the item is controlled only
for Missile Technology the number will fall within the 20-39 range.
(2) Reading an ECCN. A brief description is provided next to each
ECCN. Following this description is the actual entry containing
``License Requirements'', ``License Alternatives'', and ``List of Items
Controlled'' sections. A brief description of each section and its use
follows:
(i) ``License Requirements''. This section contains two columns
entitled ``Controls'' and ``Country Chart''.
(A) The ``Controls'' columns lists 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 across the columns 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 Non-proliferation
RS Regional Stability
SC Supercomputers
SS Short Supply
UN United Nations Sanctions
(B) The ``Country Chart'' column 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.
(ii) ``License Alternatives''. This section identifies ECCN-driven
alternatives to applying for a license and a brief eligibility
statement for each. The information in this section is provided to
assist you in deciding which alternative related to your particular
item and destination you should explore prior to submitting an
application. This section should be consulted only AFTER you have
determined a license is required based on an analysis of the entry and
Country Chart. (See part 740 of this subchapter for a discussion of all
License Exceptions, or part 752 of this subchapter for a discussion of
the Special Comprehensive License.)
(iii) ``List of Items Controlled''. This section 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
instances where there are no items identified in the List of Items
Controlled, the entry controls only those items specifically identified
in the description next to the ECCN.
(A) Units of measure. Most measurements used in the CCL are
expressed in metric units with an inch-pound conversion where
appropriate. 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 between the metric and inch-pound figures, the
metric standard will be used for classification and licensing purposes.
Exceptions will have the inch-pound unit first with a metric conversion
(e.g., shotguns).
(B) The abbreviation ``n.e.s.''. Entries within the CCL may contain
the abbreviation ``n.e.s.'', meaning ``not elsewhere specified''. If an
item you intend to export is controlled by an entry containing
``n.e.s.'' in the description, you should not use that particular ECCN
until you have determined that no other entry specifically controls
that item.
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 attributed to your item,
if you need a license to export 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, the ECCN will send you directly to part 754
of this subchapter in order to determine whether a license is required
for your product to a specific destination and the licensing policy
relevant to these types of applications.
(2) Items controlled by ECCN 5A80. A license is required for all
destinations of items controlled under this ECCN. No License Exceptions
apply; accordingly, if your item is controlled by 5A80 you should
proceed directly to part 748 of this subchapter for license application
instructions and Sec. 742.13 of this subchapter for information on the
licensing policy relevant to these types of applications.
(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.
(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'' column 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. Part
742 of this subchapter describes the licensing policy associated with
each column on the Country Chart.
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. [[Page 25291]]
(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) With each of the applicable Country Chart Column Identifiers
noted, turn to the Country Chart (Supplement No. 1 to this part 738).
Locate the correct Country Chart column identifier on the horizontal
heading, and determine whether an ``X'' is marked in the box next to
the country in question.
(A) If yes, a license application must be submitted unless a
License Alternative applies. All applicable ECCN-driven ``License
Alternatives'' are identified in each entry. If the brief eligibility
statement contained in the ``License Exceptions'' line appears to cover
your transaction you should consult part 740 of this subchapter to
determine whether you can use a License Exception to effect shipment,
rather than applying for a license. Other License Exceptions, not
related to the CCL, may also apply to your transaction (See part 740 of
this subchapter).
(B) If no, a license is not required.
(iii) In situations where more than one Reason for Control applies,
repeat the step in paragraph (a)(2)(ii) for each Country Chart column
identifier noted in the step in paragraph (a)(2)(i).
(A) If an ``X'' is NOT found under any of the applicable columns, a
license application is not required.
(B) If an ``X'' is found under any of the applicable columns, and
no License Exception applies, a license application must be submitted.
Note: Though 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 will provide you with the information necessary 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.
(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 a particular item to a specific
destination using the CCL in combination with the Country Chart.
(2) Sample CCL entry.
2A00: ECCN Description.
License Requirements
Reason for Control: NP
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
License Alternatives
License Exceptions
LVS: $5,000
CSR: N/A
GBS: Yes
NSG: N/A
CIV: N/A
Special Comprehensive License: (To be determined in the final
rule).
List of Items Controlled
Unit: Equipment in number; parts and accessories in $ value.
(3) Sample analysis. After consulting the CCL I determine my item
is classified under ECCN 2A00. I read that the entire entry is
controlled for nuclear non-proliferation reasons, noting that the
appropriate Country Chart column identifier is NP Column 1. Turning to
the Country Chart, I locate my specific destination, India, and see
that an ``X'' appears in the NP Column 1 box for India. I understand
that a license is required, unless my transaction qualifies for a
License Alternative (i.e., License Exception or Special Comprehensive
License). Since I am not a Special Comprehensive License holder, I turn
directly to the License Exceptions described in part 740 of this
subchapter to determine whether a License Exception applies to my
particular item/destination combination.
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PART 740--LICENSE EXCEPTIONS
Sec.
740.1 Introduction.
740.2 Restrictions on all License Exceptions.
740.3 Shipments of Limited Value (LVS).
740.4 COCOM Successor Regime (CSR).
740.5 Shipments to Group B Countries (GBS).
740.6 Nuclear Suppliers Group (NSG).
740.7 Civil end-users (CIV).
740.8 Temporary exports (TMP).
740.9 Exports of items temporarily in the United States (TUS).
740.10 Parts (PTS).
740.11 Servicing and Replacement (S&R).
740.12 Baggage (BAG).
740.13 Aircraft and Vessels (A&V).
740.14 International safeguards (SAF).
740.15 Governments (GOV).
740.16 Gift parcels (GFT).
740.17 Operating Technology and Software (OTS).
740.18 Sales technology (STS).
740.19 Software updates (SUD).
740.20 General Software Note (GSN).
740.21 Technology and Software under Restriction (TSR).
740.22 Additional Permissive Reexports (APR).
Supplement No. 1 to Part 740--Country Groups
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7429; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 740.1 Introduction.
(a) Overview--(1) 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 otherwise require a license under
one or more of the Export Control Classification Numbers (ECCN) in the
Commerce Control List (CCL) in part 774 of this subchapter.
(2) Steps. If your export or reexport is subject to the EAR and is
subject to General Prohibitions One (Exports and Reexports in the Form
Received), Two (Parts and Components Reexports), or Three (Foreign
Produced Direct Product Reexports) in Sec. 732.2(b)(1), (b)(2), or
(b)(3) of this subchapter, consider the steps listed in this paragraph
(a)(2). If your export or reexport is subject to General Prohibitions
4, 5, 7, 8, 9, or 10, there are no available License Exceptions for
your export or reexport. If your export or reexport is subject to
General Prohibition 6 (Embargo), consult part 746 of this subchapter
for applicable License Exceptions.
(i) Step One--Applicability of General Prohibitions. Determine
whether any one or more of the general prohibitions described in
Sec. 734.2(b) of this subchapter 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 this License
Exceptions chapter. You are reminded of your recordkeeping obligations
and duties related to the clearance of the U.S. Customs Service
provided at parts 762 and 758 of this subchapter. If your export or
reexport is subject to General Prohibition 6 for embargoed
destinations, refer only to part 746 of this subchapter concerning
embargoed destinations to determine the availability of any License
Exception.
(ii) Step Two--Applicability of restrictions on all License
Exceptions. Determine whether any one or more of the restrictions in
Sec. 740.2 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.
(iii) Step Three--Terms and conditions of the License Exceptions.
If none of the restrictions in Sec. 740.2 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. You may meet the conditions for more than one
License Exception. Moreover, although you may not qualify for some
License Exceptions you may qualify for others. Review the broadest
License Exceptions first; and use any License Exception available to
you. You are not required to use the most restrictive applicable
License Exception. If you fail to qualify for the License Exception
that you first consider, you may consider any other License Exception
until you have determined that no License Exception is available.
License Exceptions TMP, TUS, PTS, S&R, BAG, A&V, SAF, GOV, OTS, and STS
authorize exports notwithstanding the provisions of the CCL. License
Exceptions LVS, CSR, GBS, NSG, CIV, and TSR are available only to the
extent specified on the CCL. This part 740 provides authorization for
reexports only to the extent each License Exception expressly
authorizes reexports. License Exception APR authorizes reexports only.
(iv) Step Four--Scope. Some License Exceptions are limited by
country or by type of commodity.
(A) 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. 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 6 for embargoed destinations, License Exceptions are only
available to the extent specifically provided in part 746 of this
subchapter concerning embargoed destinations.
(B) Special commodity controls apply to short supply items. No
License Exceptions in this part 740 may be used for items listed on the
CCL as controlled for Short Supply reasons. Exceptions for short supply
items are found in part 754 of this subchapter.
(v) Step Five--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 determine your recordkeeping and documentation
requirements at parts 758 and 762 of this subchapter.
(vi) Step Six--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.
(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 set forth in the EAR have been met. Please refer
to part 758 of this subchapter for clearance of shipments and
documenting the use of License Exceptions.
(c) Shipper's Export Declaration. A person exporting any item under
any License Exception must enter on any required Shipper's Export
Declaration (SED) the letter code (e.g., CIV, PTS) of the License
Exception. In the case of License Exceptions LVS, CSR, GBS and CIV the
ECCN of the item being exported must also be entered. Please refer to
Sec. 758.2 of this subchapter for the use of SEDs. 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. 732.2(b)(1), (b)(2), or (b)(3)
of this subchapter). If General Prohibitions Four through Ten
(Sec. 732.2(b)(4) through (b)(10) of this subchapter) also do not
apply, you must [[Page 25300]] clear exports of such items through the
U.S. Customs Service 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.
(d) Destination Control Statement. A person exporting any item
under any License Exception is required to enter an appropriate
Destination Control Statement on commercial documents in accordance
with the Destination Control Notice requirements of Sec. 758.5 of this
subchapter.
(e) 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 this subchapter.
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 766 of this
subchapter for a description of Denial Orders. See the Federal Register
for the text of any particular Denial Order.
(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 set forth and prohibited in part 744 of
this subchapter.
(5) The item is for surreptitious interception of wire or oral
communications as set forth in ECCN 5A80, unless you are a U.S.
Government agency (see Sec. 740.15, Governments (GOV)).
(6) The commodity you are shipping is a specially designed crime
control and detection instrument or equipment as described in
Sec. 742.7 of this subchapter and you are not shipping to Iceland, New
Zealand, or countries listed in Country Group A:1 (COCOM Successor
Regime) (see Supplement No. 1 to part 740), unless the shipment is
authorized under License Exception BAG, Sec. 740.12(e) (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 Shipments of Limited Value (LVS).
(a) Scope. A License Exception designated License Exception LVS is
established authorizing the export in a single shipment of eligible
commodities as described on the CCL.
(b) Eligible Destinations. This License Exception is available for
all destinations in Country Group B (see 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.
(c) Definitions--(1) Order. The term ``order'' as used in this
Sec. 740.5 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 presented for export under this License Exception.
(2) 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.
(3) 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.
(d) Additional eligibility requirements and restrictions--(1)
Eligible orders. To be eligible for this License Exception, orders must
meet the following criteria:
(i) Orders must not exceed the applicable ``LVS'' dollar value
limits. An order is eligible for shipment under this License Exception
(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.
(ii) 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.
(iii) 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.
(2) Restriction on annual value of LVS orders. Shipments of items
in a single ECCN on the CCL may not exceed 12 times the LVS value limit
for that ECCN per calendar year to the same ultimate consignee or
intermediate consignee. 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.
(3) 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 [[Page 25301]] dollar value limit specified for that
entry.
Example: An order includes commodities valued at $8,000. The
order consists of commodities controlled under two ECCN entries.
Commodities in the order controlled under one ECCN are valued at
$3,000 while those controlled under the other ECCN are valued at
$5,000. Since the net value of the commodities controlled under each
entry falls within the LVS dollar value limits applicable to that
entry, the order may be shipped under this License Exception.
(4) Prohibition against evasion of license requirements. Any device
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 (d)(1) (ii) and (iii)
of this section.
(e) 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.
Sec. 740.4 COCOM Successor Regime (CSR).
(a) Scope. A License Exception designated License Exception CSR is
established authorizing exports to eligible countries of all
commodities controlled for national security reasons, except those
specifically excluded by the CSR paragraphs on the CCL. Reexports of
additional commodities may be authorized by paragraph (d) of this
section. Exports may be made under this License Exception only when
intended for use or consumption within the importing country, reexport
among and consumption within eligible countries, or reexport in
accordance with other provisions of the EAR.
(b) Eligible countries. The countries that are eligible to receive
exports under this License Exception are the countries listed in
Country Group A:1 (COCOM Successor Regime) (see Supplement No. 1 to
part 740), as well as the cooperating countries indicated by footnote
to Country Group A. Note, however, that generally there is no license
requirement for shipments to Canada (see Sec. 732.12 of this
subchapter).
(c) Restrictions on commodities re-directed en route. Commodities
exported under the provisions of this section may not be re-directed en
route to a new country of destination without prior authorization from
BXA,unless the new ultimate country of destination is also an eligible
country under this License Exception.
(d) Reexports--(1) Reexports from Country Group A:1 (COCOM
Successor Regime) and cooperating countries. Reexports may be made from
Country Group A:1 (COCOM Successor Regime) or from cooperating
countries, provided that:
(i) The reexport is made in accordance with the conditions of an
export authorization from the government of the reexporting country;
(ii) The commodities being reexported are not controlled for
Nuclear Nonproliferation, Missile Technology or Crime Control reasons;
and
(iii) The reexport is destined to either:
(A) A country in Country Group B, Cambodia, or Laos and the
commodity being reexported is both controlled for national security
reasons and eligible for this License Exception; or
(B) 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.
(2) Reexports to and among Country Group A:1 (COCOM Successor
Regime) and cooperating countries. Reexports may be made to and among
Country Group A:1 (COCOM Successor Regime) and cooperating countries,
provided that eligible commodities are for use or consumption within a
Country Group A:1 (COCOM Successor Regime) (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:
(i) Supercomputers;
(ii) Commodities controlled for Nuclear Nonproliferation reasons;
and
(iii) Electronic, mechanical or other devices, as described in ECCN
5A80, primarily useful for surreptitious interception of wire or oral
communications.
Sec. 740.5 Shipments to Country Group B countries (GBS).
(a) Scope. A License Exception designated License Exception GBS is
established authorizing exports and reexports to Country Group B (see
Supplement No. 1 to part 740) of certain commodities controlled for
national security reasons.
(b) Eligible commodities. Eligible commodities identified by the
``GBS'' paragraph in the Requirements section of each entry on the CCL.
Sec. 740.6 Nuclear Suppliers Group (NSG).
(a) Scope. A License Exception designated License Exception NSG is
established authorizing exports and reexports to eligible countries of
commodities, software, and technology described below. Exports may be
made under this License Exception only when intended for use or
consumption within the importing country, reexport among and
consumption within eligible countries, or reexport in accordance with
other provisions of the EAR.
(b) Eligible countries. The countries listed in Country Group A:4
(Nuclear Suppliers Group) (see Supplement No. 1 to part 740) are
eligible for this License Exception. Note, however, that generally
there is no license requirement for shipments to Canada (see
Sec. 732.12 of this subchapter).
(c)(1) Eligible commodities, software, and technology. The eligible
commodities, software, and technology are indicated in the NSG
paragraph under the Requirements heading in applicable ECCNs on the
CCL. In addition, the following items are not eligible for this License
Exception:
(i) Items that are subject to missile technology controls; and
(ii) Items for export to Bulgaria, Romania, or Russia that are
controlled for national security reasons.
(2) In addition, for shipments to Russia under NSG, General
Prohibition 8 (transit) does not apply to commodities, software, and
technology that are not controlled for national security reasons.
(d) Reexports. Commodities, software and technology eligible for
this License Exception may be reexported to, among, and from countries
eligible for this License Exception, except:
(1) Reexports from countries other than those in Country Group A:1
of commodities, software or technology controlled for national security
reasons to destinations in Country Group D:1 (see Supplement No. 1 to
part 740); or
(2) Reexports to destinations in Country Group D:2 or E:2.
Sec. 740.7 Civil end-users (CIV).
(a) Scope. This License Exception, designated License Exception
CIV, authorizes certain exports and reexports as set forth in this
section.
(b) Eligibility. License Exception CIV is available only for
exports and reexports of certain specified items 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 and be considered on a case-by-case
basis. In addition to conventional military activities, military uses
include any proliferation activities described and prohibited in part
744 of this [[Page 25302]] subchapter. Retransfer to military end-users
or end-uses in eligible countries is strictly prohibited without prior
authorization. The items eligible for this License Exception are those
indicated on the CCL.
Sec. 740.8 Temporary exports (TMP).
(a) Scope. A License Exception designated License Exception TMP is
established authorizing the export and reexport of commodities and
software for temporary use abroad (including use in international
waters) subject to the conditions and exclusions described in 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.
(b) Eligible commodities and software. The following commodities
and software are eligible to be shipped under License Exception TMP:
(1) 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.)
(2) 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:
(i) The parts would qualify for shipment under License Exception
PTS if exported as one-for-one replacements;
(ii) The kits remain under effective control of the exporter or an
employee of the exporter; and
(iii) All parts in the kit are returned, except that one-for-one
replacements may be made in accordance with the requirements of PTS and
the defective parts returned.
(3) 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 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, the commodities and
software may be placed in a bonded warehouse or a storage facility
provided that the exporter retains effective control over disposition
of the commodities and software, pending movement to another site,
return to the United States or the foreign reexporter, or BXA approval
for other 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.
(4) Inspection and calibration. Commodities to be inspected,
tested, calibrated or repaired abroad.
(5) 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.
(6) Broadcast material. (i) Video tape containing program material
recorded in the country of export to be publicly broadcast in another
country.
(ii) Blank video tape (raw stock) for use in recording program
material abroad.
(7) 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.
(8) News media. (i) 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:
(A) Are retained under ``effective control'' of the exporting news
gathering firm;
(B) Remain in the physical possession of the news media personnel.
The term physical possession for purposes of this paragraph (b)(8),
news media, is defined as maintaining effective measures to prevent
unauthorized access (e.g., securing equipment in locked facilities or
hiring security guards to protect the equipment); and
(C) Are removed with the news media personnel at the end of the
trip.
(ii) When exporting under this section 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.
(iii) Commodities necessary for news-gathering purposes that
accompany news media personnel to all other destinations shall be
exported or reexported under paragraph (b)(1), tools of trade, of this
section if owned by the news gathering firm, or under Sec. 740.12,
License Exception BAG if they are personal property of the individual
news media personnel.
(Note: paragraphs (b)(1), tools of trade and (b)(8)(iii), news
media, of this section do not preclude independent ``accredited''
contract personnel, who are under control of news
[[Page 25303]] 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.)
(c) Special restrictions--(1) Destinations. (i) 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
(b)(8), news media, of this section;
(ii) No commodity or software may be exported under this License
Exception to Country Group D:1 (see Supplement No. 1 to part 740)
except:
(A) Commodities and software exported under paragraph (b)(8), news
media, of this section;
(B) Commodities and software exported under paragraph (b)(1), tools
of trade, of this section; and
(C) Commodities exported as kits of replacement parts, consistent
with the requirements of paragraph (b)(2) of this section.
(iii) 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.)
(2) Commodities. The following commodities may not be exported or
reexported to any destination under this License Exception:
(i) Supercomputers;
(ii) Commodities 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 this subchapter.
(iii) Electronic, mechanical, or other devices, as described in
ECCN 5A80, primarily useful for surreptitious interception of wire or
oral communications.
(3) Use or disposition. No commodity or software may be exported or
reexported under this License Exception if:
(i) An order to acquire the commodity or software has been received
before shipment;
(ii) The exporter has prior knowledge that the commodity or
software will stay abroad beyond the terms of this License Exception;
or
(iii) The commodity or software is for lease or rental abroad.
(d) 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:
(1) Authorization under Form BXA-748P. If the U.S. 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 Form BXA-748P, Multipurpose Application, to BXA at the
address listed in part 748 of this subchapter. (See part 748 of this
subchapter for more information on reexport authorizations.) 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 directly from the United States to the
proposed destination. BXA will advise the exporter of its decision.
(2) 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.
(3) Authorization to retain abroad beyond one year. If the exporter
wishes to retain a commodity or software abroad beyond the 12 months
authorized in Sec. 740.8(a), 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 this subchapter 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
(d)(1) of this section.
Sec. 740.9 Exports of items temporarily in the United States (TUS).
(a) Scope. This License Exception, designated 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: 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.)
(b) 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.
(1) 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 this License Exception.
(2) Items may not be exported to Country Group E:2 under this
License Exception.
(3) The following may not be exported in transit from the United
States under TUS:
(i) Commodities shipped to the United States under an International
Import Certificate, Form BXA-645P;
(ii) Chemicals controlled under ECCN 1C60; or
(iii) Horses for export by sea (refer to short supply controls in
part 754 of this subchapter).
(4) 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 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 exempt from U.S. licensing, [[Page 25304]] or made under a
U.S. license or applicable U.S. License Exception other than this
License Exception, or is valued at less than $50.00. The commodity
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 7513,1 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.
\1\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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(c) 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.
(1) 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.
(2) Items may be exported to any destination other than the country
from which imported except:
(i) Items imported into the United States under an International
Import Certificate;
(ii) Exports to Country Group E:2 (see Supplement No. 1 to part
740); or
(iii) Exports to Country Group D:1, 2, 3, or 4 (see Supplement No.
1 to part 740) of items controlled for national security, nuclear
proliferation, missile technology, or chemical and biological weapons
reasons, respectively.
(d) 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.
(e) Return of shipments refused entry. Shipments of items refused
entry by the U.S. Customs Service, the Food and Drug Administration, or
any other U.S. Government agency may be returned to the country of
origin, except to:
(1) A destination in Cuba, Libya, or North Korea; or
(2) 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).
Sec. 740.10 Parts (PTS).
(a) Scope. This License Exception, designated License Exception
PTS, authorizes the export and reexport of one-for-one replacement
parts for previously exported equipment.
(b) One-for-one replacement of parts. (1) The term ``replacement
parts'' 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 TMP, Sec. 740.8(b)(2).
(2) 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.
(3) The parts to be replaced must either be destroyed abroad or
returned promptly to the party who supplied the replacement parts, or
to a foreign firm that is under the effective control of that party.
(c) Exclusions. (1) 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.
(2) 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.
(3) No parts may be exported under this License Exception to any
destination except Iceland, New Zealand, or the countries listed in
Country Group A:1 (COCOM Successor Regime) (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, 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(b) of this subchapter.
(4) 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, helicopter, or national security controlled commodity.
(5) The conditions set forth in this paragraph (c) 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. 732.4(b)(2)(ii) and (iii) of this subchapter.
(d) Reexports. Parts exported from the United States may be
reexported to a new country of destination, provided that the
restrictions described in paragraphs (b) and (c) 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.
Sec. 740.11 Servicing and Replacement (S&R).
(a) Scope. This License Exception, designated License Exception
S&R, [[Page 25305]] authorizes export of items that were returned to
the United States for servicing and the replacement of defective or
unacceptable U.S.-origin commodities and software.
(b) Items sent to a United States or foreign party for servicing--
(1) Definition. ``Servicing'' 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.
(2) Return of serviced items. When the serviced item 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.
(3) Items imported from Country Group D:1 except the PRC. Items
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:
(i) The exporter making the shipment is the same person or firm to
whom the original license was issued; and
(ii) The end-use and the end-user of the serviced item 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.
(4) Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. No
repaired item may be exported or reexported to Cuba, Iran, Iraq, Libya,
North Korea, Sudan, or Syria under this section.
(c) Replacements for defective or unacceptable U.S.-origin
equipment. (1) Subject to the following conditions, certain items may
be exported to replace defective or otherwise unusable (e.g.,
erroneously supplied) items.
(i) The item to be replaced must have been previously exported or
reexported in its present form under a license or authorization granted
by BXA.
(ii) No item may be exported to replace equipment that is worn out
from normal use, nor may any item be exported to be held in stock
abroad as spare equipment for future use.
(iii) The replacement item may not improve the basic
characteristic, e.g., as to accuracy, capability, performance, or
productivity, of the item as originally approved for export or reexport
under a license issued by BXA.
(iv) 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.
(2) 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 set forth in paragraph (c)(1) 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 and Country Group D:1:
(i) By making such an export or reexport, the exporter represents
that all the requirements of paragraph (c) have been met and undertakes
to destroy or return the replaced parts as set forth in paragraph
(c)(2)(iii) of this section.
(ii) The defective or otherwise unusable item 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 item within the warranty period or within 12
months of its shipment to the ultimate consignee in the country of
destination, whichever is shorter.
(iii) The item 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.
(iv) A party reexporting replacements for defective or unacceptable
U.S.-origin equipment must ensure that the commodities being replaced
were shipped to their present location in accordance with U.S. law and
continue to be legally used.
Sec. 740.12 Baggage (BAG).
(a) Scope. This License Exception, designated License Exception
BAG, authorizes individuals leaving the United States and crew members
of exporting carriers to take to any destination, as personal baggage,
the classes of commodities set forth in this section.
(b) Eligibility. Individuals leaving the United States may export
any of the following items to any destination or series of
destinations. Crew members may export only items 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 may be
limited or prohibited, if the kind or quantity is in excess of the
limits set forth in this section. In addition, the commodities 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.
(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. Items of 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 [[Page 25306]] 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 paragraph (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. 740.13 Aircraft and Vessels (A&V).
(a) Scope. A License Exception designated License Exception A&V is
established authorizing the 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.
(b) 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 commodity for
which export authorization is required and has not been granted by the
appropriate U.S. Government agency.
(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 any commodity from the United
States for which export authorization has not been granted by the
appropriate U.S. Government agency.
(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 any commodity from the United
States for which export authorization is required and has not been
granted by the appropriate U.S. Government agency; and
(E) The aircraft will be operated while abroad by a U.S. licensed
pilot, except that during domestic flights within a foreign country,
the aircraft may be operated by a pilot currently licensed by that
foreign country.
(3) 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 (b) are met.
(c) Equipment and spare parts for permanent use on a vessel or
aircraft--(1) Vessel. Equipment and spare parts for permanent use on a
vessel, when necessary for the proper operation of such vessel, may be
exported 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 [[Page 25307]] 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 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.
(d) 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 (d)(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:2
\2\Where a validated license is required, see Secs. 748.2 and
748.4(g).
---------------------------------------------------------------------------
(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 (e) of this section,
except fuel, may be made to a U.S. or Canadian airline's3
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:
\3\See Part 772 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 (d) applies to the
following commodities, subject to the provisions in paragraph (d)(1)
and (d)(2) of this section:
Note: For fuel and related commodities, refer to short supply
controls in part 754 of this subchapter;
(i) Deck, engine, and steward department stores, provisions, and
supplies for both port and voyage requirements;
(ii) Medical and surgical supplies;
(iii) Food stores;
(iv) Slop chest articles;
(v) Saloon stores or supplies; and
(vi) Equipment and spare parts.
Sec. 740.14 International safeguards (SAF).
(a) Scope. This License Exception, designated License Exception
SAF, authorizes exports 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:
(1) Commodities 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.
(2) Commodities 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.
(3) 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) and (a)(2) of this section when they become obsolete,
are no longer required, or are replaced.
(4) Commodity 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.
(5) The monitoring functions of IAEA and Euratom are not subject to
the restrictions on prohibited nuclear activities described in
Sec. 744.2(a) of this subchapter.
(6) When commodities 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 this
subchapter.
(b) Exclusions. No supercomputers may be exported under this
License Exception.
Sec. 740.15 Governments (GOV).
(a) Scope. This License Exception, designated License Exception
GOV, authorizes exports and reexports of the items listed in paragraph
(b) of this section to personnel and agencies of the U.S. Government or
agencies of cooperating governments.
(b) Eligibility--(1) Items for personal use by personnel and
agencies of the U.S. Government. License Exception GOV 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.
(2) Items for official use by personnel and agencies of the U.S.
Government. GOV is available for items consigned to and for the
official use of any agency of the U.S. Government.
(3) Items for official use within national territory by agencies of
cooperating governments. GOV is available for all items except
supercomputers consigned to and for the official use of any agency of a
cooperating government within the territory of any cooperating
government.
(4) Diplomatic and consular missions of a cooperating government.
GOV is [[Page 25308]] available for all items except supercomputers
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.)
(c) Definitions. (1) ``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)(1) of
this section for U.S. representatives to these organizations.
(2) ``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
(COCOM Successor Regime) (see Supplement No. 1 to part 740) and the
national governments of Argentina, Austria, Finland, Ireland, Korea
(Republic of), Singapore, Sweden, and Switzerland.
Sec. 740.16 Gift parcels (GFT).
(a) Scope. This License Exception, designated License Exception
GFT, is established to authorize 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: A gift parcel, within the context of this License
Exception, 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 this subchapter, must be licensed by
BXA. (See Sec. 748.9(e) of this subchapter for licensing of multiple
---------------------------------------------------------------------------
gift parcels).
(b) Commodity, value and other limitations--(1) Eligible
commodities. The commodities eligible for this License Exception are as
follows:
(i) 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 this subchapter.)
(ii) Type and quantity. The commodity must be of a type and in
quantities normally given as gifts between individuals.
(A) 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
this subchapter: 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.
(B) For all other destinations, eligible commodities include all
items described in paragraph (b)(2)(ii)(A) 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. 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 quality 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.
(C) For purposes of paragraph (b)(2)(ii) 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.
(2) 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.
(3) 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.
(4) 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.
(c) How to export gift parcels. (1) 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.
(2) 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.
Sec. 740.17 Operating technology and software (OTS).
A License Exception designated License Exception OTS is established
to permit exports and reexports of operation technology and software.
(a) Scope. ``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 Exception or license. 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 general authorization.
(b) Provisions and Destinations--(1) Provisions. Operation software
may be exported or reexported under License Exception OTS provided that
both of the following conditions are met:
(i) The operation software is the minimum necessary to operate
[[Page 25309]] equipment authorized for export or reexport; and
(ii) The operation software is in object code.
(2) 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.
Sec. 740.18 Sales technology (STS).
A License Exception designated License Exception STS is established
to authorize exports and reexports of sales technology.
(a) Scope. ``Sales technology'' is defined as data supporting a
prospective or actual quotation, bid, or offer to sell, lease, or
otherwise supply any item.
(b) Provisions and destinations. (1) Provisions. Sales technology
may be exported or reexported under License Exception STS provided
that:
(i) The technology is a type customarily transmitted with a
prospective or actual quotation, bid, or offer in accordance with
established business practice; and
(ii) 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.
(2) Destinations. Sales technology may be exported or reexported to
all destinations.
Note: Neither this authorization 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.
Sec. 740.19 Software updates (SUD).
A License Exception designated License Exception SUD is established
to authorize 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 under a License
Exception or license (original software). Such software updates may be
exported only to the same consignee for whom the original software was
authorized by a license or License Exception, 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.
Sec. 740.20 General Software Note (GSN).
A License Exception designated License Exception GSN is established
to authorize exports and reexports of software subject to the General
Software Note (see Supplement No. 2 to part 774 of this subchapter).
(a) Scope. License Exception GSN is available for ``mass market''
software as described in the General Software Note and referenced in
this section.
(b) Provisions and destinations--(1) Destinations. GSN is available
to all destinations except Cuba, Iran, Libya, North Korea, and Syria.
(2) Provisions. GSN is available for software that is generally
available to the public by being:
(i) Sold from stock at retail selling points, without restriction,
by means of:
(A) Over the counter transactions;
(B) Mail order transactions; or
(C) Telephone call transactions; and
(ii) Designed for installation by the user without further
substantial support by the supplier.
Sec. 740.21 Technology and software under restriction (TSR).
(a) A License Exception designated License Exception TSR is hereby
established to permit exports and reexports of technology and software.
Individual technology and software entries on the CCL indicate
eligibility for this License Exception by the symbol TSR. A written
assurance is required from the consignee before exporting under this
License Exception, and this License Exception authorizes exports only
to the destinations in Country Group B. (See Supplement No. 1 to part
740.)
(1) Required assurance for export of technology. No export or
reexport of technology is authorized under this License Exception until
the exporter has received from the importer a written assurance that,
without a BXA license or License Exception, the importer will neither:
(i) Reexport the technology to or release the technology to a
national of a country in Country Groups D:1 or E:2;
(ii) Export to Country Groups D:1 or E:2 the direct product of the
technology, if such foreign produced direct product is subject to
national security controls as identified on the CCL (See General
Prohibition Three, Sec. 732.2(b)(3) of this subchapter); nor
(iii) 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).
(2) Required assurance for export of software. No export or
reexport of software is authorized under this License Exception until
the exporter has received from the importer a written assurance that,
without a BXA license or License Exception, the importer will neither:
(i) Reexport the software to or release the source code for the
software to a national of a country in Country Groups D:1 or E:2; nor
(ii) Export to Country Groups D:1 and 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 at Sec. 732.2(b)(3) of this subchapter).
(3) 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 appropriate 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, this License Exception is not applicable and a license
is required. The license application must include a statement
explaining why assurances could not be obtained.
(4) 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.
(b) Reserved.
Sec. 740.22 Additional permissive reexports (APR).
(a) Scope. This License Exception, designated License Exception
APR, allows the following reexports.
(b) Permissive reexports. (1) 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
[[Page 25310]] exports are recorded, regardless of whether the license
is partially or wholly used for reexport purposes. (See part 762 of
this subchapter for recordkeeping requirements.)
(2) 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.
(3) 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.
(4) Reexports from a foreign destination to Canada of any item if
the item could be exported to Canada without a license.
(5) Reexports between Switzerland and Liechtenstein.
(6) 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. (See Sec. 732.4 of this subchapter.)
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[[Page 25312]]
Country Group B
Countries
Afghanistan
Algeria
Andorra
Angola
Antiqua
Argentina
Australia
Austria
Bahamas
Bahrain
Bangladesh
Barbados
Barbuda
Belgium
Belize
Benin
Bermuda
Bhutan
Bolivia
Bosnia & Herzegovina
Botswana
Brazil
Brunei
Burkina Faso
Burma
Burundi
Cameroon
Canada
Cape Verde
Central African Republic
Chad
Chile
Colombia
Comoros
Congo
Costa Rica
Cote d'Ivoire
Croatia
Cyprus
Czech Republic
Denmark
Djibouti
Dominica
Dominican Republic
Ecuador
Egypt
El Salvador
Equatorial Guinea
Eritea
Ethiopia
Fiji
Finland
France
Gabon
Gambia, The
Germany
Ghana
Greece
Greenland
Grenada
Grenadines, The
Guatemala
Guinea
Guinea-Bissau
Guyana
Haiti
Honduras
Hong Kong
Hungary
Iceland
India
Indonesia
Ireland
Israel
Italy
Jamaica
Japan
Jordan
Kenya
Kiribati
Korea, South
Kuwait
Lebanon
Lesotho
Liberia
Liechtenstein
Luxembourg
Macedonia, the Former Yugoslav Republic of
Madagascar
Malawi
Malaysia
Maldives
Mali
Malta
Marshall Islands
Maruitania
Mauritius
Mexico
Micronesia, Federated States of
Monaco
Morocco
Mozambique
Namibia
Nauru
Nepal
Netherlands
Nevis
New Zealand
Nicaragua
Niger
Nigeria
Norway
Oman
Pakistan
Palau
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Poland
Portugal
Principe
Puerto Rico
Qatar
Saint Kitts
Saint Lucia
Saint Vincent
San Marino
Sao Tome
Saudi Arabia
Senegal
Seychelles
Sierra Leone
Singapore
Slovakia
Slovenia
Solomon Islands
Somalia
South Africa
Spain
Sri Lanka
Surinam
Swaziland
Sweden
Switzerland
Taiwan
Tanzania
Thailand
Tobago
Togo
Tonga
Trinidad
Tunisia
Turkey
Tuvalu
Uganda
United Arab Emirates
United Kingdom
United States
Uruguay
Vanuatu
Vatican City
Venezuela
Western Sahara
Western Samoa
Yemen
Zaire
Zambia
Zimbabwe
Country Group C
[Reserved]
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PART 742--CONTROL POLICY--CCL BASED CONTROLS
Sec.
742.1 Introduction.
742.2 Proliferation of chemical and biological weapons.
742.3 Nuclear non-proliferation.
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 [Reserved].
742.12 Supercomputers.
742.13 Communications intercepting devices.
Supplement No. 1 to Part 742--Nonproliferation of Chemical and
Biological Weapons
Supplement No. 2 to Part 742--Countries That Are Party to the Nuclear
Non-Proliferation Treaty and/or the Treaty for the Prohibition of
Nuclear Weapons in Latin America (Treaty of Tlatelolco)
Supplement No. 3 to Part 742--Iran, Sudan and Syria Contract Sanctity
Dates and Related Policies
Supplement No. 4 to Part 742--Supercomputers; Security Conditions and
Safeguard Plans, Definitions, and Related Information
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 742.1 Introduction.
(a) Scope. This Part sets forth the controls and the licensing
policies for all the items that are listed on the Commerce Control List
(CCL), except the following:
(1) Exports and reexports involving Cuba, Libya, North Korea, Iraq,
and the Federal Republic of Yugoslavia (Serbia and Montenegro). This
Part does not cover controls and licensing policies that apply to
exports and reexports to embargoed destinations. If you are exporting
or reexporting to Cuba, Libya, North Korea, Iraq, or the Federal
Republic of Yugoslavia (Serbia and Montenegro) you should first review
part 746 of this subchapter, Embargoes and Other Special Controls. The
Country Chart (Supplement No. 1 to part 738 of this subchapter) will
direct you to part 746 of this subchapter for these countries.
(2) Controls implementing U.N. sanctions. The United Nations
imposes sanctions, short of complete embargoes, against certain
countries and destinations which may result in controls that supplement
those otherwise maintained under the EAR for that particular country.
When the Country Chart (Supplement No. 1 to part 738 of this
subchapter) has a check in UN Column No. 1, you should review part 746
of this subchapter, Embargoes and Other Special Controls, for any
supplemental controls that may apply to exports and reexports involving
these countries.
(3) Commodities that are covered under part 754 of this subchapter,
Short Supply Controls. This Part does not address controls and
licensing policies for commodities controlled for short supply reasons.
These commodities contain the symbol ``SS'' in the ``Reason for
Control'' part of the ``License Requirements'' section of the
applicable ECCNs on the CCL. These ECCNs are the following: 0A80
(Horses for export by sea); 1C80 (Inorganic chemicals); 1C81 (Crude
petroleum, including reconstituted crude petroleum, tar sands, and
crude shale oil); 1C82 (Other petroleum products); 1C83 (Natural gas
liquids and other natural gas derivatives); 1C84 (Manufactured gas and
synthetic natural gas (except when commingled with natural gas and thus
subject to export authorization from the Department of Energy); and
1C88 (Western red cedar (thuja plicata) logs and timber, and rough,
dressed and worked lumber containing wane).
(b) This part lists all the reasons for control reflected in the
Country Chart in Supplement No. 1 to part 738 of this subchapter except
UN sanctions and Short Supply. In addition, it includes licensing
requirements and licensing policy for communications intercepting
devices and supercomputers, which are not reflected on the Chart. 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 Chart. In
listing the reasons for control and licensing policies, this part
includes a description of any multilateral regime under which specific
controls are maintained and any applicable contract sanctity provisions
that may apply to specific controls.
(c) List of controls described in this part. Specifically, this
part describes controls and licensing policies that further the U.S.
policies relating to the following:
(1) Chemical and biological weapons (CB). (Sec. 742.2 of this part)
(2) Nuclear non-proliferation (NP). (Sec. 742.3 of this part)
(3) National security (NS). (Sec. 742.4 of this part)
(4) Missile technology (MT). (Sec. 742.5 of this part)
(5) Regional stability (RS). (Sec. 742.6 of this part)
(6) Crime control (CC). (Sec. 742.7 of this part)
(7) Anti-terrorism (AT): Iran. (Sec. 742.8 of this part)
(8) Anti-terrorism (AT): Syria. (Sec. 742.9 of this part)
(9) Supercomputers (SC). (Sec. 742.12 of this part)
(10) Communications intercepting devices (CI). (Sec. 742.13 of this
part)
(d) Overlapping license policies. Many items are specified on the
CCL as being subject to more than one type of control (e.g., national
security, missile technology, nuclear non-proliferation, regional
stability). 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 non-
proliferation (see Sec. 742.3(b)(2) of this part), or chemical and
biological weapons (see Sec. 742.3(b)(3) of this part) and all national
security items may be reviewed for anti-terrorism reasons (see
Secs. 742.8(b) and 742.9(b) of this part). 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 this subchapter) is indicated in the appropriate ECCN, a license
is required to all destinations except Canada for the following:
(i) Viruses, viroids, bacteria, fungi, and protozoa identified in
ECCN 1C61 (Microorganisms and toxins).
(ii) Technology for the production and or disposal of
microbiological commodities described in paragraph (a)(1)(i) of this
section (1E61).
(2) If CB Column 2 of the Country Chart (Supplement No. 1 to part
738 of this subchapter) 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 this subchapter) (Australia Group
members) for the following:
(i) Chemicals identified in ECCN 1C60 (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 1C60, [[Page 25316]] 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 1C60, unless those
compounds are also identified in ECCN 1C60.
(ii) Software (ECCN 1D60) for process control that is specifically
configured to control or initiate production of the chemical precursors
controlled by ECCN 1C60.
(iii) Technology (ECCN 1E60) for the production and/or disposal of
chemical precursors described in ECCN 1C60, and technology involving
the following for facilities designed or intended to produce chemicals
described in ECCN 1C60:
(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;
(E) Consultation on specific problems involving such facilities.
(3) If CB Column 3 of the Country Chart (Supplement No. 1 to part
738 of this subchapter) is indicated in the appropriate ECCN, a license
is required to Country Group D:3 (see Supplement No. 1 to part 740 of
this subchapter) for the following:
(i) Equipment and materials identified in ECCN 1B70 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
1B71, which can be used in the production of biological agents.
(ii) Technology for production of the commodities covered in
paragraph (a)(3)(i) of this section (ECCN 1E70).
(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 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.
(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 this subchapter) (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 pre-existing
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 this
subchapter). The list of items controlled in paragraph (a) of this
section are consistent with lists agreed to in the Australia Group.
Sec. 742.3 Nuclear non-proliferation.
(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 symbols ``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 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 this subchapter) is indicated in the appropriate ECCN, a license
is required to all destinations, except Canada.
(2) If NP Column 2 of the Country Chart (Supplement No. 1 to part
738 of this subchapter) is indicated in the appropriate ECCN, a license
is required to Country Group D:2 (see Supplement No. 1 to part 740 of
this subchapter).
(3) Other nuclear-related license requirements are described in
Secs. 744.3 and 744.4 of this subchapter.
(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 this
subchapter; and
(viii) The non-proliferation 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) (see Supplement
No. 2 to part 742), or to a similar international legally-binding
nuclear non-proliferation agreement.
(B) Whether the importing country has all of its nuclear
activities, facilities, or installations that are operational,
[[Page 25317]] 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 non-proliferation issues);
(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.
(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 this subchapter) 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 this subchapter)
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, if NS Column 1 of the
Country Chart (see Supplement No. 1 to part 738 of this subchapter) is
indicated in the appropriate ECCN, 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. 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 this subchapter) that would prove detrimental to the
national security of the United States.
(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 this
subchapter) 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 as described for certain countries in paragraphs (b)(5)
through (8) 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 this subchapter) 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 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) Romania has been determined to present a lesser strategic
threat, and has adopted safeguard measures to protect against the
diversion of national security controlled items. In recognition of
these facts, the Commerce Control List includes several Advisory Notes
that indicate likelihood of approval or favorable consideration for
export to satisfactory end-users in Romania. Items not eligible for
favorable consideration will be reviewed on a case-by-case basis.
(7) 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.
(8) For the People's Republic of China, the general licensing
policy is to approve applications, except that for those items that
would make a direct and significant contribution to nuclear weapons and
their delivery systems, 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: 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) Interim regime. The licensing requirements described in
paragraph (a) of this section reflect multilaterally agreed lists that
were in effect when the Coordinating Committee (COCOM) ceased operating
in March 1994. COCOM members agreed to maintain controls based on this
list on an interim basis, pending the development of new lists and
policies to be applied by the COCOM successor regime.
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 this subchapter).
[[Page 25318]]
(2) The term ``missiles'' is defined as rocket systems (including
ballistic missile systems, space launch vehicles, and sounding rockets)
and unmanned air vehicle systems (including cruise missile systems,
target drones, and reconnaissance drones) capable of delivering at
least 500 kilograms (kg) payload to a range of a least 300 kilometers
(km).
(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 9A21 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 non-proliferation 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 pre-existing 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 1B28.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 paragraphs (b) or (c) of this
section 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 this subchapter). 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 this Subchapter), a license is
required to all destinations, except Canada, for items described on the
CCL under ECCNs 6A02.a.1, a.2, a.3, or c; 6A03.b.3 and b.4; 6D21 (only
software for development of items in 6A02.a.1, a.2, a.3 or c); 6E01
(only technology for development of items in 6A02.a.1, a.2, a.3, and c,
or 6A03.b.3 and b.4); 6E02 (only technology for production of items in
6A02.a.1, a.2, a.3, or c, or 6A03.b.3 or b.4); 7D01 (only software for
development or production of items in 7A01, 7A02, or 7A03); 7E01 (only
technology for the development of inertial navigation systems, inertial
equipment, and specially designed components therefor for civil
aircraft); 7E02 (only technology for the production of inertial
navigation systems, inertial equipment, and specially designed
components therefor for civil aircraft); and, 7E21 (only technology for
the development or 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 this subchapter), a license is
required to any destination except countries in Country Group A:1 (see
Supplement No. 1 to part 740 of this subchapter), Iceland and New
Zealand for military vehicles and certain commodities (specially
designed) used to manufacture military equipment, described on the CCL
in ECCNs 0A18.c, 1B18.a, 2B18, and 9A18.b.
(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 this
subchapter), i.e., all countries except those listed in Country Group
A:1 (see Supplement No. 1 to part 740 of this subchapter) and Iceland
and New Zealand. Items affected by this requirement are identified on
the CCL under the following ECCNs: 0A82; 0A84 (shotguns with barrel
length over 18 but less than 24 inches, regardless of end-user); 0E84;
1A84; 3A80; 3A81; 3D80; 3E80; 4A03 (fingerprint computers only); 4A80;
4D01 (for fingerprint computers only); 4D80; 4E01 (for fingerprint
computers only); 4E80; 6A02 (police-model infrared viewers only); 6E01
(for police-model infrared viewers only); 6E02 (for police-model
infrared viewers only); and 9A80. [[Page 25319]]
(2) Shotguns with a barrel length of 24 inches or more identified
in ECCN 0A84 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
this subchapter), which are the same as those countries listed in
Country Group D:1 (see Supplement No. 1 to part 740 of this
subchapter).
(3) Shotguns with barrel length over 24 inches, identified in ECCN
0A84 on the CCL under CC Column No. 3 in the Country Chart column of
the ``License Requirements'' if for sale or resale to police or law
enforcement entities to countries listed in CC Column 2 (Supplement No.
1 to part 738 of this subchapter) except countries in Country Group A:1
(see Supplement No. 1 to part 740 of this subchapter), and Iceland and
New Zealand.
(b) Licensing policy. The licensing policies are as follows:
(1) Applications for licenses to export or reexport ``specially
designed implements of torture'' will be denied.
(2) Applications for other items controlled under paragraph (a) of
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. In support of U.S. foreign policy on
terrorism designated countries, BXA maintains two types of anti-
terrorism controls on the export and reexport of items described in
Supplement No. 3 to part 742. Of these controls, items described in
paragraph (a)(i) through (a)(v) of Supplement No. 3 to part 742 are
controlled under section 6(j) of the Export Administration Act, as
amended (EAA). Items listed in paragraph (a)(vi) through (a)(xxxviii)
of Supplement No. 1 to part 742 are controlled under section 6(a) of
the EAA.
(1) If AT Column 1 or AT Column 2 of the Country Chart (Supplement
No. 1 to part 738 of this subchapter) is indicated in the appropriate
ECCN, a license is required for export 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 this subchapter) is indicated in the appropriate
ECCN, a license is required for reexport to Iran of such items, except
for ECCNs 2A94, 3A93, 5A92, 5A95, 6A90, 6A94, 7A94, 8A92, 8A94, 9A90,
9A92, and 9A94. In addition, items in these ECCNs are not counted as
controlled US content for the purposes of determining license
requirements for foreign made products containing US parts and
components. However, the export of these items from the U.S. to any
destination with knowledge that they will be reexported directly or
indirectly, in whole or in part to Iran is prohibited without a
validated license.
(b) Licensing policy. The Iran-Iraq Arms Non-Proliferation Act
requires BXA to deny license applications for Iran. License
applications for which contract sanctity is established are considered
under policies in effect prior to the enactment of that Act (for Iran
the effective date is October 23, 1992). Otherwise, licenses for Iran
are subject to a policy of denial. 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 Iran, including its military
logistics capability, or could enhance Iran's ability to support acts
of international terrorism, the appropriate committees of the Congress
will be notified thirty days before issuance of a license to export or
reexport such items.
(c) Contract sanctity. Contract sanctity dates and licensing
policies in effect prior to October 23, 1992 are listed in Supplement
No. 3 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. 742.9 Anti-terrorism: Syria.
(a) License requirements. In support of U.S. foreign policy on
terrorism designated countries, BXA maintains two types of anti-
terrorism controls on the export and reexport of items described in
Supplement No. 3 to part 742. Of these controls, items described in
paragraph (a)(i) through (a)(v) of Supplement No. 3 to part 742 are
controlled under section 6(j) of the Export Administration Act, as
amended (EAA). Items listed in paragraph (a)(vi) through (a)(xxxviii)
of Supplement No. 1 to part 742 are controlled under section 6(a) of
the EAA. If AT Column 1 of the Country Chart (Supplement No. 1 to part
738 of this subchapter) is indicated in the appropriate ECCN, a license
is required for export and reexport to Syria for anti-terrorism
purposes.
(b) Licensing policy. (1) Applications for export and reexport to
Syria of the following items will generally be denied:
(i) Items that are controlled for chemical and biological weapons
proliferation reasons to any destination (i.e., 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 containing NS Column 1 in the Country Chart
column of the ``License Requirements'' section in an ECCN on the CCL
and ending with the number ``18''.
(iii) Items that are controlled for missile proliferation reasons
to any destination (i.e., 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 controlled to any destination
for national security reasons and containing an NS in the Reason for
Control column on the CCL; or controlled to Syria and containing an AT
1 in the Country Chart column of the ``License Requirements'' section
of an ECCN on the CCL.
Note: 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 and containing an NS
Column 1 in the Country Chart column of the ``License Requirements''
section of an ECCN on the CCL; or controlled to Syria and containing an
AT Column 1 in the Country Table Chart column of the ``License
Requirements'' section of an ECCN on the CCL. [[Page 25320]]
(2) Items that are controlled for nuclear non-proliferation reasons
to any destination and have an NP Column 1 or NP Column 2 in the
Country Chart column of the ``License Requirements'' section of an ECCN
on the CCL will be considered on a case-by-case basis.
(3) Applications for export and reexport to Syria of all other
items described in paragraph (a) of this section, and not controlled by
paragraphs (b)(1) or (b)(2) 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.
(4) Notwithstanding the provisions of paragraphs (b)(1), (b)(2),
and (b)(3) 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 equipment.
Note: 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.
(5) 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
appropriate committees of the Congress will be notified thirty days
before issuance of a validated license to export or reexport such
items.
(c) Contract sanctity. Contract sanctity dates and related
licensing policies for Syria are set forth in Supplement No. 3 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. In support of U.S. foreign policy on
terrorism designated countries, BXA maintains anti-terrorism controls
on the export and reexport of items described in paragraph (a)(1)
through (a)(v) of Supplement No. 3 to part 742. These items are
controlled under section 6(j) of the Export Administration Act, as
amended (EAA).
(b) Licensing policy. (1) Applications for export and reexport to
Sudan of the following items will generally be denied:
(i) Items that are controlled for chemical and biological weapons
proliferation reasons to any destination (i.e., 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 (i.e., that contain NS Column 1 in the
Country Chart column of the ``License Requirements'' section of an ECCN
on the CCL and ending with the number ``18'').
(iii) Items that are controlled for missile proliferation reasons
to any destination (i.e., that contain a MT Column 1 in the Country
Chart column of the ``License Requirements'' section of an ECCN on the
CCL).
(2) Items that are controlled for nuclear non-proliferation reasons
to any destination (i.e., that contain a NP Column 1 or NP Column 2 in
the Country Chart column of the ``License Requirements'' section of an
ECCN on the CCL) will be considered on a case-by-case basis.
(3) Applications for the export and reexport of national security
controlled items to any destination (i.e., that contain NS Column 1 in
the Country Chart column of the ``License Requirements'' section of an
ECCN on the CCL) 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.
(4) Notwithstanding the provisions of paragraphs (b)(1), (b)(2),
and (b)(3) 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 contract sanctity date of December 28, 1993).
(ii) The U.S. content of foreign-produced commodities is 20% or
less by value; or
(iii) The commodities are medical equipment.
Note: 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.
(c) Contract sanctity. Contract sanctity dates and related
licensing information for Sudan are set forth in Supplement No. 3 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 [Reserved]
Sec. 742.12 Supercomputers.
(a) License requirements. (1) This section contains special
provisions for exports, reexports, and certain intra-country transfers
of supercomputers. A supercomputer is any computer with a Composite
Theoretical Performance (CTP) equal to or exceeding 1,500 MTOPS
(million theoretical operations per second). For the calculation of
CTP, see the Technical Note that follows the Advisory Notes for
Category 4 in the Commerce Control List.
(2) In recognition of the strategic significance of supercomputers,
in particular their potential to make substantial contributions to
activities of national security and weapons proliferation concern, a
license is required for the export or reexport of supercomputers to all
destinations, except Japan and Canada and for intra-country transfers
within such destinations, except that no license is required for export
from Japan. These license requirements are not reflected on the Country
Chart (Supplement No. 1 to part 738 of this subchapter).
(b) Licensing policy. Supercomputer licensing policies described in
this section vary according to the country of destination. Generally
licenses are subject to security conditions or safeguard plans.
Security conditions, safeguard plans, and related information are
provided in Supplement No. 4 to part 742. [[Page 25321]]
(1) License applications for exports, reexports, or in-country
transfers of supercomputers to Australia, Belgium, Denmark, France,
Germany, Italy, the Netherlands, Norway, Spain, and the United Kingdom
generally will be approved subject to Minimum Security Conditions (see
Supplement No. 4 to part 742), unless otherwise stated on the license.
(2) License applications for exports, reexports, or in-country
transfers of supercomputers to Austria, Finland, Iceland, Mexico,
Singapore, South Korea, Sweden, Switzerland, and Venezuela will be
considered on a case-by-case basis and, if approved, will be subject to
Level 1 Safeguards Plans (see Supplement No. 4 to part 742), unless
otherwise stated on the license. The following factors will be
considered in reviewing applications for these countries:
(i) Strategic trade control cooperation between the importing
government and the United States;
(ii) The ultimate consignee's participation in, or support of, any
activities that involve national security concerns (e.g., cryptography,
anti-submarine, and strategic defense concerns); or
(iii) The ultimate consignee's participation in, or support of, the
following prohibited activities:
(A) The design, development, production, or use of:
(1) Nuclear explosive devices, including any components or
subsystems of such devices;
(2) Complete rocket systems or unmanned air vehicle systems capable
of delivering nuclear weapons, including any components or subsystems
of such devices;
(B) The design, development, production, use, or maintenance of
nuclear fuel cycle facilities (including facilities related to nuclear
propulsion) or heavy water production plants in countries in Country
Group D:2 (see Supplement No. 1 to part 740 of this subchapter);
(C) Any projects or facilities for the design, development,
production, stockpiling, or use of chemical or biological weapons;
(D) A violation of the export laws and regulations of a supplier
country or involvement in clandestine procurement activities or other
activities where there is a significant risk of diversion from the
authorized end-uses or a likelihood that supercomputer security
safeguards would not be effectively implemented.
(3) License applications for export, reexport, or in-country
transfers of supercomputers to the following countries will be
considered on a case-by-case basis and, if approved, will be subject to
Level 2 Safeguards Plans (see Supplement No. 4 to part 742), unless
otherwise stated on the license: Bahrain, Czech Republic, Egypt,
Jordan, Lebanon, Poland, Qatar, Slovakia, Taiwan, and Yemen and
countries in Country Group D:2 (see Supplement No. 1 to part 740 of
this subchapter), excluding Iran. The factors that will be considered
in reviewing applications to these countries are the same as those set
forth in paragraph (b)(2) of this section.
Note: The number and nature of the safeguards required to
approve an application will depend on whether the end-use is single-
purpose or multiple-purpose (fewer safeguards will generally be
required to approve an application when the end-use is single-
purpose).
(4) License applications for exports, reexports, or in-country
transfers of supercomputers to the following countries will generally
be denied: countries in Country Group D:1 (see Supplement No. 1 to part
740 of this subchapter), Cuba, Iran, Iraq, the Federal Republic of
Yugoslavia (Serbia and Montenegro), Libya, North Korea, Sudan, and
Syria. Should an application be considered for approval to any such
destinations, an appropriate safeguards plan will be developed
including appropriate security conditions described under the Level 2
Safeguards Plans (see Supplement No. 4 to part 742).
(5) License applications for exports, reexports, or in-country
transfers of supercomputers to other countries will be reviewed on a
case-by-case basis and will be evaluated to determine which safeguards
requirements would be most appropriate. In addition to the factors set
forth in paragraph (b)(2) of this section, the following criteria will
be considered in the review of these applications:
(i) 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; and,
(ii) The extent to which the importing country has cooperated with
the United States in stemming nuclear, chemical or biological weapons,
or missile proliferation activities.
Note: The number and nature of the safeguards required to
approve an application will depend on whether the end-use is single-
purpose or multiple-purpose (fewer safeguards will generally be
required to approve an application when the end-use is single-
purpose).
(6) Exports, reexports, or in-country transfers of supercomputers
involving countries listed in paragraphs (b)(1), (b)(2), and (b)(3) of
this section that are solely dedicated to the following non-scientific
and non-technical commercial and business uses may be eligible for a
less restrictive set of security safeguards than those normally
applicable to such countries:
(i) Financial services (e.g., banking and securities and commodity
exchanges);
(ii) Insurance;
(iii) Reservation systems;
(iv) Point-of-sales systems;
(v) Mailing list maintenance for marketing purposes;
(vi) Inventory control for retail/wholesale distribution.
(c) Contract sanctity. Contract sanctity provisions are not
available for license applications involving exports and reexports of
supercomputers.
(d) Supercomputer regime. The United States and Japan participate
in a supercomputer regime. Other countries are expected to join. The
regime provides uniform and effective safeguards to protect
supercomputers from unauthorized end-users and unauthorized end-uses,
including those associated with proliferation. Under the regime,
supercomputer controls apply on a world-wide basis.
Sec. 742.13 Communications intercepting devices.
(a) License requirement. (1) As set forth in ECCN 5A80, 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 (Pub.L. 90-361). This license requirement is not
reflected on the Country Chart (Supplement No. 1 to part 738 of this
subchapter).
(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 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 [[Page 25322]] 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 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-diisopropylaminoethane-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 ECCN 1C61 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 Syria, paragraph (1) of this Supplement applies. For exports of
triethanolamine to Iran, Libya, or Syria, paragraph (6) of this
Supplement applies.
(8) The contract sanctity date for exports to all destinations
(except Iran, Libya, or Syria) of chemicals controlled by ECCN 1C60
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 ECCN 1B70;
(ii) Equipment and materials for producing biological agents)
described in ECCN 1B71; and
(iii) Technology for the production of 1B70 and 1B71 described
in 1E70.
(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 1C60 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 viruses,
viroids, bacteria, fungi, and protozoa controlled by ECCN 1C61 is
March 7, 1991.
Supplement No. 2 to Part 742--Countries That Are Party to the Nuclear
Non-Proliferation Treaty and/or the Treaty for the Prohibition of
Nuclear Weapon in Latin America (Treaty of Tlatelolco)
[This Supplement is redesignated from Supplement No. 2 to Part
778 elsewhere in this proposed rule. The text for this Supplement
will be set out in the final rule.]
Supplement No. 3 to Part 742--Iran, Sudan and Syria Contract
Sanctity Dates and Related Policies
(a)(1) The current licensing policies for Iran, Sudan, and Syria
are set forth in Secs. Sec. 742.8, 742.9, and 742.10 of this part.
The following list provides guidance on licensing policies and
related contract sanctity dates that may be available for
transactions involving pre-existing contracts involving Iran, Sudan,
and Syria.
(i) All items subject to national security controls. (A) Iran.
Applications for export and reexport to Iran of these items will
generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of items valued at $7 million or more: January
23, 1984.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other national security controlled
items: September 28, 1984.
(3) Contract sanctity date for exports and reexports to non-
military end-users or end-uses: October 23, 1992, unless otherwise
specified in this paragraph (a)(1)(i) of this Supplement.
(B) Sudan. Applications for export and reexport to Sudan of
these items will generally be denied if the export or reexport is
destined to a military end-user or military end-use. Applications
for exports and reexports to non-military end-users or end-uses will
be considered on a case-by-case basis. Contract sanctity date:
December 28, 1993.
(C) Syria. Applications for export and reexport to Syria of
these items will generally be denied if the export or reexport is
destined to a military end-user or military end-use. Applications
for exports and reexport to non-military end-users or end-uses will
be considered on a case-by-case basis, unless otherwise specified in
this paragraph (a)(1)(i) of this Supplement.
(1) No contract sanctity date for exports and reexports to
military end-users or end-uses of items valued at $7 million or
more.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other items: December 16, 1986.
(ii) All items subject to chemical and biological weapons
proliferation controls. Applications for export and reexport to
Iran, Sudan, or Syria of these items will generally be denied to all
end-users. Contract sanctity date for Sudan: December 28, 1993 (See
Supplement No. 1 to Part 742 for contract sanctity dates for Iran
and Syria).
(iii) All items subject to missile proliferation controls
(MTCR). Applications for export and reexport to Iran, Sudan, or
Syria of these items will generally be denied to all end-users.
Contract sanctity date for Sudan: December 28, 1993. Contract
sanctity provisions for Iran and Syria are not available.
(iv) All items subject to nuclear weapons proliferation controls
(NRL). (A) Iran. Applications for export and reexport to Iran of
these items will generally be denied to all end-users. Contract
sanctity date: October 23, [[Page 25323]] 1992, unless otherwise
specified in this paragraph (a)(1) of this Supplement.
(B) Sudan. Applications for export and reexport to Sudan of
these items will generally be denied if destined to a military end-
user or end-use. Applications for export and reexport to non-
military end-users or end-uses will be considered on a case-by-case
basis. Contract sanctity date: December 28, 1993.
(C) Syria. Applications for export and reexport to Syria of
these items will generally be denied if destined to a military end-
user or end-use. Applications for export and reexport to non-
military end-users or end-uses will be considered on a case-by-case
basis. Contract sanctity date: October 23, 1992.
(v) All military-related items, i.e., applications for export
and reexport of items controlled by CCL entries ending with the
number ``18''. (A) Iran. Applications for export and reexport to
Iran of these items will generally be denied to all end-users.
Contract sanctity date: see paragraph (a)(1)(i)(A) of this
Supplement.
(B) Sudan. Applications for export and reexport to Sudan of
these items will generally be denied to all end-users. Contract
sanctity date: December 28, 1993.
(C) Syria. Applications for export and reexport to Syria of
these items will generally be denied to all end-users. Contract
sanctity date: see paragraph (a)(1)(i)(B) of this Supplement.
(vi) All aircraft (powered and unpowered), helicopters, engines,
and related spare parts and components. (A) Iran. Applications for
export (and reexport, if applicable) to Iran of these items will
generally be denied to all end-users.
(1) Contract sanctity date for helicopters exceeding 10,000 lbs.
empty weight or fixed wing aircraft valued at $3 million or more:
January 23, 1984.
(2) Contract sanctity date for other helicopters and aircraft
and gas turbine engines therefor: September 28, 1984.
(3) Contract sanctity date for helicopter or aircraft parts and
components controlled by 9A91, 9A94, or 9A95: October 22, 1987.
(B) Syria. Applications for export and reexport to Syria of
these items will generally be denied to all end-users.
(1) 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 August 28, 1991, if destined for a
regularly scheduled airline with assurance against military use.
(2) Contract sanctity date for helicopters with 10,000 lbs.
empty weight or less: April 28, 1986.
(3) Contract sanctity date for other aircraft and gas turbine
engines therefor: December 16, 1986.
(4) Contract sanctity date for helicopter or aircraft parts and
components controlled by 9A91 or 9A94: August 28, 1991.
(vii) Heavy duty, on-highway tractors. (A) Iran. Applications
for export and reexport to Iran of these items will generally be
denied to all end-users. Contract sanctity date: August 28, 1991.
(B) Syria. Applications for export or reexport to Syria of these
items 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 in Syria will be
considered on a case-by-case basis. Contract sanctity date for
military end-users or end-uses: August 28, 1991.
(viii) Off-highway wheel tractors of carriage capacity 9t (10
tons) or more. (A) Iran. Applications for export (and reexport, if
applicable) to Iran of these items will generally be denied to all
end-users. Contract sanctity date: October 22, 1987.
(B) Syria. Applications for export and reexport to Syria of
these items 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
in Syria will be considered on a case-by-case basis. Contract
sanctity date for military end-users or end-uses: August 28, 1991.
(ix) Large diesel engines (greater than 400 horsepower) and
parts to power tank transporters. (A) Iran. Applications for export
(and reexport, if applicable) to Iran of these items will generally
be denied to all end-users. Contract sanctity date: October 22,
1987.
(B) Reserved.
(x) Cryptographic, cryptoanalytic, and cryptologic equipment.
(A) Iran. Applications for export (and reexport, if applicable) to
Iran of any such equipment will generally be denied to all end-
users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of cryptographic, cryptoanalytic, and
cryptologic equipment that were subject to national security
controls on October 22, 1987: see paragraphs (a)(1)(i)(A)(1) and
(a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for all other cryptographic,
cryptoanalytic, and cryptologic equipment: October 22, 1987.
(B) Syria. A license is required for all national security-
controlled cryptographic, cryptoanalytic, and cryptologic equipment
to all end-users. Applications for export and reexport to Syria will
generally be denied.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of cryptographic, cryptoanalytic, and
cryptologic equipment that were subject to national security
controls on August 28, 1991: see paragraph (a)(1)(i)(B) of this
Supplement.
(2) Contract sanctity date for exports and reexports to non-
military end-users or end-uses of cryptographic, cryptoanalytic, and
cryptologic equipment that were subject to national security
controls on August 28, 1991: December 16, 1986.
(3) Contract sanctity date for all other cryptographic,
cryptoanalytic, and cryptologic equipment to all end-users: August
28, 1991.
(xi) Navigation, direction finding, and radar equipment.
(A) Iran. Applications for export (and reexport, if applicable)
to Iran of such equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of navigation, direction finding, and radar
equipment that were subject to national security controls on August
28, 1991: see paragraphs (a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this
Supplement.
(2) Contract sanctity date for all other navigation, direction
finding, and radar equipment: October 22, 1987.
(B) Syria. Applications for export and reexport to Syria of such
equipment 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
in Syria will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of navigation, direction finding, and radar
equipment that were subject to national security controls on August
28, 1991: see paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for all other navigation, direction
finding, and radar equipment for military end-users or end-uses:
August 28, 1991.
(xii) Electronic test equipment.
(A) Iran. Applications for export (and reexport, if applicable)
to Iran of such equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of electronic test equipment that was subject
to national security controls on October 22, 1987: see paragraphs
(a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for all other electronic test
equipment for all end-users: October 22, 1987.
(B) Syria. Applications for export and reexport to Syria of such
equipment will generally be denied to a military end-user or for
military end-use. Applications for non-military end-users or for
non-military end-uses in Syria will be considered on a case-by-case
basis.
(1) Contract sanctity date for exports and reexport to military
end-users or end-uses of electronic test equipment that was subject
to national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexport to military
end-users or end-uses of all other electronic test equipment: August
28, 1991.
(xiii) Mobile communications equipment.
(A) Iran. Applications for export (and reexport, if applicable)
to Iran of such equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexport of mobile
communications equipment that was subject to national security
controls on October 22, 1987: see paragraphs (a)(1)(i)(A)(1) and
(a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for all other mobile communications
equipment for all end-users: October 22, 1987.
(B) Syria. Applications for export and reexport to Syria of such
equipment will generally be denied if the export or reexport is
destined to a military end-user or for military end-use.
Applications for non- [[Page 25324]] military end-users or for non-
military end-uses in Syria will be considered on a case-by-case
basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of mobile communications equipment that were
subject to national security controls on August 28, 1991: see
paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other mobile communications equipment:
August 28, 1991.
(xiv) Acoustic underwater detection equipment.
(A) Iran. Applications for export and reexport to Iran of such
equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of acoustic underwater detection equipment
that was subject to national security controls on October 22, 1987:
see paragraphs (a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this
Supplement.
(2) Contract sanctity date for all other acoustic underwater
detection equipment for all end-users: October 22, 1987.
(B) Syria. A license is required for national security-
controlled acoustic underwater detection equipment. Applications for
export and reexport to Syria 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 in Syria will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of acoustic underwater detection equipment
that was subject to national security controls on August 28, 1991:
see paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses for all other acoustic underwater detection
equipment: August 28, 1991.
(xv) Portable electric power generators. (A) Iran. Applications
for export (and reexport, if applicable) to Iran of such equipment
will generally be denied to all end-users. Contract sanctity date:
October 22, 1987.
(B) Reserved.
(xvi) Vessels and boats, including inflatable boats. (A) Iran.
Applications for export (and reexport, if applicable) to Iran of
these items will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of vessels and boats that were subject to
national security controls on October 22, 1987: see paragraphs
(a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for all other vessels and boats for
all end-users: October 22, 1987.
(B) Syria. A license is required for only national security-
controlled vessels and boats. Applications for export and reexport
to Syria of these items 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
in Syria will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexport to military
end-users or end-uses of vessels and boats that were subject to
national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for all other vessels and boats:
August 28, 1991.
(xvii) Marine and submarine engines (outboard/inboard,
regardless of horsepower). (A) Iran. Applications for export and
reexport to Iran of these items will generally be denied to all end-
users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of marine and submarine engines that were
subject to national security controls on October 22, 1987: see
paragraphs (a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for outboard engines of 45 HP or more
for all end-users: September 28, 1984.
(3) Contract sanctity date for all other marine and submarine
engines for all end-users: October 22, 1987.
(B) Syria. A license is required for all national security
controlled marine and submarine engines. Applications for export and
reexport to Syria of these items 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 in Syria will be considered on a case-by-case
basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of marine and submarine engines that were
subject to national security controls on August 28, 1991: see
paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for all other marine and submarine
engines: August 28, 1991.
(xviii) Underwater photographic equipment. (A) Iran.
Applications for export (and reexport, if applicable) to Iran of
such equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of underwater photographic equipment that was
subject to national security controls on October 22, 1987: see
paragraphs (a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for all other underwater photographic
equipment for all end-users: October 22, 1987.
(B) Syria. Applications for export and reexport to Syria of such
equipment 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
in Syria will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of underwater photographic equipment that was
subject to national security controls on August 28, 1991: see
paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other underwater photographic
equipment: August 28, 1991.
(xix) Submersible systems. (A) Iran. Applications for export and
reexport to Iran of such systems will generally be denied to all
end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of submersible systems that were subject to
national security controls on October 22, 1987: see paragraphs
(a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for all other submersible systems for
all end-users: October 22, 1987.
(B) Syria. Applications for export and reexport to Syria of such
systems 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
in Syria will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of submersible systems that were subject to
national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other submersible systems: August 28,
1991.
(xx) Scuba gear and related equipment. Applications for export
and reexport to Iran of such equipment will generally be denied to
all end-users. No contract sanctity for Iran.
(xxi) Pressurized aircraft breathing equipment. (A) Iran.
Applications for export and reexport to Iran of such equipment will
generally be denied to all end-users. Contract sanctity date:
October 22, 1987.
(B) Reserved.
(xxii) Computer numerically controlled machine tools. (A) Iran.
Applications for export and reexport to Iran of these items will
generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of computer
numerically controlled machine tools that were subject to national
security controls on August 28, 1991 for all end-users: see
paragraph (a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other computer numerically
controlled machine tools: August 28, 1991, for military end-users or
end-uses; October 23, 1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of
these items will generally be denied if the export or reexport is
destined to a military end-user or for military end-use.
Applications to Syria for non-military end-users or for non-military
end-uses will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of computer numerically controlled machine
tools that were subject to national security controls on August 28,
1991: see paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other computer numerically controlled
machine tools: August 28, 1991.
(xxiii) Vibration test equipment. (A) Iran. Applications for
export and reexport to Iran [[Page 25325]] of such equipment will
generally be denied to all end-users.
(1) Contract sanctity date for exports and reexport of vibration
test equipment that was subject to national security controls on
August 28, 1991 for all end-users: see paragraph (a)(1)(i)(A) of
this Supplement.
(2) Contract sanctity dates for all other vibration test
equipment: August 28, 1991, for military end-users or end-uses;
October 23, 1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of such
equipment will generally be denied if the export or reexport is
destined to a military end-user or for military end-use.
Applications to Syria for non-military end-users or for non-military
end-uses will be considered on a case-by-case basis.
(1) Contract sanctity date for export and reexport to military
end-users or end-uses of vibration test equipment that was subject
to national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other vibration test equipment: August
28, 1991.
(xxiv) 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. (A) Iran. Applications for
export and reexport to Iran of these items will generally be denied
to all end-users.
(1) Contract sanctity dates for exports and reexports of items
that were subject to national security controls on August 28, 1991
for all end-users: see paragraph (a)(1)(i)(A) of this Supplement.
(2) Contract sanctity date for all other items for all end-
users: August 28, 1991.
(B) Syria. Applications for export and reexport to Syria of
these items 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.
(1) Contract sanctity dates for export and reexport to military
end-users or end-uses of items that were subject to national
security controls on August 28, 1991: see paragraph (a)(1)(i)(B) of
this Supplement.
(2) Contract sanctity date for export and reexport to military
end-users or end-uses of all other items: August 28, 1991.
(xxv) Telecommunications equipment. (A) A license is required
for the following telecommunications equipment:
(1) 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;
(2) Fiber optic systems or equipment operating at a wavelength
greater than 1000 nm;
(3) ``Telecommunications transmission systems'' or equipment
with a ``digital transfer rate'' at the highest multiplex level
exceeding 45 Mb/s.
(B) Iran. Applications for export or reexport to Iran of such
equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of
telecommunications equipment that was subject to national security
controls on August 28, 1991 for all end-users: see paragraph
(a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other telecommunications
equipment: August 28, 1991, for military end-users or end-uses;
October 23, 1992, for non-military end-users or end-uses.
(C) Syria. Applications for export and reexport to Syria of such
equipment 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.
(1) Contract sanctity date for exports and reexport to military
end-users or end-uses of telecommunications equipment that was
subject to national security controls on August 28, 1991: see
paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other telecommunications equipment:
August 28, 1991.
(xxvi) Microprocessors operating at a clock speed over 25 MHz.
(A) Iran. Applications for export and reexport to Iran of these
items will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of
microprocessors that were subject to national security controls on
August 28, 1991 for all end-users: see paragraph (a)(1)(i)(A) of
this Supplement.
(2) Contract sanctity dates for all other microprocessors:
August 28, 1991, for military end-users or end-uses; October 23,
1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of
these items 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of microprocessors that were subject to
national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other microprocessors: August 28, 1991.
(xxvii) Semiconductor manufacturing equipment. For Iran or
Syria, a license is required for all such equipment described in
ECCNs 3B01 and 3B91.
(A) Iran. Applications for export and reexport to Iran of such
equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of
semiconductor manufacturing equipment that was subject to national
security controls on August 28, 1991 for all users: see paragraph
(a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other semiconductor
manufacturing equipment: August 28, 1991, for military end-users or
end-uses; October 23, 1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of such
equipment 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.
(1) Contract sanctity date for export and reexport to military
end-users or end-uses of semiconductor manufacturing equipment that
was subject to national security controls on August 28, 1991: see
paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for export and reexport to military
end-users or end-uses of all other semiconductor manufacturing
equipment: August 28, 1991.
(xxviii) Software specially designed for the computer-aided
design and manufacture of integrated circuits. (A) Iran.
Applications for export and reexport to Iran of such software will
generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of software
that was subject to national security controls on August 28, 1991
for all end-users: see paragraph (a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other software: August 28,
1991, for military end-users or end-uses; October 23, 1992, for non-
military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of such
software 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of such software that was subject to national
security controls on August 28, 1991: see paragraph (a)(1)(i)(B) of
this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other such software: August 28, 1991.
(xxix) Packet switches. For Iran or Syria, a license is required
for all equipment described in ECCNs 5A03 and 5A94.
(A) Iran. Applications for export and reexport to Iran of such
equipment will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of packet
switches that were subject to national security controls on August
28, 1991 for all end-users: see paragraph (a)(1)(i)(A) of this
Supplement.
(2) Contract sanctity dates for all other packet switches:
August 28, 1991, for military end-users or end-uses; October 23,
1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of such
equipment 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of packet switches that were subject to
national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses [[Page 25326]] for all other packet switches:
August 28, 1991.
(xxx) 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.
(A) Iran. Applications for export and reexport to Iran of such
software will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of such
software that was subject to national security controls on August
28, 1991 for all end-users: see paragraph (a)(1)(i)(A) of this
Supplement.
(2) Contract sanctity dates for all other such software: August
28, 1991, for military end-users or end-uses; October 23, 1992, for
non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of such
software 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of such software that was subject to national
security controls on August 28, 1991: see paragraph (a)(1)(i)(B) of
this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other such software: August 28, 1991.
(xxxi) Gravity meters having static accuracy of less (better)
than 100 microgal, or gravity meters of the quartz element (worden)
type. (A) Iran. Applications for export and reexport to Iran of
these items will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of gravity
meters that were subject to national security controls on August 28,
1991 for all end-users: see paragraph (a)(1)(i)(A) of this
Supplement.
(2) Contract sanctity dates for all other such gravity meters:
August 28, 1991, for military end-users or end-uses; October 23,
1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of
these items 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.
(1) Contract sanctity date for export and reexport to military
end-users or end-uses of gravity meters that were subject to
national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other such gravity meters: August 28,
1991.
(xxxii) Magnetometers with a sensitivity lower (better) than 1.0
nt rms per square root Hertz. (A) Iran. Applications for export and
reexport to Iran of these items will generally be denied to all end-
users.
(1) Contract sanctity date for exports and reexports of such
magnetometers that were subject to national security controls on
August 28, 1991 for all end-users: see paragraph (a)(1)(i)(A) of
this Supplement.
(2) Contract sanctity dates for all other such magnetometers:
August 28, 1991, for military end-users or end-uses; October 23,
1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of
these items 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of such magnetometers that were subject to
national security controls on August 28, 1991: see paragraph
(a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other such magnetometers: August 28,
1991.
(xxxiii) Fluorocarbon compounds described in ECCN 1C94 for
cooling fluids for radar and supercomputers. (A) Iran. Applications
for export and reexport to Iran of such compounds will generally be
denied to all end-users.
(1) Contract sanctity date for exports and reexports of such
fluorocarbon compounds that were subject to national security
controls on August 28, 1991 for all end-users: see paragraph
(a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other such fluorocarbon
compounds: August 28, 1991, for military end-users or end-uses;
October 23, 1992, for non-military end-users or end-uses.
(B) Syria. Applications for export and reexports to Syria of
such compounds 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of such fluorocarbon compounds that were
subject to national security controls on August 28, 1991: see
paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other such fluorocarbon compounds:
August 28, 1991.
(xxxiv) High strength organic and inorganic fibers (kevlar)
described in ECCN 1C50. (A) Iran. Applications for export and
reexport to Iran of such fibers will generally be denied to all end-
users.
(1) Contract sanctity date for exports and reexports of high
strength organic and inorganic fibers described in 1C50 that were
subject to national security controls on August 28, 1991 for all
end-users: see paragraph (a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other high strength organic
and inorganic fibers described in 1C50: August 28, 1991, for
military end-users or end-uses; October 23, 1992, for non-military
end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of such
fibers 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of high strength organic and inorganic fibers
described in 1C50 that were subject to national security controls on
August 28, 1991: see paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other high strength organic and
inorganic fibers described in 1C50: August 28, 1991.
(xxxv) Machines described in ECCNs 2B03 and 2B93 for cutting
gears up to 1.25 meters in diameter. (A) Iran. Applications for
export and reexport to Iran of these items will generally be denied
to all end-users.
(1) Contract sanctity date for exports and reexports of machines
that were subject to national security controls on August 28, 1991
for all end-users: see paragraph (a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other machines: August 28,
1991, for military end-users or end-uses; October 23, 1992, for non-
military end-users or end-uses.
(B) Syria. Applications for export and reexport to Syria of
these items 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of machines that were subject to national
security controls on August 28, 1991: see paragraph (a)(1)(i)(B) of
this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other machines: August 28, 1991.
(xxxvi) Aircraft skin and spar milling machines. (A) Iran.
Applications for export and reexport to Iran of these items will
generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports of aircraft
skin and spar milling machines that were subject to national
security controls on August 28, 1991 for all end-users: see
paragraph (a)(1)(i)(A) of this Supplement.
(2) Contract sanctity dates for all other aircraft skin and spar
milling machines: August 28, 1991, for military end-users or end-
uses; October 23, 1992, for non-military end-users or end-uses.
(B) Syria. Applications for export or reexport to Syria of these
items 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.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of aircraft skin and spar milling machines
that were subject to national security controls on August 28, 1991:
see paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other aircraft skin and spar milling
machines: August 28, 1991.
(xxxvii) Manual dimensional inspection machines described in
ECCN 2B92. (A) Iran. [[Page 25327]] Applications for export and
reexport to Iran of these items will generally be denied to all end-
users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of manual dimensional inspection machines that
were subject to national security controls on August 28, 1991 for
all end-users: see paragraphs (a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of
this Supplement.
(2) Contract sanctity date for all other manual dimensional
inspection machines: August 28, 1991.
(B) Syria. Applications for export and reexport to Syria of
these items 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
in Syria will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of such manual dimensional inspection machines
that were subject to national security controls on August 28, 1991:
see paragraph (a)(1)(i)(B) of this Supplement.
(2) Contract sanctity date for exports and reexports to military
end-users or end-uses of all other such manual dimensional
inspection machines: August 28, 1991.
(xxxviii) Robots capable of employing feedback information in
real time processing to generate or modify programs.
(A) Iran. Applications for export and reexport to Iran of these
items will generally be denied to all end-users.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of such robots that were subject to national
security controls on August 28, 1991 for all end-users: see
paragraphs (a)(1)(i)(A)(1) and (a)(1)(i)(A)(2) of this Supplement.
(2) Contract sanctity date for all other such robots: August 28,
1991.
(B) Syria. Applications for export and reexport to Syria of
these items 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
in Syria will be considered on a case-by-case basis.
(1) Contract sanctity date for exports and reexports to military
end-users or end-uses of such robots that were subject to national
security controls on August 28, 1991: see paragraph (a)(1)(i)(B) of
this Supplement.
(2) Contract sanctity date for all other such robots: August 28,
1991.
(2) Applications for Iran that are not subject to the policy of
denial under the Iran-Iraq Arms Non-Proliferation Act (i.e.,
contract sanctity established prior to October 23, 1992) will be
considered on a case-by-case basis for transaction involving the
reexport to Iran of items where Iran was not the intended ultimate
destination at the time of original export from the United States,
provided that the export from the U.S. occurred prior to the
applicable contract sanctity date indicated in paragraph (a)(1) of
this Supplement (or, where the contract sanctity date is October 22,
1987, prior to November 27, 1987).
(3) Applicants who wish contract sanctity for any of the factors
described in paragraph (a)(2) of this Supplement to be considered in
reviewing their license applications must submit adequate
documentation demonstrating the value of the U.S. content, the
existence of the pre-existing contract, the specifications and
intended humanitarian or medical use of the equipment, or the date
of export from the United States.
(b) 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
license policies that were in effect prior to the contact sanctity
date. The contract sanctity dates set forth in paragraph (a) of 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, then you should include all relevant information with
your license application.
Supplement No. 4 to Part 742--Supercomputers; Security Conditions and
Safeguard Plans Definitions and Related Information
This Supplement sets forth the applicable security conditions
and safeguard plans for the export, reexport, or in-country transfer
of supercomputers to certain destinations. The licensing policies
for the export, reexport, or in-country transfer of supercomputers
are set forth in Sec. 742.12 of this Part.
(a) Minimum Security Conditions
(1) Applicable countries. The countries subject to paragraph (a)
of this Supplement include: Australia, Belgium, Denmark, France,
Germany, Italy, the Netherlands, Norway, Spain, and the United
Kingdom.
(2) Security conditions. A license for any of the countries
listed in paragraph (a)(1) of this Supplement will be subject to the
following conditions unless otherwise specified on the license:
(i) The applicant will assume responsibility for providing
adequate security against physical diversion of the supercomputer
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 listed in Country
Group D:1 (see Supplement No. 1 to Part 740 of this subchapter), and
Iran, Syria, Cuba, Iraq, North Korea, and Libya.);
(ii) No reexport or intra-country transfer without prior written
authorization from BXA; and
(iii) No physical or computational access to supercomputers may
be granted to restricted nationals (see paragraph (e)(7) of this
Supplement for definition) without prior written authorization from
BXA, except that commercial consignees described in
Sec. 742.12(b)(6) of this Part are prohibited only from giving such
nationals user-accessible programmability without prior written
authorization.
(3) Supporting documentation. Applications must be accompanied
by an International Import Certificate (IIC) or a Form BXA-6052P,
Statement by Foreign Consignee, in accordance with the documentation
requirements in Parts 748 and 752, respectively, of this subchapter.
(b) Level 1 Safeguards Plan
(1) Applicable countries. The countries subject to paragraph (b)
of this Supplement include: Austria, Finland, Iceland, Mexico,
Singapore, South Korea, Sweden, Switzerland, and Venezuela.
(2) Supercomputer safeguards plan. Following interagency review
of the application, BXA will instruct the exporter to submit a
supercomputer safeguards plan signed by the ultimate consignee. For
supercomputers with a CTP equal to or exceeding 1,950 MTOPS, the
safeguards plan must also be certified by the export control
authorities of the importing country. The safeguards plan must
indicate that the ultimate consignee agrees to implement the
following safeguards:
(i) Measures to provide adequate security against physical
diversion of the supercomputer 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 listed in Country Group D:1 (see Supplement No. 1 to Part
740 of this subchapter), and Iran, Syria, Cuba, Iraq, North Korea,
and Libya));
(ii) No reexport or intra-country transfer of the supercomputer
without prior written authorization from BXA;
(iii) Security measures to protect the computer using facility
against theft or unauthorized use of hardware or software at all
times;
(iv) Appropriate checks to ensure that physical and
computational access to the computer using facility will be limited
to authorized persons;
(v) Password or ID protocols for access by all authorized users;
(vi) No access to supercomputers by restricted nationals:
(A) No physical or computational access to supercomputers may be
granted to restricted nationals without prior written authorization
from BXA, except that commercial consignees are prohibited only from
giving such nationals user-accessible programmability without prior
written authorization;
(B) No passwords or IDs may be issued to restricted nationals;
and
(C) No work may be performed on the supercomputer on behalf of
restricted nationals;
(vii) No conscious or direct ties may be established to networks
(including their subscribers) operated by restricted nationals;
(viii) Appropriate monitoring of the use of the supercomputer
(any indications of improper or unauthorized use or requests for
runs will be promptly reported to the government of the importing
country); and
(ix) No use of the supercomputer for any prohibited activities.
(3) Certification by export control authorities of importing
country. The following importing government certification is
required for supercomputers with a CTP equal to or exceeding 1,950
MTOPS: [[Page 25328]]
This is to certify that (name of ultimate consignee) has
declared to (name of appropriate foreign government agency) that the
supercomputer (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.
(4) Supporting documentation. With the exception of applications
for Mexico and Venezuela, applications must be accompanied by an
International Import Certificate (IIC), or a Form BXA-629P
(Statement by Ultimate Consignee and Purchaser), in accordance with
the documentation requirements in Part 748 of this subchapter.
(c) Level 2 Safeguards Plan
(1) Applicable countries. The countries subject to paragraph (c)
of this Supplement include: Bahrain, Czech Republic, Egypt, Jordan,
Lebanon, Poland, Qatar, Slovakia, Taiwan, and Yemen and countries in
Country Group D:2 (see Supplement No. 1 to Part 740 of this
subchapter), excluding Iran.
(2) Supercomputer safeguards plan. Following interagency review
of the application, BXA will instruct the exporter to submit a
supercomputer safeguards plan signed by the ultimate consignee and
certified by the export control authorities of the importing
country. The safeguards plan must indicate that the ultimate
consignee agrees to implement those safeguards required by BXA as a
condition of issuing the license. BXA will inform exporters
concerning which of the following safeguards will be required as
license conditions:
(i) The applicant will assume responsibility for providing
adequate security against physical diversion of the supercomputer
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 listed in Country Group
D:1 (see Supplement No. 1 to Part 740 of this subchapter), and Iran,
Syria, Cuba, Iraq, North Korea, and Libya.
(ii) There will be no reexport or intra-country transfer of the
supercomputer without prior written authorization from BXA.
(iii) The supercomputer systems will be used only for those
activities approved on the license or reexport authorization.
(iv) There will be no changes either in the end-users or the
end-uses indicated on the license without prior written
authorization by BXA.
(v) Only software that supports the approved end-uses will be
shipped with the computer system.
(vi) The end-user will station security personnel at the
computer using facility to ensure that the applicable security
measures are implemented.
(vii) 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.
(viii) The security personnel will undertake the following
measures under the guidance of the exporter's representatives:
(A) The physical security of the computer using facility;
(B) The establishment of a system to ensure the round-the-clock
supervision of computer security;
(C) 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;
(D) The suspension, if necessary, of any run in progress and the
inspection of any output generated by the supercomputer to determine
whether the program runs or output conform with the conditions of
the license;
(E) 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;
(F) The determination of the acceptability of computer users to
ensure conformity with the conditions of the license;
(G) The immediate reporting of any security breaches or
suspected security breaches to the government of the importing
country and to the exporter's representatives;
(H) The execution of the following key tasks:
(1) Establishment of new accounts;
(2) Assignment of passwords;
(3) Random sampling of data;
(4) Generation of daily logs;
(I) The maintenance of the integrity and security of tapes and
data files containing archived user files, log data, or system
backups.
(ix) 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 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).
(x) The security personnel and the exporter's representatives
will provide monthly reports on the usage of the supercomputer
system and on the implementation of the safeguards.
(xi) The supercomputer system will be housed in one secure
building and protected against theft and unauthorized entry at all
times.
(xii) Restricted nationals will not be allowed access to
supercomputers:
(A) No physical or computational access to supercomputers may be
granted to restricted nationals without prior written authorization
from BXA, except that commercial consignees are prohibited only from
giving such nationals user-accessible programmability without prior
written authorization;
(B) No passwords or IDs may be issued to restricted nationals;
(C) No work may be performed on the supercomputer on behalf of
restricted nationals; and
(D) No conscious or direct ties may be established to networks
(including their subscribers) operated by restricted nationals.
(xiii) Physical access to the supercomputer, 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
supercomputer system.
(xiv) The supercomputer 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.
(A) The operating system will be configured so that all jobs can
be designated and tracked as either program development jobs or as
production jobs.
(B) 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 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.
(C) 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.
(D) 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.
(E) The supercomputer 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.
(F) 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.
(xv) 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.
(xvi) The security personnel, under the guidance of the
exporter's representatives, [[Page 25329]] will change passwords for
individuals frequently and at unpredictable intervals.
(xvii) 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.
(xviii) Misuse of passwords by users will result in denial of
further access to the supercomputer.
(xix) The exporter's representatives will install a strict
password system and provide guidance on its implementation.
(xx) Only the exporter's representatives will be trained in
making changes in the password system and only they will make such
changes.
(xxi) No supercomputer will be networked to other computers
outside the supercomputer center without prior authorization from
BXA.
(xxii) 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:
(A) The terminals will have physical security equivalent to the
safeguards at the computer using facility;
(B) The terminals will be constrained to minimal amounts of
computer resources (CPU time, memory access, number of input-output
operations, and other resources);
(C) The terminals will not be allowed direct computational
access to the supercomputer (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 supercomputer)--all terminals
will be connected to the supercomputer system by a dedicated access
line and a network access controller.
(xxiii) There will be no direct input to the supercomputer 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
supercomputer.
(xxiv) The exporter will perform all maintenance of the
supercomputer system.
(xxv) 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.
(xxvi) No development or production technology on the
supercomputer system will be sent with the supercomputer to the
ultimate consignee.
(xxvii) 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.
(xxviii) 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.
(xxix) 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 supercomputer
usage and the implementation of the safeguards.
(xxx) The installation and operation of the supercomputer will
be coordinated and controlled by the following management structure:
(A) Steering Committee. The Steering Committee will be comprised
of nationals of the importing country who will oversee the
management and operation of the supercomputer.
(B) 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.
(C) 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 supercomputer. 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.
(xxxi) 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 supercomputer under the conditions of the license.
This group shall have the following responsibilities:
(A) Review all requests for supercomputer usage and make
recommendations concerning the acceptability of all projects and
users;
(B) Submit these recommendations to the Security Staff and
Technical Consultative Committee for review and approval (see
paragraph (c)(2)(xxviii) of this Supplement);
(C) Establish acceptable supercomputer resource parameters for
each project and review the results to verify their conformity with
the authorized end-uses, restrictions, and parameters; and
(D) Prepare monthly reports that would include a description of
any runs exceeding the established parameters and submit them to the
security staff.
(xxxii) 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 supercomputer,
including access to the following:
(A) Usage logs, which should include, at a minimum, computer
users, dates, times of use, and amount of system time used;
(B) Computer access authorization logs, which should include, at
a minimum, computer users, project names, and purpose of projects.
(xxxiii) 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
supercomputer usage. This inspection will include:
(A) Analyzing any programs or software run on the supercomputer
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;
(B) Checking current and archived usage logs for conformity with
the authorized end-uses and the restrictions imposed by the license;
and
(C) Verifying the acceptability of all computer users in
conformity with the authorized end-uses and the restrictions imposed
by the license.
(xxxiv) Usage requests that exceed the quantity of monthly CPU
time specified on the license shall not be approved without prior
written authorization from BXA. Requests for computational access
approval shall include a description of the intended purpose for
which access is sought.
(3) Certification by export control authorities of importing
country. (i) The following importing government certification is
required:
This is to certify that (name of ultimate consignee) has
declared to (name of appropriate foreign government agency) that the
supercomputer (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.
(ii) Other importing government assurances may be required on a
case-by-case basis regarding the prohibited activities set forth in
the licensing policy for these countries.
(4) Supporting documentation. (i) Exports. Applications to
export supercomputers to these countries must be accompanied by one
of the following supporting documents, as required by Part 748 of
this subchapter:
(A) Form BXA-629P (Statement by Ultimate Consignee and
Purchaser);
(B) International Import Certificate (IIC);
(C) Indian Import Certificate;
(D) Bulgarian, Czech, Hungarian, Polish, Romanian, or Slovak
Import Certificates.
(ii) Reexports. Applications to reexport supercomputers to the
following countries must be accompanied by the necessary supporting
documents, as required by Part 748 of this subchapter:
[[Page 25330]]
(A) Bulgaria, Czech Republic, Hungary, Poland, Romania, and
Slovakia. Reproduced copies of the Bulgarian, Czech, Hungarian,
Polish, Romanian, and Slovak Import Certificates;
(B) India. A reproduced copy of the Indian Import Certificate;
(C) South Africa. A Form BXA-629P (Statement by Ultimate
Consignee and Purchaser).
(d) Prohibited Activities
An ultimate consignee who is authorized to use a supercomputer,
except consignees authorized in accordance with licensing policy for
supplier countries and countries subject to minimum security
conditions, may not be involved in activities related to any of the
following:
(1) The design, development, production or use of:
(i) Nuclear explosive devices, including any components or
subsystems of such devices;
(ii) Complete rocket systems or unmanned air vehicle systems
capable of delivering nuclear weapons, including any components or
subsystems of such devices;
(2) The design, development, production, use, or maintenance of
nuclear fuel cycle facilities (including facilities related to
nuclear propulsion) or heavy water production plants in countries
that are listed in Country Group D:1 (see Supplement No. 1 to Part
740 of this subchapter);
(3) Any projects or facilities for the design, development,
production, stockpiling, or use of chemical or biological weapons;
(4) A violation of the export laws and regulations of a supplier
country or involvement in clandestine procurement activities or
other activities where there is a significant risk of diversion from
the authorized end-uses or a likelihood that supercomputer security
safeguards would not be effectively implemented.
(e) Definitions
The following are definitions of terms as used in this
Supplement:
(1) Authorized person. A person whose identity and legitimate
bona fides have been established by the ultimate consignee.
Restricted nationals (see paragraph (e)(7) of this Supplement) will
not be considered to be authorized persons for the purposes of this
Supplement.
(2) Commercial end-user. An end-user whose only authorized end-
uses are those described in the list of approved commercial
activities in Sec. 742.12(b)(6) of this Part.
(3) Computational access or usage. Any data processing, or data,
program, or file manipulation (retrieval), done on the
supercomputer.
(4) Independent consultant. A nongovernment firm in the
importing country that is experienced in informatics auditing
procedures and not owned, affiliated, or controlled by the end-user
or by the government of the importing country.
(5) Multiple-purpose end-use. Authorized end-uses in several
areas of expertise with a variety of application packages (e.g.,
university).
(6) National. The term national as used in this section means:
(i) Any individual;
(ii) Any official, agent, or representative of a corporation,
partnership, association, company, or any other kind of
organization; or
(iii) Any official, agent, or representative of a government,
government agency, or any other government organization.
(7) Restricted nationals. The term restricted nationals as used
in this Supplement means:
(i) Nationals of countries subject to the licensing policy
described in Sec. 742.12(b)(4) of this Part (i.e., countries in
Country Group D:1 (see Supplement No. 1 to Part 740 of this
subchapter) and Cuba, Iran, Iraq, Libya, North Korea, and Syria),
except those individuals who have legally immigrated and have become
permanent residents of the United States or Japan, or any of the
countries listed in paragraph (a)(1) of this Supplement; and
(ii) Nationals of the countries listed in Sec. 742.12(b)(3) of
this Part (i.e., Bahrain, Czech Republic, Egypt, Jordan, Lebanon,
Poland, Qatar, Slovakia, Taiwan, and Yemen and countries in Country
Group D:2 (see Supplement No. 1 to Part 740 of this subchapter),
excluding Iran) that are involved in prohibited activities as set
forth in paragraph (d) of this Supplement.
(8) Single-purpose end-use. An authorized end-use in one area of
expertise (e.g., oil exploration).
(9) The following are terms defined elsewhere in the EAR:
(i) Computer using facility;
(ii) Cryptography;
(iii) Network access controller;
(iv) Program;
(v) Software;
(vi) Source code;
(vii) Technology;
(viii) Use; and
(ix) User-accessible programmability.
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 naval 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--The Enhanced Proliferation ControL
Initiative (EPCI) [Catch-all Item List] [Positive List] [Product Scope
for End-Use Limitation]
Supplement No. 3 to Part 744--BXA's ``Know Your Customer'' Guidance
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 744.1 General provisions.
(a) Introduction. This part contains prohibitions against exports,
reexports, and selected transfers to certain end-users and end-uses as
introduced under General Prohibition Four and prohibitions against
exports or reexports to certain end-uses as introduced, under General
Prohibition Five. 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 missile and chemical and biological weapons 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 this subchapter 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 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.
3 to part 744 for guidance.
Sec. 744.2 Restrictions on certain nuclear end-uses.
(a) General prohibition. In addition to the validated license
requirements for items specified on the CCL, you may not export or
reexport to any destination, [[Page 25331]] other than countries in the
Nuclear Suppliers Group as indicated at Country Group A:4 in Supplement
1 to part 740 of this subchapter, any item subject to the EAR without a
validated license if at the time of the export or reexport you know or
have reason to know 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) 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.1,2
\1\ Nuclear explosive devices and items specifically designed or
specially modified for use in designing or fabricating 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 1964, 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.
\2\ Also see Sec. 748.4 of this subchapter 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:3
\3\ 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 informed by BXA. BXA may
inform an exporter or reexporter, either by specific notice or through
amendment to the regulations in this subchapter, 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 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 License Exception 13 for operation technology and License
Exception 14 for sales technology but only to and for use in countries
listed in Country Group A:1 (COCOM Successor Regime) (see Supplement
No. 1 to part 740 of this subchapter) 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 this
subchapter.
(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 or license exception 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. 744.3 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 of 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 this subchapter), 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 non-
proliferation and whether that government is in compliance with its
international obligations in the field of non-proliferation;
(v) The degree to which the government of the importing country
cooperates in non-proliferation policy generally (e.g., willingness to
consult on international non-proliferation issues);
(vi) Intelligence data on the importing country's nuclear
intentions and activities.
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 [[Page 25332]] (see Supplement No. 1 to part 740 of
this subchapter); 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 or through
amendment to the regulations in this subchapter, that a license is
required for a specific export, or for exports 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 validated license requirements of paragraph (a) of
this section. An illustrative list of projects is included in a
footnote to Country Group D:4. Exporters are deemed to have been
informed that an individual validated license is required to export 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, of 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:5 (see Supplement No. 1 to part 740 of this subchapter).
(b) Additional prohibition on exporters informed by BXA. BXA may
inform the exporter or reexporter, either individually or through
amendment to the regulations in this subchapter, that a license is
required for a specific export, or for export 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 validated 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.4
\4\See Supplement No. 1 to part 742 for relevant contract
sanctity dates.
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Sec. 744.5 Restrictions on certain naval 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 at part 740 of this
subchapter 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 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 may, without a license from BXA, export, reexport, or
transfer, in the United States or in any other country,
[[Page 25333]] 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 this subchapter).
(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 this subchapter); 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 this subchapter).
(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 nuclear explosives devices in or by a country
listed in Country Group D:2 (see Supplement No. 1 to part 740 of this
subchapter);
(ii) 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 this subchapter); or
(iii) 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 this subchapter).
(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 1C60, in countries other than those listed in
Country Group A:3 (Australia Group) (See Supplement No. 1 to part 740
of this subchapter).
(b) Additional prohibitions on U.S. persons informed by BXA. BXA
may inform U.S. persons, either individually or through amendment to
the regulations in this subchapter, 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 validated 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 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 may be made of the commodities set forth 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 are5 all of the following:
\5\ Where a license is required, see Secs. 748.2 and 748.4(g).
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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, 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 of the commodities set forth 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 SED is not required
when any of these commodities is exported by U.S. airlines to their own
installations and agents [[Page 25334]] abroad for use in their
aircraft operations.
(3) Applicable commodities. This Sec. 740.12(b) 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 this subchapter);
(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 this subchapter are of non-Naval Petroleum Reserves origin
or derivation (refer to short supply controls in part 754 of this
subchapter);
(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 for the items
specified in paragraph (b) of this section, you may not export or
reexport such parts and accessories 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 6A08, 6A28, 6A29, 6A30,
6A90, 7A01, 7A21, 7A02, 7A22, 7A03, 7A23, 7A04, 7A24, 7A05, 7A25, 7A06,
7A26, 7A27, 7A94, 9A01, 9A21, 9A23, 9A18.a, 9A82.d, 9A91, and 9A94.
Supplement No. 1--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--The Enhanced Proliferation Control Initiative
(EPCI) [Catch-All Item List] [Positive List] [Product Scope for
End-Use Limitation]--[Reserved]
Supplement No. 3--BXA's ``Know Your Customer'' Guidance
Certain provisions in part 744 require an exporter to obtain an
individual validated license if the exporter ``knows'' that any
export otherwise eligible for license exception is for end-uses
involving nuclear, chemical, or biological weapons, or related
missile delivery systems, in named destinations listed in the
regulations.
(a) BXA has issued the following guidance on how individuals and
firms should act under this knowledge standard. This guidance does
not change or revise 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 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 which
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 this subchapter
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.
[[Page 25335]]
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 The Federal Republic of Yugoslavia (Serbia and Montenegro),
Bosnia-Herzegovina, Croatia.
746.7 Rwanda.
746.8 through Sec. 746.16 [Reserved]
746.17 Humanitarian License.
Supplement No. 1 to Part 746--Human-Needs Items
Supplement No. 2 to Part 746--United Nations Embargoes or Other
Special Sanctions Administered by the Office of Foreign Assets
Control: Angola
Supplement No. 3 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, Montenegro,
Slovenia)
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 746.1 Introduction.
(a) Sections 746.2 through 746.6 of this part give the license
requirements and licensing policies for exports to Cuba, Iraq, Libya,
North Korea, and the former Yugoslavia. All the items on the Commerce
Control List (CCL) require a license for export or reexport to these
destinations. In addition, most items subject to the EAR, but not
included on the CCL, require a license to these destinations. Most
items requiring a license to these destinations are subject to a
general policy of denial. The Department of the Treasury's Office of
Foreign Assets Control (OFAC) authorizes by general license (as defined
in 31 CFR part 500) all transactions incident to the export of goods
from the U.S. to Cuba and North Korea authorized by BXA. No license
from OFAC is necessary. BXA is also responsible for licensing reexports
of most items subject to the EAR, but additional authorization is
required by OFAC if the reexport is being made by persons subject to
U.S. jurisdiction (as defined in 31 CFR part 500), including foreign
subsidiaries of U.S. firms. OFAC also controls other transactions by
U.S. persons involving Cuba or North Korea or specially designated
nationals of those countries, and exports of non U.S.-origin items by
U.S. persons from third countries to Cuba or North Korea.
(b) Section 746.7 of this part explains the special controls on the
sale or supply to Rwanda of arms and related material of all types.
Such military-related items are subject to a general policy of denial,
consistent with a United Nations Security Council Resolution. These
special controls also complement controls on items included on the U.S.
Munitions List administered by the Department of State under the
International Traffic in Arms Regulations (22 CFR parts 120 through
130).
(c) Section 746.17 of this part gives the eligibility requirements
for donations of human-needs items to certain embargoed destinations
under the Humanitarian License.
(d) Supplement No. 1 to this part lists the human-needs items that
may be approved under the Humanitarian License or that may be approved
under regular license procedures when not qualifying for the
Humanitarian License.
(e) Supplement No. 2 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 Angola.
(f) Supplement No. 3 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.
Sec. 746.2 Cuba.
(a) License requirements. You will need a license to export or
reexport all items subject to the EAR (see part 732 of this subchapter
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 this subchapter (License Exceptions).
(i) Temporary Exports (TMP) by the news media (see Sec. 740.8(b)(8)
of this subchapter).
(ii) Operating Technology and Software (OTS) for legally exported
commodities (see Sec. 740.17 of this subchapter).
(iii) Sales Technology (STS) (see Sec. 740.18 of this subchapter).
(iv) Software Updates (SUD) for legally exported software (see
Sec. 740.19 of this subchapter).
(v) Parts (PTS) for one-for-one replacement in certain legally
exported commodities (see Sec. 740.10 of this subchapter).
(vi) Baggage (BAG) (see Sec. 740.12 of this subchapter).
(vii) Governments (GOV) (see Sec. 740.15 of this subchapter).
(viii) Gift parcels (GFT) (see Sec. 740.16 of this subchapter).
(ix) Items in transit (TUS) from Canada through the U.S. (see
Sec. 740.9(b)(4) of this subchapter).
(x) Aircraft and Vessels (A&V) for certain aircraft on temporary
sojourn (see Sec. 740.13(a) of this subchapter).
(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) Humanitarian License. BXA may issue licenses to organizations
eligible for the Humanitarian License for exports of donated human-
needs items. See Sec. 746.17 of this part for this license and
Supplement No. 1 to part 746 for a list of human-needs items that may
be approved.
(2) Licenses for donations of human-needs items. BXA will review on
a case-by-case basis applications for exports of donated human-needs
items listed in Supplement 1 to part 746 that do not qualify for the
Humanitarian License. Such applications include single transactions
involving exports to meet emergency needs.
(3) 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 produce; and
(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 [[Page 25336]] 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.
(4) 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.
(5) Exports from third countries to Cuba of nonstrategic 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 in the third country 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 732 of this subchapter for
instructions on how to calculate value.
(iii) You are not a U.S.-owned or -controlled entity in a third
country as defined by the OFAC 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)(3) 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)(4) of
this section.
(D) Your transaction is for the export of donated food to
individuals or non-governmental organizations in Cuba.
(c) 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.
Sec. 746.3 Iraq.
(a) License requirements. For foreign policy reasons, you will need
a license to export or reexport all items subject to the EAR (see Part
732 of this subchapter) to Iraq, except as noted in this section. OFAC
administers an embargo against Iraq under the authority of the
International Emergency Economic Powers Act of 1977 and in conformance
with United Nations Security Council Resolutions. The applicable OFAC
regulations, the Iraqi Sanctions Regulations, are found at 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. An authorization from OFAC
constitutes authorization under the EAR, and no license from BXA 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.
(i) Baggage (BAG) (See Sec. 740.12 of this subchapter).
(ii) Governments (GOV) (See Sec. 740.15 of this subchapter).
(iii) Parts (PTS) for one-for-one replacement in certain legally
exported goods (See Sec. 740.10 of this subchapter).
(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) Licensing policy. Under Executive Orders 12722 of August 2,
1990 and 12724 of August 9, 1990, and consistent with United Nations
resolutions, exports and reexports requiring a license are subject to a
general policy of denial. You are advised to consult with OFAC
concerning export and reexport authorization.
(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.
Sec. 746.4 Libya.
(a) Introduction. The Department of Commerce maintains
comprehensive controls on exports and reexports to Libya. The
Department of the Treasury, Office of Foreign Assets Control (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) Definitions.--(1) Transshipment. For purposes of this section,
transshipment means exports from the United States to third countries
if the exporter knows, or has reason to know, the items are intended
for reshipment to Libya (including passage through, or storage in,
intermediate destinations) without coming to rest in a third country.
The term ``transshipment'' covers goods intended specifically for
substantial transformation or for incorporation in a third country into
products for use in Libya in the petroleum or petrochemical industry.
The term ``transshipment'' also covers technology intended specifically
for use in a third country in the manufacture of, or incorporation
into, products for use in Libya in the petroleum or petrochemical
industry. See 31 CFR 550.409.
(2) Reexport. For purposes of this section, reexport means the
export of an item from a third country to Libya when Libya is not the
intended ultimate destination at the time of export from the United
States. Exports of foreign-manufactured items incorporating U.S.-origin
parts, component or materials, and exports of foreign-manufactured
items based on U.S. technology which are not subject to OFAC license
requirements as ``transshipments'' may be subject to BXA license
requirements. See part 732 of this subchapter.
(c) License requirements. You will need a license to export and
reexport all items subject to the EAR (see part 732 of this subchapter)
to Libya, except donations of items intended to relieve human
suffering, such as food, clothing, medicine and medical supplies
intended strictly for medical purposes, or as follows.
(1) Exports and transshipments. You will need a license from OFAC
for all direct exports and transshipments to Libya except the
following:
(i) Exports eligible for the following BXA License Exceptions: (A)
Baggage [[Page 25337]] (BAG) (see Sec. 740.12 of this subchapter). (B)
Governments (GOV) (see Sec. 740.15 of this subchapter). (C) Gift
parcels (GFT) (see Sec. 740.16 of this subchapter).
(ii) As noted in paragraph (a) of this section, an authorization
from OFAC constitutes authorization under the Export Administration
Regulations. Except as noted in Sec. 746.4(b)(1) of this section, you
may not use any BXA License Exception or other BXA authorization to
export or transship to Libya.
(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 this subchapter, or any
national security-controlled foreign-produced direct product of U.S.
technology or software, as defined in Sec. 734.2(b)(3) of this
subchapter, exported from the U.S. after March 12, 1982. Exceptions to
the controls maintained by BXA, insofar as reexports are concerned,
include the following:
(i) Temporary Exports (TMP) reexports by the news media (see
Sec. 740.8(b)(8) of this subchapter).
(ii) Operating Technology and Software (OTS) for legally exported
commodities (see Sec. 740.17 of this subchapter).
(iii) Sales Technology (STS) (see Sec. 740.18 of this subchapter).
(iv) Software Updates (SUD) for legally exported software (see
Sec. 740.19 of this subchapter).
(v) Parts (PTS) for one-for-one replacement in certain legally
exported commodities (Sec. 740.10 of this subchapter).
(vi) Baggage (BAG) (Sec. 740.12 of this subchapter).
(vii) Aircraft and Vessels (A&V) for vessels only (see
Sec. 740.13(c)(1) of this subchapter).
(viii) Governments (GOV) (see Sec. 740.15 of this subchapter).
(ix) Gift parcels (GFT) (see Sec. 740.16 of this subchapter).
(3) Applications submitted to BXA for reexport authorization 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?
(d) Licensing policy. (1) You should consult with OFAC regarding
licensing policy for direct exports and transshipments to Libya.
(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
determined by BXA not to be readily available from sources outside the
United States; and
(iii) Goods and technology and software destined for the
petrochemical processing complex at Ras Lanuf, 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 be primarily related to the township, utilities or
harbor.
(iv) The following items subject to international sanctions:
(A) Aircraft or aircraft components to Libya or the provision of
engineering and maintenance servicing of Libyan aircraft or aircraft
components;
(B) 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.
(C) 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;
(D) Items listed in paragraphs (d)(1) through (5) and equipment and
supplies for the manufacture or maintenance of such items:
(1) 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.
(2) Equipment designed for use in crude oil export terminals, as
follows:
(i) Loading buoys or single point moorings;
(ii) Flexible hoses for connection between underwater manifolds
(plem) and single point mooring and floating loading hoses of large
sizes (from 12-16 inches); or
(iii) Anchor chains.
(3) 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:
(i) Loading pumps of large capacity (4000 m3/h) and small head
(10 bars);
(ii) Boosting pumps within the same range of flow rates;
(iii) Inline pipe line inspection tools and cleaning devices (i.e.,
pigging tools) (16 inches and above); or
(iv) Metering equipment of large capacity (1000 m\3\/h and above).
(4) Refinery equipment, as follows:
(i) Boilers meeting American Society of Mechanical Engineers 1
standards;
(ii) Furnaces meeting American Society of Mechanical Engineers 8
standards;
(iii) Fractionation columns meeting American Society of Mechanical
Engineers 8 standards;
(iv) Pumps meeting American Petroleum Institute 610 standards;
(v) Catalytic reactors meeting American Society of Mechanical
Engineers 8 standards; or
(vi) Prepared catalysts, including catalysts containing platinum
and catalysts containing molybdenum.
(5) Spare parts for any of the above.
(3) Notwithstanding the presumptions of denial in paragraphs
(d)(2)(i) through (iii), licenses will generally be issued when the
transaction involves items not included in paragraph (d)(2)(iv).
(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) Use 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
(d)(2)(iv), applications for reexports under a contract pre-dating
December 3, 1993, 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 (d)(2)(iv):
(i) Reexports of items subject to national security controls that
were [[Page 25338]] 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 (d)(4)(i)(C), 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 export of reasonable quantities for civil use of
off-highway wheel tractors of carriage capacity of 9t (10 tons) or
more, as defined in ECCN 9A92, provided such tractors are not for uses
covered by United Nations Security Council Resolution 883 of November
11, 1993.
(7) All other exports and reexports not covered by United Nations
resolutions will generally be approved, subject to any other licensing
policies applicable to a particular transaction.
(e) 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 at 31 CFR part
550.
Sec. 746.5 North Korea.
(a) License requirements. You will need a license to export or
reexport items subject to the EAR (see part 732 of this subchapter) 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
following License Exceptions. To determine scope and eligibility
requirements, you will need to turn to the sections or specific
paragraphs of part 740 of this subchapter (License Exceptions).
(i) Temporary Exports (TMP) by the news media (see Sec. 740.8(b)(8)
of this subchapter).
(ii) Operating Technology and Software (OTS) for legally exported
commodities (see Sec. 740.17 of this subchapter).
(iii) Sales Technology (STS) (see Sec. 740.18 of this subchapter).
(iv) Software Updates (SUD) for legally exported software (see
Sec. 740.19 of this subchapter).
(v) Parts (PTS) for one-for-one replacement in certain legally
exported commodities (Sec. 740.10 of this subchapter).
(vi) Baggage (BAG) (Sec. 740.12 of this subchapter).
(vii) Aircraft and Vessels (A&V) for fishing vessels under
governing international fishery agreements and foreign-registered
aircraft on temporary sojourn in the U.S.1 (see Sec. 740.13(a) and
(c)(1) of this subchapter).
\1\Export of U.S. aircraft on temporary sojourn is prohibited by
the Department of Transportation, 44 CFR Ch. IV, Part 403 ``Shipping
restrictions: North Korea (T-2).''
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(viii) Governments (GOV) (see Sec. 740.15 of this subchapter).
(ix) Gift parcels (GFT) (see Sec. 740.16 of this subchapter).
(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) Humanitarian License. BXA may issue licenses for exports of
donated human-needs items to organizations eligible for the
Humanitarian License. See Sec. 746.17 of this part for this license and
Supplement No. 1 to part 746 for a list of human-needs items that may
be approved.
(2) BXA will review on a case-by-case basis applications for export
of donated human-needs items listed in Supplement No. 1 to Part 746
that do not qualify for the Humanitarian License. Such applications
include single transactions involving exports to meet emergency needs.
(3) 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. 1 to part 746, but are not limited
solely to small scale projects at the local level.
(c) 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 The Federal Republic of Yugoslavia (Serbia and Montenegro),
Bosnia-Herzegovina, Croatia.
(a) Federal Republic of Yugoslavia (Serbia & Montenegro). BXA
maintains the controls reflected on the Country Chart in Supplement 1
to part 738 of this subchapter on the Federal Republic of Yugoslavia.
In addition, 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 goods or technology 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 at 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. BXA maintains the controls reflected on the
Country Chart in Supplement 1 to part 738 of this subchapter on Bosnia-
Herzegovina. In addition, OFAC prohibits any dealing by a U.S. person
relating to the export to, or transshipment 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 at 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 Bosnia-
Herzegovina when the export or [[Page 25339]] reexport is destined to
areas in the Republic of Bosnia-Herzegovina not controlled by the
Bosnian Serb forces. You may also 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. BXA maintains the controls reflected on the Country
Chart in Supplement 1 to part 738 of this subchapter on Croatia. In
addition, 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 at 31 CFR part 585. U.S. persons
should apply to OFAC for authorization to engage in trade-related
transactions involving to 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. You may also 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.
Sec. 746.7 Rwanda.
(a) Introduction. In addition to the controls on Rwanda reflected
on the Country Chart in Supplement 1 to part 738 of this subchapter,
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 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 1A88F, 2B85F, 5A80D, 6A02A.a.1,a.2,a.3 and c,
6A03A.b.3 and b.4, 6D21B, 6E01A, 6E02A, 9A22B, 9A91F.a, 0A84C, 0A86F,
and 0A88F.
(2) This embargo was effective 11:59 p.m. EDT on May 26, 1994.
(3) Definitions. For the purposes of this embargo, 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
military-related equipment 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 these regulations.
(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).
Sec. 746.8-Sec. 746.16 [Reserved]
Sec. 746.17 Humanitarian License.
A Humanitarian License is established that authorizes exports to
certain embargoed destinations of donated goods to meet basic human-
needs by a group or organization that has experience in maintaining a
verifiable system of distribution that ensures delivery to the intended
beneficiaries.
(a) Basic human needs. Under this license, 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. This license permits the export
of goods that are suitable for small-scale local improvement projects;
for example: seeds, tools, fertilizers, small-scale irrigation pumps,
and agricultural materials and machinery suited to small-scale farming
operations. It encompasses the export of goods of the kind normally
donated by charitable organizations that address basic human needs
directly and at the local level, where specific improvement projects
can be closely monitored and adjusted as needed to ensure that the
donated items are being delivered to the intended beneficiaries. The
Humanitarian License does not, however, permit exports for large-scale
projects of the kind associated with comprehensive economic growth,
such as dams and hydroelectric plants.
(b) 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 to the intended
beneficiaries.
(c) Donations. To qualify for export under this license, the items
must be provided free of charge to the beneficiary. This requirement
reflects a distinction between freely-donated goods of a people-to-
people nature of the type exported by U.S. private and voluntary
charitable organizations and those goods of a commercial nature, which
are excluded from this license. 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.
(d) Ineligible items. Among those items not eligible under this
license are those controlled for national security, chemical,
biological and nuclear non- [[Page 25340]] proliferation, missile
technology or crime control reasons in the ``Reason for Control''
paragraph on the Commerce Control List (CCL) (Supplement No. 1 to part
774 of this subchapter) and communications intercepting devices (ECCN
5A80).
(e) Eligible items. Supplement No. 1 to this part 746 lists the
kinds of items that have been determined to meet basic human needs. The
exporter, however, is required to abide by the guidelines in paragraph
(a) of this section to ensure that a given item to be exported is
encompassed by this license. For example, even though ``generators''
are included in the Supplement, only small generators suitable and
necessary to administer and operate a donative program are authorized
for export by this license. In like manner, ``laboratory supplies and
equipment'' covers items intended for use in local medical laboratories
such as refrigerators, sterilization equipment and microscopes. If a
license holder is in doubt whether an item is included within the scope
of one of the entries listed in the Supplement, or seeks authorization
for items not included in the Supplement, a letter of inquiry should be
submitted to the Bureau of Export Administration, Office of Exporter
Services, Rm. 2627, U.S. Department of Commerce, Washington, DC 20230.
The request should describe the type of goods intended for export and
how it is intended to meet basic human needs. The Office of Exporter
Services will notify the exporter whether the item is authorized for
export by this license and any special conditions that may apply to the
export.
(f) Distribution. To qualify for a Humanitarian License, the donor
must demonstrate a means of ensuring that the donations exported are in
fact used to meet the basic human needs of the intended beneficiaries.
This requires a monitoring system that would alert the donor if goods
are being diverted. See paragraph (g)(5) of this section for ways by
which this requirement may be satisfied.
(g) Application procedure. To apply for a Humanitarian License, the
applicant shall prepare a Narrative Statement, in duplicate, explaining
the nature and function of the donative program. This Narrative
Statement should be submitted to the Bureau of Export Administration,
Office of Exporter Services, Room 2627, Department of Commerce,
Washington, DC 20230. The Narrative Statement must include, as a
minimum, the following information:
(1) The applicant organization's identity and past experience as an
exporter of goods to meet basic human needs;
(2) A specific list of past and current countries to which the
donative programs have been and are being directed, as well as any
countries to which such programs are now planned, with particular
reference to donative programs in embargoed destinations;
(3) A description of the types of projects and commodities involved
in the donative programs;
(4) A description of the specific class(es) of beneficiaries of
particular donated goods intended to be exported under this license.
(5) A description of the arrangements to ensure proper distribution
of the donated goods. These 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;
(iii) An agreement to utilize the services of a charitable
organization that has a monitoring system in place; and
(6) Information concerning the source of funding for the donative
programs and the projected annual value of exports under the license.
When a narrative statement is approved, the Office of Exporter Services
will issue a letter authorizing export of eligible donations during the
validity period, subject to the provisions of the Export Administration
Regulations and to the terms and conditions contained in the letter.
Attached to this letter will be a validated copy of the narrative
statement with a license number and an expiration date. This letter
together with the validated copy of the Narrative Statement constitutes
the ``Humanitarian License.'' The license number must be displayed on
the Shipper's Export Declaration (Commerce Form 7525-V.)
(h) Duration of license. (1) A Humanitarian License granted under
this section will be valid for two years from the last day of the month
in which it is issued. The license may be extended for two-year periods
thereafter by submitting a certification to the Office of Exporter
Services. This certification must state the following:
For the purpose of requesting a two year extension of
Humanitarian License No.__________, I (we) certify that all material
facts concerning the license outlined in the Narrative Statement
submitted to the Office of Exporter Services remain the same and
that I continue to comply with the terms and conditions of said
license and with the Export Administration Regulations (EAR). I am
authorized to make this statement on behalf of our organization.
----------------------------------------------------------------------
(Name and Title)
----------------------------------------------------------------------
(Signature and Date)
(2) If any material facts concerning the license have changed from
those described in the Narrative Statement, the exporter must submit an
explanation of those changes at the time that renewal of the license is
sought. This request for an extension of the Humanitarian License
should be submitted 90 days prior to the license's expiration date.
When this extension request is approved, the Office of Exporter
Services will issue a validated letter with a new license number and
expiration date.
(i) Revocation of license. In addition to any enforcement action
under part 764 of this subchapter, the license may be suspended or
revoked if any of the following occurs:
(1) The exporter discontinues use of the license for a period of
more than one year;
(2) The exporter has failed to comply with the guidelines of the
license, including the export of items that do not qualify as donations
intended to meet basic human needs or the acceptance of any form of
payment for the items donated;
(3) The donations are diverted to an unauthorized party;
(4) Any provision of the Export Administration Act or any
regulation, order, or license issued pursuant thereto has been
violated.
(j) Recordkeeping requirements. In addition to the renewal request
discussed in paragraph (h) of this section, any exporter granted a
Humanitarian License must maintain records of all shipments made under
that license, the values of said shipments, the countries and
beneficiaries to which the donations are sent, the Department of
Commerce letter and Narrative Statement, and any party charged with
distributing the donations to the beneficiaries. These records must be
available for review upon request by the Office of Export Enforcement.
Supplement 1 to Part 746--Kinds of Items That May Be Donated To Meet
Basic Human Needs Under the Humanitarian License
The following is a list of the kinds of items that have been
identified as meeting basic human needs. The list is not definitive but
will be amended on an ongoing basis to reflect additional items, as
they are identified, that meet [[Page 25341]] these needs. The list is
divided into categories that parallel the five basic human needs:
health, food, clothing, shelter, and education. A degree of overlap
exists, however, since an item listed as meeting one need may serve as
well to meet additional needs. A sixth category of items is added to
cover the non-commercial export of basic support equipment and supplies
necessary to operate and administer the donative programs. The list is
limited by the guidelines outlined in Sec. 746.17(a) of this part,
which confine the scope of the list to those items appropriate in
addressing basic human needs through small-scale projects at the local
level. Each item itself must be able to be described as ``basic'' and
``small-scale'' if it is to be eligible for export under this license.
If the exporter is unsure whether a prospective donation falls within
these guidelines, the procedure outlined in Sec. 746.17(e) of this part
should be followed. Where applicable, replacement and spare parts for
items that qualify for export under this Supplement may also be
exported. Specific goods that may not be exported under a Humanitarian
License are described in Sec. 746.17(d) of this part.
Note: Motorized vehicles, watercraft and aircraft are not
included in this Supplement. Requests to export such items to meet
basic human needs may be made under the procedure described in
Sec. 746.17(e) of this part.
(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
Supplement 2 to Part 746--United Nations Embargoes Administered by OFAC
(a) Angola. BXA maintains controls on Angola as reflected on the
Country Chart in Supplement 1 to part 738 of this subchapter. (See
also section 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 3 to Part 746--United Nations Arms Embargoes Administered by
the State Department
(a) Former Socialist Federal Republic of Yugoslavia (Bosnia-
Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia,
Montenegro, Serbia, 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, Montenegro, Serbia, 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.
PART 748--APPLICATIONS (CLASSIFICATION, ADVISORY, AND LICENSE) AND
DOCUMENTATION
Sec.
748.1 General provisions.
748.2 Where to obtain the necessary forms.
748.3 Classification and Advisory Opinion requests.
748.4 Parties to the transaction.
748.5 Provisions related to applying for a license.
748.6 Disclosure and substantiation of facts on license
applications.
748.7 General instructions for license applications.
748.8 Additional license application requirements.
748.9 Support documentation for license applications.
748.10 Import and End-User Certificates.
748.11 Statement by Ultimate Consignee and Purchaser.
748.12 Special provisions.
748.13 Delivery Verification.
748.14 Mailing address for applications and documentation.
Supplement No. 1--BXA-748P, BXA-748P-A; Item Appendix, and BXA-748P-B;
End-User Appendix Multipurpose Application Instructions
Supplement No. 2--BXA-711, Statement by Ultimate Consignee and
Purchaser Instructions
Supplement No. 3--Authorities Administering Import Certificate/Delivery
Verification (IC/DV) and End Use Certificate Systems in Foreign
Countries
Supplement No. 4--U.S. Import Certificate and Delivery Verification
Procedure
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924. [[Page 25342]]
Sec. 748.1 General provisions.
(a) Scope. (1) The provisions of this part apply to all
applications whether submitted in writing or electronically for
transactions subject to the Export Administration Regulations (EAR).
All terms, conditions, provisions, and instructions including the
applicant's certification, 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.
(2) BXA will give a formal licensing decision only through the
review of a license application or specific classification or advisory
opinion request submitted in writing to BXA. Such decisions are based
upon the application or request and information submitted concerning
all facts relevant to the transaction supported by all required
documentation.
(b) Reserved.
Sec. 748.2 Where to obtain the necessary forms.
(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. A Forms Supplement containing samples
of the most commonly used export control forms is included as a
supplement to the EAR.
Sec. 748.3 Classification and Advisory Opinion requests.
(a) Introduction. You may ask BXA to classify your item and 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, or destination, BXA will advise you whether a license is required
to export a particular item(s), and whether or not a license is likely
to be granted. This type of request is commonly referred to as an
``Advisory Opinion''.
(1) Classification and Advisory Opinion requests must be submitted
using Form BXA-748P; Multipurpose Application. Please see the
instructions contained in Supplement No. 1 to part 748 to complete the
Blocks identified for each type of request. Both requests must be sent
to BXA at one of the addresses listed in Sec. 748.14 of this part. Be
certain that your request does not omit any essential information or is
otherwise incomplete.
(i) Each request involving particular items must be limited to 5
items. Exceptions may be made on a case-by-case basis for several
related items if the relationship between the items is satisfactorily
substantiated in the request. All Classification and Advisory Opinion
requests (that necessitate BXA verifying a classification) must be
supported by any descriptive literature, brochures, precise technical
specifications or papers that describe the items in sufficient
technical detail to enable classification or verification by BXA.
(ii) Your specific request should be stated in Block 24 on the
application, whether you are requesting a Classification or Advisory
Opinion. If your request does not fit in this Block, you may enter the
words ``See Attached Request'' in Block 24, and attach your written
request to the application.
(b) Classification requests. If you are submitting a Classification
request you must complete Blocks 1 through 5, 14, 22 and 25 on the
application. 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 request.
(c) Advisory Opinion requests. If you are submitting a written
Advisory Opinion request, you must complete Blocks 1 through 5, 14 and
25 on the application. In addition you may need to complete the
following Blocks based on the nature of your request:
(1) Blocks 16, 17, 18, or 19 when your request involves parties to
a proposed transaction;
(2) Block 21 when your request involves a specific end-use; or
(3) Block 22 when your request involves a particular item.
Sec. 748.4 Parties to the transaction.
(a) Definitions of parties in interest--(1) Applicant. (i) 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.
(ii) 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.
(iii) 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 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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,
[[Page 25343]] is not acceptable as the ultimate consignee.
(b) Reserved.
Sec. 748.5 Provisions related to applying for a license.
(a) Licensing action. License applications may be approved in whole
or in part, denied in whole or in part, or returned without action.
However, if you specifically request, the license application will be
considered as a whole and either approved or denied in its entirety.
You will be notified of the action taken on your license application.
(b) Prohibited from applying for a license. No one convicted of a
violation of one of the statutes specified in Sec. 11(h) of the Export
Administration Act, as amended, at the discretion of the Secretary of
Commerce, is eligible to apply for any license for a period up to 10
years from the date of the conviction.
(c) Disclosure of prior action on a shipment. If you have obtained
a license without disclosure of the facts described in Sec. 748.6(a) of
this part, where applicable, 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.
(1) Licenses for items subject to detention. If you submit a
license application for items that you know or have reason to know have
been detained 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 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.
(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) Second application. You may not submit a second license
application covering the same proposed transaction while the first is
pending action by BXA.
(f) Resubmission. If a license application is returned without
action to you 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. You must attach
the original license application returned without action to your new
license application.
(g) 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 above. 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 show
that a valid emergency exists. You may be specifically requested to
supply these or other documents not included with your submission.
(ii) An acknowledgement by you that any license issued under these
emergency procedures will be valid only until the end of the month
following the month in which it is issued and that it may 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 of this part. If you decide to use an overnight courier, use
the address listed in Sec. 748.14 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(f) of this subchapter.
Sec. 748.6 Disclosure and substantiation of facts on license
applications.
(a) Disclosure requirement--(1) Full disclosure. You, as the
applicant, are required to make the fullest 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 and so
that the identity and location of the persons who know the most about
the transactions may be easily ascertained in the event they must be
contacted for additional information. 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 an attachment to your license application.
(i) Parties. The names of all the parties who are concerned with or
interested in the proposed export or reexport. This includes all
parties participating on their own account: the applicant as exporter
or reexporter, the ultimate consignee, the intermediate consignee, and
the purchaser, as defined in Sec. 748.4(a) of this part. If the license
application is filed for an account other than that of the applicant,
the agent, as [[Page 25344]] applicant must disclose the name of the
agent's principal.
(ii) Identification of principal. Where more than one person in a
transaction can fairly be described as being a principal, the license
application should be accompanied by a statement giving the names and
addresses of all such persons and their roles in the transaction.
(2) Reserved.
(b) Orders and other material facts--(1) Orders involving foreign
agents. If you are a foreign agent of a U.S. exporter, you are not
required to have in your possession an order before submitting a
license application if the order covers items intended for general
resale by you to presently unknown end-users. In all other
circumstances, the order must be transmitted to the U.S. exporter
before the license application is submitted to BXA.
(2) Requirements for other types of orders. A license application
must be based on an order. An ``order'' means a communication from a
person in a foreign country or that person's representative expressing
an intent to import items from you or order party, as defined in
Sec. 748.4(b) of this part. While an order must, in any case, be more
than a mere business inquiry relating to a possible export or reexport,
it need not be an agreement that can presently be executed or that
would become a binding contract upon acceptance. Additionally, an order
need not be an unconditional offer to buy. An order, for instance, may
be contingent upon certain variable conditions such as market price,
time of delivery, availability of the items in kinds and quantities
desired, and other undetermined factors. Such a contingent offer still
constitutes an order within the meaning of these provisions. Similarly,
a continuing or ``open'' order that remains at all times flexible in
some respects may be acceptable. If, however, all of the terms of the
order are not finally determined before a license application is
submitted, all negotiations toward the settlement of the terms must
have been advanced sufficiently to establish the intent of the person
placing the order to consummate the proposed transaction. BXA will
consider granting a waiver of this order requirement in situations
where you are able to show that an exception is warranted. Some
examples of reasons that, if fully substantiated, might warrant an
exception are:
(i) An unusual expenditure of time, money, or technical skill, in
excess of ordinary sales expenses is necessary before negotiations for
an order may be pursued and before a bid can be submitted or an order
obtained.
(ii) The applicant is under an unusual obligation to export or
reexport items covered because of a special trade or industry practice.
(iii) The export or reexport involves a sample, gift, relief, or
charitable shipment, or other shipment where an order is not normally
an element of the transaction.
(3) Request for waiver of ``order'' requirement. A statement
explaining in full the reason(s) for the requested exception, and any
documents that substantiate your request, must be submitted with your
license application. If it is not possible to obtain the required
documentation at the time the waiver request is submitted, you should
submit the documents upon receipt. If the exception request is granted
and the license is issued, certain conditions or limitations on the
export or reexport may be imposed.
(c)(1) Documentary Evidence you must have in your possession.
Before filing a license application for a license, you, as the
applicant, should have in your possession documentary evidence of the
order that is referenced on the license application. ``Documentary
evidence'' means any document(s) from the foreign purchaser or the
foreign purchaser's representative that contain the terms and
conditions of an offer to buy the items for which the license is
requested. Such evidence may take the form of a contract signed by both
parties, or of letters, telegrams, facsimiles, confirmations or other
documents that describe the offer of the foreign purchaser to buy or
the acceptance by the foreign purchaser of the exporter's offer to
sell. You, or the order party involved in the transaction, must have in
your possession documentary evidence of the facts related to the
transaction that appear on the license application including:
(i) Country of ultimate destination;
(ii) Names and addresses of the ultimate consignee, intermediate
consignee (if any), purchaser (if other than ultimate consignee), and
any other party to the transaction, whether principal or agent,
including but not limited to brokers, representatives, or other agents
through whom the order was received;
(iii) Quantity, value and description of the items to be exported
or reexported; and
(iv) End-use of the export or reexport.
(2) The printed name, address, or nature of business of the
ultimate consignee or purchaser appearing on a letterhead or order form
will not constitute evidence of either the ultimate consignee or
purchaser's identity, country of ultimate destination, or end-use of
the items described in the license application. This type of
information does not meet the requirement for documentary evidence as
described in Sec. 748.6(c) of this section.
Sec. 748.7 General instructions for license applications.
(a) Application Control Number. Each application form includes a
preprinted Application Control Number. This Application Control Number,
consisting of a letter followed by six digits, is for use by BXA when
processing applications, and by applicants communicating with BXA
concerning pending applications. The Application Control Number is not
a license number. This control number is for use by BXA and by
applicants when communicating with BXA concerning their pending
applications. This number is used for tracking purposes within the U.S.
Government.
(b) Form and instructions. An application for license, whether to
export or reexport, must be submitted on Form BXA-748P, Multipurpose
Application (revised [EFFECTIVE DATE] or later), and Forms 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 part 748. Remember,
your license application is not limited to a single shipment, but may
represent a reasonable estimate of items to be shipped throughout the
validity of the license.
(c) 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 or Form BXA-748P confirming or amplifying information
contained in your license application.
(d) 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 purchase
transaction or other transaction, must be promptly reported to BXA,
whether a license has been granted or the license application is still
under consideration. If a license has been granted, such changes must
be reported immediately to BXA, even [[Page 25345]] though shipments
against the license may be partially or wholly completed.
(e) Applying electronically for a license, Classification or
Advisory Opinion requests. 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 that any electronic application be resubmitted in
writing, in whole or in part for any reason, including the desire of
BXA in a particular case to receive documentation in support of the
application that does not lend itself to electronic submission.
(1) Requesting approval to submit applications electronically. Your
company must submit a written request to submit applications
electronically to BXA at one of the addresses identified in Sec. 748.14
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. 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 to be authorized to act for
it in making to electronic submissions under these regulations.
(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. 748.14 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.
(3) Electronic submission of applications. (i) 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.
(ii) License Applications. The electronic submission of a
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 this subchapter. 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.
(4) 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.
(5) 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.
(f) Request for extended 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 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. To request an extended validity
period, include justification for your request in Block 24 on the
application.
(g) 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.
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.
Sec. 748.8 Additional 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 below are addressed in
your license application. Any block not identified below must be
completed in accordance with the instructions contained in Supplement
No. 1 to part 748. All ``blocks'' discussed in this section relate to
those appearing on the 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 the Block 22 on the license
application.
(1) Facts relating to the grade, form, concentration, mixture(s),
or ingredients as may be necessary to identify the item accurately,
and; [[Page 25346]]
(2) In instances where Chemical Abstract Service Registry (C.A.S.)
numbers exist, they 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.
(c) Digital computers 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. If the principal function is
telecommunications, a Composite Theoretical Performance (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. (If
your license application involves a supercomputer, See Sec. 742.12 of
this part for application requirements.)
(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 this subchapter), 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 in 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 6 to Category 4, or that exceed any of the limits specified in
Advisory Notes 3 or 6 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 the 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 this subchapter).
(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 22(e), indicate the specific number of gift parcels
you believe may represent a reasonable estimate of the number of
parcels to be shipped during the validity of the license;
(4) In Block 22(j), enter the phrase ``Gift Parcels'';
(5) In Block 23, indicate a reasonable value approximation
proportionate to the quantity of gift parcels identified in Block
22(e); and
(6) In Block 21, enter the phrase ``For personal use by
recipients''.
(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
this subchapter), 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 a statement
that the shipment is wholly of foreign origin;
(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. 10 stated in
Sec. 734.2(b)(10) of this subchapter 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 Non-proliferation items and end-uses. (1) Statement
requirement. If a license is required to export or reexport items under
Sec. 742.3 of this subchapter, 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. 742.3 of this subchapter; 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 License Exception NSG (See Sec. 740.6 of this
subchapter).
(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; and
(v) In Block 24, if your license application is being submitted
because you know or have reason to know that your transaction involves
a nuclear end-use described in Sec. 744.2 of this subchapter, you must
fully explain the basis for your knowledge that the items are intended
for the purpose(s) described in Sec. 744.2 of this subchapter.
Indicate, if possible, the specific end-use(s) the items will have in
designing, developing, fabricating, or testing nuclear weapons or
nuclear explosive devices or in designing, constructing,
[[Page 25347]] fabricating, or operating the facilities described in
Sec. 742.3 of this subchapter.
(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 may 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) Number and type of data communication interfaces;
(G) 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;
(H) Description of capabilities related to ``real time processing''
and receiving computer aided-design as described in ECCN 2B01.a.2.a and
a.2.b and ECCN 2B01.b.2 and b.3;
(I) 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 2B01;
and
(J) 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 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 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, and a description of the method
for measurement; and
(H) Slide motion test results if required as described in ECCN
2B01.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. Such requests
will not be approved for countries listed in Country Group E:1 (See
Supplement No. 1 to part 740 of this subchapter), but may be approved
only in limited circumstances for countries listed in Country Group
D:1. If you are requesting approval of multiple countries or
consignees, enter the word ``Various'' in Block 18, and list the
countries or consignees in Block 24.
(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
various, 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 reexporting the foreign-made
product incorporating U.S. origin parts, components or materials;
(iv) In Block 22(e), specify the quantity for each foreign-made
product. If this information is unknown, enter ``Unknown'' in Block
22(e);
(v) In Block 22(j), describe the foreign-made product that will be
reexported, 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;
(vi) 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 this subchapter. 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);
(vii) In Block 22(h), enter the digit ``0'' for each foreign-made
product;
(viii) In Block 23, enter the digit ``0'';
(ix) 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
[[Page 25348]] to be incorporated in a larger system. If the end-use is
unknown, state ``unknown'' and describe the general activities of the
end-user;
(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 this subchapter) 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 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), enter the following information, 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 must
include the 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, 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 country listed in Country Group D:1 and E:2 (see
Supplement No. 1 to part 740 of this subchapter):
Uncertain; however, shipment(s) will not be made to Country Groups
D:1 or E:2.
(iii) Provide information as described in Sec. 748.8(l)(1)(ii) of
this section for vessels or information contained in
Sec. 748.8(l)(2)(ii) of this section 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. License applications received without
full technical specifications will be promptly returned without action,
without prior notice from BXA.
(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.
(m) Robots. If you are submitting a license application for the
export or reexport of items controlled by ECCNs 2B07 or 2D01 (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;
(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 2B07, 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 this subchapter 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
this subchapter), you must obtain [[Page 25349]] 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 directly to a country listed in Country Group D:1 or E:2
(See Supplement No. 1 to part 740 of this subchapter). 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. 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. If you are submitting
a license application to export or reexport technology relating to any
of these items 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 Sec. 748.8(q)(2) of this section.
(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 this subchapter))
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 two years of the date of export (or reexport),
unless other disposition has been authorized in writing by the
Bureau of Export Administration.
Sec. 748.9 Support documentation 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 countries:
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, and 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 Sec. 730.3 of this subchapter. Remember, if
both the ultimate consignee and purchaser are 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, to a member agency in the
foreign country.
(4) The license application is submitted to export or reexport
items for temporary exhibition, demonstration, or testing purposes.
(5) The license application is submitted for items controlled for
short supply reasons (See part 754 of this subchapter).
(6) The license application is submitted under the Special
Comprehensive License described in part 752 of this subchapter.
(b) Support documentation requirements. Certain license
applications 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
this subchapter. 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.
(ii) If no, your transaction may require a Statement by Ultimate
Consignee and Purchaser. Proceed directly to Sec. 748.11 of this part.
(2) Does your transaction involve items controlled for national
security reasons destined for Bulgaria, the Czech Republic, Hungary,
India, the People's Republic of China, Poland, Romania, or Slovakia?
(i) If yes, your transaction may require an Import or End-User
Certificate. Proceed to Sec. 748.10 of this part.
Note: 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 this subchapter) 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, continue with question number 3.
(3) Does your transaction involve items controlled for national
security [[Page 25350]] reasons destined for one of the following
countries (this applies only to those overseas territories specifically
listed):
Argentina, Australia, Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Hong Kong, Ireland, Republic of, Italy, Japan, Korea,
Republic of.
Liechtenstein Luxembourg, Netherlands, New Zealand, Norway,
Pakistan, Portugal, Singapore, Spain, Sweden, Switzerland, Taiwan,
Turkey, and United Kingdom.
(i) If yes, your transaction may require an Import Certificate.
Proceed to Sec. 748.10 of this part.,
(ii) If no, your transaction may require a Statement by Ultimate
Consignee or Purchaser. Proceed to Sec. 748.11 of this part.
(c) License applications requiring support documentation. 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. 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. If a license application is submitted without either the required
support document, the license application will be immediately returned
without action unless the reasons for failing to obtain the document
are supplied in Block 24 or in an attachment to the license
application.
(1) License applications supported by an Import or End User
Certificate. If submission of the original certificate is not required
in Sec. 748.10(g) of this part, you may submit your license application
upon receipt of a facsimile or other legible copy of the Import or End
User Certificate provided that no shipment will be 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) 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 program. 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
Certificate or Statement must be submitted to BXA within one year from
the date that the first license application, supported by the same
Certificate or Statement, was submitted to BXA.
(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 the
specific information supplied in a license application or license
issued by BXA. In terms of the disclosure of facts pertaining to a
transaction(s), the license application covering the transaction must
be self-contained. The authorizations contained in the resulting
license are not extended by the general information contained in Import
Certificate, End-User Certificate or Statement by Ultimate Consignee
and Purchaser with regard to the reexport from the country of
destination or with regard to any other facts relative to the
transaction as reported on the license application.
(2) Misrepresentations, either through failure to disclose facts,
concealing a material fact, or furnishing false information, will
subject all 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
of which you has knowledge or belief, 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 the your attention subsequent to the
issuance of the support document.
(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 considerations
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 below should
be followed:
(1) Applicants must send their letter request for return of an
Import or End-User Certificate to the address stated in Sec. 748.14 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 is in the
[[Page 25351]] 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 these
regulations require that all original support documents are retained
for a period of five years, you may return an unused or partially used
certificate at the request of a foreign importer provided that you
submit the original certificate, accompanied by a letter of
explanation, and a copy of each license covered by the certificate, and
list of all shipments made against each license to BXA at the address
listed in Sec. 748.14. 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 than the total
quantity stated on the license(s), you must include a statement that
the certificate will not be used in connection with another license
application.
(2) If your request is granted, 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 this subchapter.
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) and (b)(3) of this
part.
(b) An Import or End-User Certificate must be obtained if:
(1) Any items on your license application are controlled for
national security reasons (NS); and
(2) 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 exceeding $5,000, an Import or End-User
Certificate must be obtained.
(iii) If you are specifically requested by BXA to obtain an Import
Certificate for a transaction valued under $5,000.
(c) Where to obtain Import and End-User Certificates. See
Supplement No. 3 to part 748 for a list of the authorities
administering the Import Certificate/Delivery Verification and End-User
Certificate Systems in other countries.
(d) 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: You should furnish the consignee 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.
(i) 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:
(A) Title of contract and contract number (optional);
(B) Names of importer and exporter;
(C) End-User and end-use;
(D) Description of the item, quantity and dollar value; and
(E) Signature of the importer and date.
(ii) Reserved.
(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, 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. (1) In order to
determine whether submission to BXA of the requisite certificate is
required, you must ask the following two questions.
(i) Does the license application involve the export or reexport of
a supercomputer as defined in part 742 of this subchapter?
(ii) Is a PRC End-User Certificate required for the proposed
transaction?
(2) If the answer is yes to either question, the original
certificate must be submitted with the license application to BXA.
Copies will not be accepted.
(3) If the answer is no to both of these questions, the original
certificate must [[Page 25352]] be retained on file by the applicant in
accordance with the recordkeeping provisions of part 762 of this
subchapter, 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 this subchapter
apply to this requirement, except that reproductions may not be
substituted for the officially authenticated original in this instance.
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.
(b) Submission of the Statement by Ultimate Consignee and
Purchaser. A copy of the signed Statement by Ultimate Consignee and
Purchaser must be maintained by the applicant with the ultimate
consignee retaining the manually-signed original in accordance with the
recordkeeping provisions of part 762. The copy retained 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. 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
this subchapter) or the item involved is a supercomputer.
(c) Form or letter. The ultimate consignee and purchaser must
complete either a statement on company letterhead in accordance with
Sec. 748.11(e) of this part or Form BXA-711, Statement by Ultimate
Consignee and Purchaser. If you 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 you elect 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 Form BXA-711, the following constraints apply:
(1) Responsible officials representing the ultimate consignee 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 on completing Form BXA-711. Instructions on
completing Form BXA-711 are contained in Supplement No. 2 to part 748.
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 on 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, 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: 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 [[Page 25353]] 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 each of the
following certifications:
(i) We certify that all of the facts contained in this statement
are true and correct to the best of our knowledge and belief 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 change of facts or intentions set forth
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
issued to [name of applicant] (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 the ultimate consignee
and/or purchaser has indicated the intention to reexport, and that
authorization to reexport is not granted 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.
(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
notice 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 this subchapter, 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: 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 this
subchapter).
(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; [[Page 25354]]
(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.
(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 this subchapter. 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. 3 to part 748.
(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. 748.14
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 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. 3 to part 748, and forward the
completed DV to the licensee. The DV must cover the items described on
the license that have been shipped.
Note: 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. 748.14
of this part.
(3) The documents must be forwarded with a dated letter evidencing
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 ______ have
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.
Sec. 748.14 Mailing address for applications and documentation.
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, Room 2705, Washington, D.C. 20044,
Attn: ``Application Enclosed''. BXA will not accept applications sent
C.O.D.
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.
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. Mark the appropriate Box with an
(X). 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 have been previously exported (e.g.,
they are no longer located in the United States), mark the Box
labeled ``Reexport'' with an (X). Classification Request. If you are
requesting BXA to classify your item against the CCL, check the Box
labeled ``Classification Request''. Advisory Opinion Request. If you
are requesting an Advisory Opinion from BXA, check the Box labeled
``Advisory Opinion Request''. Special Comprehensive License. If you
are submitting [[Page 25355]] a Special Comprehensive License in
accordance with procedures described in part 752 of this subchapter,
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 and Sec. 742.12 of this
subchapter, 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 this subchapter for instructions on the
submission of a foreign availability submission.
If you are asking BXA to classify your product, you must mark
the Box labeled ``Tech. Specs.'', and include with your application
descriptive literature, brochures, technical specifications or
papers that provide sufficient technical detail to enable BXA to
determine the correct classification. Also mark this box if you are
required to submit technical specifications for a 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 this subchapter.
Block 9: Special Purpose. Complete this box for certain items or
types of transactions only if specifically required in Sec. 748.8 of
this part.
Block 10: Resubmission Application Control Number. If your
original application was returned without action, provide the
Application Control Number for the previous application.
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,
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 checked the ``Reexport'' box in Block 4.
Enter the license number or License Exception symbol (for exports
under General Licenses, enter the appropriate General License
symbol) under which the items were originally exported.
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 Sec. 748.11 of this subchapter.
Block 14: Applicant. Enter the applicant's name, street address,
city, state/country, and postal code. Refer to Sec. 748.4(a) of this
part for a definition of ``applicant''. If you have checked
``Export'' in Block 4, 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. If 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). Refer
to Sec. 748.4(b)(3) 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. If 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). Provide a complete street address, P.O.
Boxes are not acceptable. Refer to Sec. 748.4(b)(4) 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. A bank, freight forwarder, forwarding agent, or other
intermediary may not be identified as the ultimate consignee. Refer
to Sec. 748.4(b)(1) of this part for the definition of ``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 actual end-
use is clearly identified in Block 21 or 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 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).
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 is 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. If 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). 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 consignee
currently in possession of the items. If 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). 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.
Block 22: You must complete each of the sub-blocks contained in
this Block, If you are submitting a classification request, you do
not need to complete blocks (d), (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 that
corresponds to the item you wish to export or reexport. If you are
requesting BXA classify your item, provide a recommended
classification for the item in this Block.
(b) CTP. You must complete this Block if you intend to export,
reexport, or request BXA to classify a digital computer.
Instructions on calculating the CTP is contained in a Technical Note
at the end of Category 4 in the CCL. If you are not exporting or
reexporting a digital computer, 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 from
BXA, provide the CCATS number shown on the classification issued by
BXA. If not, enter ``N/A''. [[Page 25356]]
(e) Quantity. Give the quantity to be exported or reexported, as
in terms of the ``Units'' identified in the Export Control
Classification Number entered in Block 21(a) of the item. 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 Export Control
Classification Number 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
``Sec. 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 Box 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) Manufacturer's 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 that may be 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 transaction 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 transaction previously denied,
you must provide the Application Control Number for the original
application.
If you are asking BXA to classify your product, provide an
explanation why you believe the Export Control Classification Number
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 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 which 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. 748.4(a)(5) of this subchapter.)
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. 748.4(a)(3) of this subchapter.)
Block 8: Certification for U.S. Exporter. This Block must be
completed to certify that any correction, addition, or alteration on
this form was made prior to the signing by the Ultimate Consignee in
Block 6 and Purchaser in Block 7.
Supplement No. 3 to Part 748--Authorities Administering Import
Certificate/Delivery Verification (IC/DV) and end use Certificate
Systems in Foreign Countries\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Country IC/DV authorities System administered
--------------------------------------------------------------------------------------------------------------------------------------------------------
Argentina......................................... Secretaria Ejecutiva de la Comision Nacional de Control de IC/DV.
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, Industry IC/DV.
Policy and Operations Division, Department of Defense,
Russell Office, Canberra, A.C.T. 2600.
Austria........................................... Bundesministerium fur Handel Gewerbe und Industrie IC/DV.
Landstr. Haupstr. 55-57, Vienna 1031.
Belgium........................................... Ministere Des Affaires Economiques Office Central des IC/DV.
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 MOFERT, No. 2 PRC End-User Certificate.
Dong Chang An Street, Beijing, Telephone: 553031, Telex:
22478 MFERTCN.
Czech Republic.................................... Federal Ministry of Foreign Trade, Head of Licensing IC/DV.
Politickych, Veznu 20 112 49 Praha 1.
Denmark........................................... Handelsministeriets, Licenskontor, Kampmannsgade 1, DK IC/DV.
1604, Copenhagen V.
IC's also issued by Danmarks Nationalbank, Holmens Kanal DV.
17, Copenhagen K Custom-houses.
[[Page 25357]]
Finland........................................... Hensingin Piiritullikamari, Kanavakatu 6 (or P.O. Box IC/DV.
168), 00161 Helsinki.
France............................................ Ministere de l'Economie et des, Finances Direction IC/DV.
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 Frankfurter Strasse, IC/DV.
29-31 65760 Eschborn.
Greece............................................ Banque de Greece, Direction des Transactions Commerciales IC/DV.
avec l'Etranger, Athens.
Hong Kong......................................... Trade Department, Ocean Centre, Canton Road, Tsimshatsui, IC/DV.
Kowloon,.
Hungary........................................... Ministry of International Economic Relations Export IC/DV.
Control Office, 1054 Budapest P.O. Box 728, H-1365, Hold
Str. 17.
India............................................. Deputy Director General of Foreign Trade Udyog Bhawan, Indian IC.
Maulana Azad Road, New Delhi 11011: For small scale
industries and entities, and those not elsewhere
specified.
Directorate General of Technical Development, Udyog Indian IC.
Bhawan, Maulana Azad Road, New Delhi 11011: For the
``organized'' sector, except for computers and related
equipment.
Defense Research and Development Organization, Room No. Indian IC.
224, ``B'' Wing Sena Bhawan, New Delhi 110011: For
Defense organizations.
Department of Electronics, Lok Nayak Bhawan, New Delhi Indian IC.
110003: For computers and related electronic items.
Assistant Director, Embassy of India, Commerce Wing, 2536 Indian IC.
Massachusetts Ave. NW, Washington D.C. 20008--: For any
of the above.
Ireland, Republic of.............................. Department of Industry, Trade, Commerce and Tourism, IC/DV.
Frederick House, South Frederick Street, Dublin 2.
Italy............................................. Ministero del Commercio con l'Estero Direzione Generale IC/DV.
delle Importazioni e delle Esportazioni, Div. III, Rome,
Dogana Italiana (of the town import where takes place).
Japan............................................. Ministered of International Trade and Industry in: IC.
Fukuoka, Hiroshima, Kanmon (Kitakyushu-shi), Kobe,
Nagoya, Osaka, Sapporo, Sendai, Shikoku (Takamatsu-shi),
Shimizu, Tokyo, and Yokohama.
Japanese Customs Offices.................................. DV.
Korea, Republic of................................ Trade Administration Division, Trade Bureau Ministry of IC.
Trade and Industry Jungang-Dong, Kyonggi-Do, Building 3,
Kwachon.
Republic of Korea Customs House........................... DV.
Liechtenstein..................................... Swiss Federal Office for Foreign Economic Affairs, Import IC/DV.
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 2, IC/DV.
Groningen.
New Zealand....................................... Comptroller for Customs, P.O. Box 2218, Wellington........ IC/DV.
Norway............................................ Handelsdepartmentet, Direktoratet for Eksport-og- IC/DV.
Importregulering, Fr. Nansens plass 5, Oslo.
Pakistan.......................................... Chief Controller of Imports and Exports, 5, Civic Center, IC.
Islamabad.
Joint Science Advisor, Ministry of Science and Technology, DV.
Secretariat, Block `S', Islamabad.
Poland............................................ Ministry of Foreign Economic Relations Department of IC/DV.
Commodities and Services, Plac Trzech Krzyzy 5, Room 358,
00-507 Warsaw.
Portugal.......................................... Reparticao do Comercio Externo, Direccao-Geral do IC/DV.
Comercio, Secretaria de Estado do Comercio, Ministerio da
Economia, Lisbon.
Romania........................................... National Agency for Control of Strategic Exports and IC/DV.
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 Development IC/DV.
Board, World Trade Centre, 1 Maritime Square, Telok
Blangah Road,.
Slovakia.......................................... Ministry of Foreign Affairs, Licensing-Registration IC
Department, Spitalska 8, 813 15 Bratislava.
Spain............................................. Secretary of State for Commerce, Paseo la Cistellana 162, IC/DV.
Madrid 28046.
Sweden............................................ The Association of Swedish Chambers of Commerce & Industry IC/DV.
P.O. Box 16050, S-103 22 Stockholm Office: Vastra
Tradgardsgatan 9.
Switzerland....................................... Swiss Federal Office for Foreign Economic Affairs, Import IC/DV.
and Export Division, Zieglerstrasse, 30 CH-3003 Bern.
[[Page 25358]]
Taiwan............................................ Board of Foreign Trade Ministry of Economic Affairs, 1 Hu- IC/DV.
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 Commerce, IC.
Ankara.
Head Customs Office at the point of entry................. DV.
United Kingdom.................................... Department of Trade and Industry, Export Licensing Branch, IC.
Millbank Tower Millbank, London, SW1P 4QU.
H.M. Customs and Excise, King's Beam House, Mark Lane, DV.
London, E.C. 3.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Samples of Import Certificates and Delivery Verifications issued by each of these countries may be viewed at any of the offices identified in Sec.
748.2(a) of this part. Copies are not available.
Supplement No. 4--U.S. Import Certificate and Delivery Verification
Procedure--[Reserved]
PART 750--APPLICATION PROCESSING, ISSUANCE AND DENIAL
Sec.
750.1 Scope.
750.2 Processing of Classification and Advisory Opinion requests.
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.
750.6 Denial of license applications.
750.7 Issuance of licenses.
750.8 Revocation or suspension of licenses.
750.9 Duplicates of licenses.
750.10 Transfer of licenses for exports.
750.11 Shipping tolerances.
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 750.1 Scope.
This part 750 describes the licensing process used by the Bureau of
Export Administration (BXA) to review your application for a license,
including processing times, denials, revocations, issuance, duplicates,
transfers, and 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 and advisory opinion requests.
(a) Classification requests. All written inquiries submitted to BXA
requesting the classification of a particular item on the Commerce
Control List (CCL) will be answered within 14 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 written inquiries submitted to
BXA requesting the applicability of license requirements to a proposed
transaction or series of transactions (e.g., a particular item to a
specific destination), will be answered within 30 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 all documentation and other forms
of information submitted along with the license 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 advisory agencies. (1) The Departments of State,
Defense, Energy, and the Arms Control and Disarmament Agency have the
authority to review all categories of license application each agency
or department specifies to BXA. These agencies and departments will be
referred to as ``advisory agencies'' for the purposes of this section.
Though advisory agencies have the authority to review any license
application, they may determine that certain types of license
applications need not be referred. In these instances, the advisory
agency will provide BXA with a Delegation of Authority to process those
license applications without review by that particular advisory agency.
(2) Advisory agencies are concerned with license applications
involving items controlled for missile technology, nuclear non-
proliferation, and chemical and biological weapons proliferation
reasons or destined for countries and/or end uses of concern. In
addition the following advisory agencies are generally concerned with
reviewing license applications, as follows:
(i) The Department of State is concerned primarily with license
applications involving items controlled for regional stability, anti-
terrorism, crime control reasons, and sanctions;
(ii) The Department of Defense is concerned primarily with license
applications involving items controlled for national security and
regional stability reasons; and
(iii) The Department of Energy is concerned primarily with license
applications involving items controlled for nuclear non-proliferation
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 chapter apply to all license
applications received on or after [EFFECTIVE DATE OF THE FINAL RULE].
The procedures and time limits in effect prior to [EFFECTIVE DATE OF
THE FINAL RULE] will apply to license applications received prior to
[EFFECTIVE DATE OF THE FINAL RULE].
(2) Incomplete license applications will not be registered. BXA
will attempt to contact the applicant to correct the deficiencies,
however, if BXA is unable to contact the applicant, the license
[[Page 25359]] 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
necessary action 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) Exceptions to the 90 day license processing. The only license
applications not subject to this 90 day license processing time limit
are those involving:
(1) The Special Comprehensive License;
(2) Items controlled for short supply reasons; or
(3) Items and destinations where the existence of a pre-existing
contract is a prerequisite to approval.
(c) Actions not included in processing time calculations. The
following actions will not be counted in the time period calculations
described in paragraphs (a) and (b) of this section for the processing
of license applications:
(1) Agreement of the applicant. (i) When the applicant agrees to
the delay. Applicants may be requested by BXA to provide additional
information in support of their license application or respond to
questions arising during the processing of their license application.
(ii) In situations where 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 pre-license check is established by the
Secretary, or by another advisory agency, if the request for a pre-
license check is made by such advisory agency;
(ii) The pre-license check is requested within five days of the
determination that it is necessary; and
(iii) The analysis resulting from the pre-license check is
completed within five 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 thereafter; and
(iii) The license is issued within five days of the Secretary's
receipt of the requested assurances.
(4) Multilateral reviews. Multilateral review of a license
application if such review is required by the relevant multilateral
regime.
(5) Congressional notification. License applications requiring
congressional notification in accordance with section 6(j) of the
Export Administration Act, as amended (EAA). Under Section 6(j) of the
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 non-proliferation reasons.
(E) All items controlled by the CCL entries ending with number 18.
(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.''
(d) Initial processing. Within nine days of license application
registration, BXA will, as appropriate:
(1) Contact the applicant if additional information is required, or
if the license application is improperly completed or required support
documents are missing, to request corrected information;
(2) Assure the stated classification on the license application is
correct;
(3) Return the license application if a license is not required; or
(4) Refer the license application electronically along with all
necessary recommendations and analysis concurrently to other agencies
or departments. Any relevant information not contained in the
electronic file will be simultaneously forwarded in paper copy. If
referral to another advisory agency is not required, BXA will either
approve the license application or notify the applicant of the intent
to deny the license application.
(e) Review by advisory agencies and/or interagency groups. (1)
Within thirty days of receipt of a referral, an advisory agency will
provide BXA with a recommendation either to approve or deny the license
application. As appropriate, such a recommendation may be with the
benefit of consultation and 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 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 non-proliferation reasons. The
SNEC also reviews license applications involving items not controlled
for nuclear non-proliferation (NP) reasons, but destined for a country
and/or end use/end-user of concern.
(iii) The Shield. The Shield, chaired by the Department of State,
reviews license applications involving items [[Page 25360]] 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 concern.
(2) If an advisory agency requires additional information that is
not contained in the electronic referral file or paper copies, the
request will be forwarded promptly to BXA. BXA will in turn contact
you.
(f) Recommendations by advisory agencies. Advisory agencies
recommending denial of a license application must provide a statement
of reasons, consistent with the provisions of the Act, and cite both
the statutory and the regulatory basis for the recommendation to deny.
An advisory agency that fails to provide a recommendation within thirty
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.
(g) 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 inform each agency of the Chair's decision on the license
application within 14 days after the deadline for receiving agency
recommendations.
(ii) If any advisory agency disagrees with the OC Chair's decision,
the advisory agency may escalate the decision to the Chair of the
Advisory Committee on Export Policy for resolution. If such a request
for escalation is not made within five days of the decision of the OC
Chair, his or her decision is then 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,
and cite both the statutory and the regulatory basis for the request.
The ACEP will review all relevant information and recommendations. The
Chair of the ACEP will inform the reviewing agencies of the majority
decision of the ACEP within 11 days from the date of receipt of the
escalation request. Within five days of the decision, any dissenting
advisory agency may appeal in writing the ACEP's decision to the
Secretary of Commerce in the Secretary's capacity as the Chair of the
Export Administration Review Board. The appeal must be made by the head
of the advisory agency 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 is then 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
will inform the reviewing departments and agencies of the majority
decision of the EARB decision within 11 days from the date of receipt
of the appeal. Within five days of the decision, any advisory 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 advisory agency. In the absence of a timely appeal, the
decision of the EARB is then final.
Sec. 750.5 Status of pending applications.
(a) Information available on pending application. Depending on the
type of application you have submitted you may contact BXA for status
of your application. For Classification and Advisory Opinion requests,
telephone (202) 482-4905 or send a fax to (202) 219-9179. For license
applications, 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 with 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
Standard Time. If you have any difficulty accessing STELA, contact
during normal business hours, one of BXA's offices listed in Sec. 748.2
of this subchapter.
(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. Enter the number ``5'' on your
telephone for Application Control Numbers beginning with the letter
``Z''. Following this number, enter in the remaining six digits. After
you enter the Application Control Number, STELA will provide you with
the current status of your license application.
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 determination 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 determination
before the license application is denied. If you respond to the
notification, BXA will advise you if, as a result of your response, the
determination 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 this
subchapter.
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 [[Page 25361]] preparing a Shipper's
Export Declaration (SED) and other export control documents, and in
communicating with the Department of Commerce concerning the license.
The following changes do not require submission of a ``Replacement''
license or any other notification to BXA (If you wish to make any
change not identified below, you will need to submit a ``Replacement''
license in accordance with the instructions contained in Supplement No.
1 to part 748):
(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 subchapter;
(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, 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
this subchapter) 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 this subchapter), 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 ocean bill of lading 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;
(8) Change in ECCN, unit of quantity, unit price, or wording of the
item 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.
(c) 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.
(d) Prohibited use of a license. No one convicted of a violation of
one of the statutes specified in section 11(h) of the EAA, at the
discretion of the Secretary of Commerce, is eligible to use any license
for a period up to 10 years from the date of the conviction. (See
Sec. 766.25 of this subchapter)
(e) 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 ``Sec. 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.
(f) License validity period. Licenses involving the export or
reexport of items 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(f) of this subchapter), or license applications for items
controlled for short supply reasons. Emergency licenses are limited to
a one month validity period and licenses for items controlled for short
supply reasons are limited to a 12 month validity period. Where
appropriate, 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 this subchapter 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, however, no changes will be approved related to any other
particular (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 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 emergency
clearance provisions contained in Sec. 748.5(f) of this subchapter will
not be extended.
(2) Request for extension. (i) The applicant must submit a written
request for the extension of 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 all
applicable support documents remain valid and in the possession of the
applicant. If the request for extension is approved, BXA will provide
the applicant with a written response.
(g) 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 it is decided not to return the items
to the United States, you must submit a license application requesting
authorization to dispose of the items. Except where the items will be
used on a temporary basis at the new [[Page 25362]] destination (and
returned to the United States after such use), you must ensure your
license application is accompanied by any 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 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
Intransit Prohibition contained in part 734 of this subchapter, 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 letter must be submitted to BXA at the address listed in
Sec. 748.15 of this subchapter.
(4) Replacement license. If you have been issued a ``replacement''
license (for changes to your original license that were not covered in
Sec. 750.7(b) of this part), you must attach the ``replacement''
license to the original, and retain both.
(h) Records. If you have been issued a license you must retain the
license, and maintain complete records in accordance with part 762 of
this subchapter 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 to export or reexport are subject to
revision, suspension, or revocation, in whole or in part, without
notice whenever there is reason to know that the EAR have been violated
or that a violation is about to occur. BXA 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 discretion of the Secretary of
Commerce, has an interest in the license at the time of the conviction.
It may be necessary for the 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, BXA may be further necessary 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. 748.15 of
this subchapter, 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 this subchapter. If the licensee fails to
return a license immediately upon notification that it has been
suspended or revoked, the Office of Export Enforcement may impose
sanctions provided for in Sec. 764.3 of this subchapter.
Sec. 750.9 Duplicate License.
(a)(1) Lost, stolen or destroyed. If a license is lost or destroyed
you may obtain a duplicate of the license by submitting a letter to the
BXA at the address listed in Sec. 748.15 of this subchapter, Attention:
Duplicate License Request''. You must certify in your letter:
(i) That the original license ([number] issued to [name and address
of licensee]) has been lost or destroyed;
(ii) The circumstances under which it was lost or destroyed;
(iii) If the original license is found, the licensee will return
either the original or duplicate license to the BXA.
(2) 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 this
subchapter.
(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 this subchapter.
Sec. 750.10 Transfers of licenses for export.
(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 commodities or
technology 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 transfer of a license or licenses containing the following:
(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 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,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 [[Page 25363]] 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 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 made available upon demand and will be
retained by me (us) for a period of two years from the time of the
export from the United States, or any known reexport, transshipment,
or diversion, or any other termination of the transaction whether
formally in writing or by any other means, whichever is later. The
undersigned will promptly report to the Bureau of Export
Administration any material or substantive changes in the terms of
the order and any other facts of the export transaction known or
reported to the undersigned at any future time by any party to the
export transaction.
(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 tolerance.
(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 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 ship in the applicable
ECCN on the CCL (see Supplement No. 1 to part 774 of this subchapter).
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 ECCN applicable to your item reads ``Sec. value'' or ``in
Sec. value'', there is no shipping tolerance. You may not ship more
than the dollar value stated on your license.
(2) Items licensed by ``Number''. If the ``Unit'' paragraph in 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 dollar
value stated on that license by up to 25%.
(3) Items licensed by ``Area, Weight or Measure''. If the ``Unit''
paragraph in 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 this subchapter).
(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 pounds, 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 and
the second shipment is for 20,000 kg, 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) 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:
[[Page 25364]]
$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...
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) 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....
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) 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....
If the first shipment includes $300,000 of parts and accessories and
the second shipment incudes 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 Introduction.
752.2 Activities that may be authorized under the Special
Comprehensive License.
752.3 Eligible items.
752.4 Eligible countries.
752.5 Steps you must follow to apply for a Special Comprehensive
License.
752.6 Reexports.
752.7 Direct shipment to customers from the SCL holder.
752.8 License process.
752.9 Action on applications.
752.10 Action on Form BXA-752.
752.11 Changes to the Special Comprehensive License.
752.12 Internal Control Programs.
752.13 Recordkeeping requirements.
752.14 Inspection of records.
752.15 Audits.
752.16 Export clearance.
752.17 Effect of other regulations.
752.18 Administrative actions.
Supplement No. 1: Instructions for Completing Forms BXA-748P and BXA-
752 for Requests for Special Comprehensive Licenses
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 752.1 Introduction.
(a) Scope--(1) Introduction. This part describes the provisions of
the Special Comprehensive License (SCL). You may use SCLs, when
appropriate, in lieu of other licenses described in part 748 of this
subchapter, for multiple exports and reexports of items subject to the
EAR. The SCL provides authorization to make specified exports and
reexports otherwise prohibited by General Prohibitions One, Two, and
Three described in part 734 of this subchapter. However, 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 this subchapter.
Because the Bureau of Export Administration (BXA) does not review each
individual transaction covered by a SCL, parties to the SCL must have
the mechanisms in place to ensure that each export and reexport made
under a SCL meets all the terms and conditions of the license and are
in accordance with all applicable provisions in the Export
Administration Regulations (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) ICP Levels. To qualify for a SCL, you will be required to
develop an ICP. ICPs can be generally categorized into three levels
that are dependent upon the activities involved. Section 752.12 of this
part includes a general description of the elements of each of the
three ICP levels, and guidance on which ICP your company must establish
before making shipments under the SCL. The elements of each ICP reflect
the complexity of the activities authorized under the SCL, the
countries 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 from one or more levels, depending upon the
nature of your SCL application.
(b) [Reserved].
Sec. 752.2 Activities that may be authorized under the Special
Comprehensive License.
(a) General 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 types of activities that BXA may
authorize under the SCL include:
(1) Service activities. Exporting and reexporting items subject to
the EAR for use in servicing other items subject to the EAR. Related
activities include:
(i) Exports of replacement parts for the repair of items subject to
the EAR that have been legally exported from the U.S. This includes
replacement of defective parts. Items that upgrade the original item
are permitted as long as the upgrade does not exceed the performance
parameter of the particular ECCN under which the item was originally
classified (see Supplement No. 1 to part 774 of this subchapter).
(ii) Exports to support services performed related to previously
exported U.S.-origin items. Examples include computer help lines,
training, advisory services, transfer of information or data, and
testing.
(iii) Exports to support maintenance. Servicing that involves
normal and usual activities to maintain items in proper and safe
operating condition, or to restore items to the original condition.
Servicing may result in upgrades, provided that the upgrade does not
exceed the performance parameters of the ECCN under which the item was
originally classified (see Supplement No. 1 to part 774 of this
subchapter).
(iv) Exports to a designated service facility.
(v) Exports of items for stocking. Stocking of ``spare parts''
where items are kept on hand to assure prompt repair of items abroad.
(A) Definition of spare parts. As used in this part 752, ``spare
parts'' includes ``sub-assemblies'', but does not include test
instruments.
(B) Definition of sub-assemblies. As used in this part 752, ``sub-
assemblies'' means a number of components assembled to perform a
specific function or functions, replaceable as a unit, and
[[Page 25365]] not capable of operating as a standalone. One example is
printed circuit boards that include mounted components. The term ``sub-
assemblies'' does not include major subsystems such as those composed
of a number of sub-assemblies, for example, the entire memory bank or
the complete central processing unit of a computer.
(2) End-user activities. Exporting and reexporting items subject to
the EAR for use as capital equipment or for incorporating items into
manufactured items, where the U.S. content is above the de minimis
levels identified in Sec. 732.4(b) of this subchapter. Related
activities include:
(i) Exporting items for capital expansion projects for constructing
a new facility or expanding an existing facility;
(ii) Providing maintenance, repair, and operating supplies for an
existing facility;
(iii) Supplying parts, components, and materials for use in the
production of foreign-made items;
(iv) Exporting items to support scientific data acquisition when
the items remain under the control of either the SCL holder or the
consignee (examples include charting shorelines, recording tidal
activity, drawing core samples, and oil and gas exploration);
(v) Exporting items for installation and expansion of services,
such as providing wiring and cable for establishing a cable network; or
(vi) Supplying chemicals or chemical and biological equipment to
subsidiaries under the ``effective control'' of the United States
exporter or to other end-users specifically authorized by the BXA. As
used in this part 752, ``effective control'' means the exercise of a
right, under a contractual agreement between the U.S. exporter and the
consignee, to determine and control the export of items authorized
under a SCL and
(3) Distribution activities. Exporting and reexporting items
subject to the EAR for the purpose of resale and reexport by
consignees, such as:
(i) Reselling and/or reexporting in the form received under the
SCL;
(ii) Assembling a finished product from kit form;
(iii) Adding software to a U.S. computer or other device;
(iv) Using an item for systems integration (i.e., assembling
hardware and various components/software for a specific application by
an end-user customer);
(v) Adding support equipment (e.g., test equipment being shipped
with a foreign-produced system);
(vi) Installing communication/navigation equipment in a customer's
aircraft, or direction finding equipment on a vessel;
(vii) Adding discrete U.S. components to foreign-produced systems;
or
(viii) Reselling foreign manufactured products that exceed the de
minimis levels described in Sec. 734.2(b)(2) of this subchapter.
(4) Other activities. Other activities may be authorized by BXA
under the SCL on a case-by-case basis.
(b) Prohibited activities. The general prohibitions described in
Sec. 734.2(b) (4) through (10) of this subchapter apply to all exports
and reexports by, and conduct of, all parties named on the 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 this subchapter.
Sec. 752.3 Eligible items.
(a) All items subject to the EAR are eligible for export and
reexport under the SCL, except:
(1) Items identified by the letters MT in the ``Reason for
Control'' paragraph on the Commerce Control List (CCL) (see Supplement
No. 1 to part 774 of this subchapter);
(2) Biologicals, or equipment and materials that can be used in the
production of biologicals (items controlled by ECCNs 1C61, 1B71, 1E61,
and 1E70);
(3) Chemicals and chemical equipment and materials that can be used
in the production of chemical weapons to destinations listed in Country
Group D:3 (see Supplement No. 1 to part 740 of this subchapter) (items
controlled by ECCNs 1B70, 1C60, 1E60, and 1D60);
(4) Maritime (civil) nuclear propulsion systems or associated
design or production software and technology identified in Sec. 744.5
of this subchapter;
(5) Communication intercepting devices controlled by ECCN 5A80 on
the CCL (see Supplement No. 1 to part 774 of this subchapter);
(6) Items identified by the letters ``SS'' in the ``Reason for
Control'' paragraph on the CCL;
(7) Items specifically identified as ineligible by BXA on your
approved SCL; and
(8) Additional items excluded consistent with multilateral
obligations.
(b) Exports of items identified as NP in the ``Reason for Control''
paragraph on the CCL will not generally be authorized under an approved
SCL for export or reexport to countries listed in Country Group D:2
(see Supplement No. 1 to part 740 of this subchapter).
Sec. 752.4 Eligible countries.
(a) General provisions. You or your approved consignees may export
or reexport items covered by a SCL to all countries except:
(1) Countries designated by the Secretary of State that have
repeatedly provided support for acts of international terrorism (Cuba,
Libya, Iran, Iraq, North Korea, Sudan, Syria).
(2) Countries listed in Country Group E (see Supplement No. 1 to
part 740 of this subchapter); and
(3) Other countries that BXA may declare 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 owned or controlled by, or under the lease or charter of, entities
in countries identified in paragraphs (a)(1) through (a)(3) of this
section or any national of such countries.
Sec. 752.5 Steps you must follow to apply for a Special Comprehensive
License.
(a) Step One: Establish exporter reliability. (1) Pre-application
consultation. To apply for a 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 elements identified in
paragraph (a)(2) of this section. To determine whether your company
requires such a consultation before you apply for a SCL, contact BXA at
the address listed in Sec. 752.19 of this part.
(2) Criteria to determine eligibility. BXA will review the
following to 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
U.S. export controls;
(iii) Company commitment, as well as the commitment of appropriate
consignees, of the necessary resources to implement an adequate ICP;
and
(iv) Evidence of your knowledge of all provisions of the EAR.
(b) Step Two: Establish consignee reliability. (1) Definition of
consignee. Consignee, as used in this part 752, means a legal entity
authorized as a consignee on the SCL. The consignees may be:
(i) A party that is ``controlled-in-fact'' by the SCL holder;
(ii) An unrelated party that has entered into a written agreement
with the SCL applicant to adhere to all provisions of the EAR, and
related documentation applicable to an approved consignee; or
[[Page 25366]]
(iii) Any other party receiving items under the SCL.
(2) Requirements. You must make an initial determination of the
reliability of all consignees that are listed on your application for a
SCL.
(3) Criteria for determining reliability. For purposes of this
initial determination, a consignee is considered ``reliable'' if any
one of the following apply:
(i) Your proposed consignee has a satisfactory record established
through BXA pre-license checks, extensive experience as a consignee
under a license issued by BXA, or has been previously approved by BXA
as a consignee on a special license;
(ii) 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 a SCL; or
(iii) You have evidence of an established, on-going business
relationship with the proposed consignee.
(4) Determination by BXA. The provisions of paragraph (b)(3) of
this section do not preclude the authority of BXA to determine the
reliability and eligibility of a party as a consignee. BXA may, based
upon any negative information on the proposed consignees, refuse to
authorize a proposed consignee and remove certain consignees from your
SCL application.
(c) Step Three: Prepare your documentation. Prepare Form BXA-748P,
an ICP, a comprehensive narrative statement, Form BXA-752, and all
applicable certifications. Submit this documentation to BXA at the
addresses listed in Sec. 752.19 of this part.
(1) Form BXA-748P, Multipurpose Application. Complete Form BXA-
748P, Multipurpose Application, according to the instructions found in
Supplement No.1 to part 748 of this subchapter. Certify submission of
all applicable SCL documentation by placing an ``X'' in the appropriate
boxes in Block 8 on the Form BXA-748P.
(2) ICP. You must provide a copy of your proposed ICP as required
by Sec. 752.12 of this part.
(3) 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 you and other
parties will perform under the SCL.
(ii) An explanation of the relationship between the parties to the
application, such as affiliate, subsidiary, or parent.
(iii) A description of the role of other participants under the SCL
and whether they are under the effective control of the SCL holder or
the consignee. For example, describe whether vessels receiving exports
for scientific data gathering or exploration activities are
``controlled-in-fact'' by the SCL holder or consignee. You must attach
a list of subcontractors or vessels to the Form BXA-6052 that exercises
control over those entities.
(iv) A detailed list of all items you would like to export or
reexport under the SCL, including Export Control Classification Numbers
(ECCN), and the descriptive item category (i.e, ``semiconductors,'').
Refer to the Commerce Control List (Supplement No. 1 to part 774 of
this subchapter for the appropriate ECCNs).
(v) A detailed list of all items eligible for export under a
License Exception described in part 740 of this subchapter, which will
be included in shipments of controlled items authorized under the SCL.
Indicate the applicable ECCN for each item.
(vi) The total dollar value of sales or other transactions during
the last 12 month period preceding submission of your application
relevant to the types of activities you are requesting on the
application. Also include the projected total dollar value of all
transactions you anticipate to make throughout the validity period of
the license, and the basis upon which you made that estimate. Include a
ratio of controlled items to those not subject to the EAR, that have
been, and will be, exported under the SCL.
(vii) The final disposition of the items. If the activity you are
requesting is to manufacture commodities for resale, describe the
finished product and how it will be sold and/or distributed.
(viii) A certification that you have in place, or will establish,
upon approval of the application by BXA, an ICP that incorporates the
elements set forth in Sec. 752.12 of this part and as required by BXA
upon approval of the SCL. You must indicate whether any of the elements
of the ICP have not been 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.
(ix) A detailed description of the primary activities of the
various classes of proposed consignees (e.g., sales, manufacturing,
assembly, warehousing/redistribution, servicing, etc.). Indicate the
dollar volume of sales or other transactions with each proposed
consignee in the items involved during the 12 month period preceding
submission of your application. Also describe the anticipated nature
and volume of regular and repetitive transactions proposed between
consignees under the license.
(x) Information on whether the consignees will use directly or
reexport the items received under a SCL. You must include enough detail
of the proposed consignee's activity for BXA to determine the
appropriate level of ICP required.
(4) Form BXA-752, ``Statement of Consignee in Support of Special
Comprehensive License Application.'' Each consignee named on the SCL
application must provide to you a completed Form BXA 752. This
requirement also applies to subsidiaries, affiliates and branches of
the applicant company, or other independent firms. Each completed Form
BXA-752 must be submitted by you with your application for a SCL.
(i) Exceptions. Form BXA-752 is not required if the proposed
consignee is the same legal entity as the applicant or if the SCL
consignee is a foreign government agency.
(ii) Number of copies. Each named consignee must provide three
copies of Form BXA-752.
(iii) Authorized signatures. Each of the three copies required by
paragraph (a)(3)(ii) of this section must include the original
signature of a responsible official of the named consignee who has:
(A) Personal knowledge of the information included on the form BXA-
752;
(B) Authority to bind the company to the terms and conditions of
the SCL; and
(C) The power and authority to control the use and disposition of
the licensed items in the country of destination.
(iv) The authority to sign form BXA-752P 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 and submitted with the application to BXA.
(5) Consignee certifications. Each consignee must provide certain
certifications on either Form BXA-752 or by letter. Letters of
certification must be prepared on company letterhead, signed by the
consignee, and attached to Form BXA-752. Facsimile copies of
certification letters are acceptable. Each consignee must certify that:
(i) They have an ICP in place, if required by Sec. 752.12 of this
part. If [[Page 25367]] certain elements of an ICP are not required,
include the reasons for that determination;
(ii) No items received under the SCL will be reexported unless
authorized by Sec. 752.6 of this part, and that the consignee agrees to
the notice requirements described in Sec. 752.6(d) of this part;
(iii) They will comply with all provisions of the EAR, including
the recordkeeping provisions of part 762 of this subchapter and all
applicable audit requirements of Sec. 752.15 of this part; and
(iv) They will make available for review by BXA all records
required under part 762 of this subchapter.
(6) Additional certifications. (i) Temporary Exports. Consignees
who plan to exhibit or demonstrate items in countries other than those
in which they are located or are authorized under a SCL, an approved
Form BXA-752, or a License Exception described in part 740 of this
subchapter may obtain permission to do so by providing the following
additional certification on the Form BXA-752. If the consignee has
already been previously approved by BXA to receive items under a SCL,
the same certification may be provided on company letterhead, in
triplicate, which upon approval will be validated by BXA.
``I(We) request authorization to reexport temporarily, for
exhibit or demonstration in countries eligible to receive items
under the SCL. 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) Exports of technology and software. If you are requesting
authorization from BXA to export technology or software eligible for
export or reexport under License Exception 17 (TSR), described in
Sec. 750.19 of this subchapter, or that requires a license, both the
SCL holder and consignee must certify that they have received from the
foreign importer the written assurances described in Sec. 740.18 of
this subchapter.
(iii) Chemicals and chemical and biological equipment
certification. Section 752.6(b) of this part prohibits retransfers,
resales, and reexports of chemicals and chemical and biological
equipment without specific authorization by BXA. If you are requesting
authority to export chemicals or chemical and biological equipment
(ECCNs identified with the letters CB in the ``Reason for Control''
paragraph on the CCL (see Supplement No. 1 to part 774 of this
subchapter), the consignee must include the following certification on
the Form BXA-752, or on company letterhead, in triplicate.
``No items 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.''
Sec. 752.6 Reexports.
(a) Authorized reexports. Consignees may reexport items under
License Exception 18 (APR) (see Sec. 740.20 of this subchapter). In
addition, all consignees may reexport items without approval from BXA
under any one of the following circumstances, unless otherwise
specifically exempt by the regulations in this subchapter or by a
condition placed on your SCL.
(1) Reexports to destinations approved by BXA through validation of
a Form BXA-752, according to the terms stated on the Form BXA-752 and
the comprehensive narrative statement required by Sec. 752.5(c)(3) of
this part; or
(2) Reexports of items approved under a SCL to and among other
consignees approved on the same SCL.
(b) Prohibitions--(1) Reexports to destinations described in
Sec. 752.4. Notwithstanding the authority of paragraph (a) of this
section, consignees may not use the authority of the SCL to reexport to
destinations not eligible to receive items under the SCL, as described
in Sec. 752.4 of this part.
(2) Retransfer, resell and reexport of chemicals and chemical and
biological equipment. You may not retransfer, resell, or reexport
chemicals or chemical and biological equipment (ECCNs identified with
the letters CB in the ``Reason for Control'' paragraph on the CCL (see
Supplement No. 1 to part 774 of this subchapter) under the SCL without
specific authorization by BXA.
(c) Sourcing. Consignees who obtain SCL-eligible items abroad,
which are subject to General Prohibitions One, Two, or Three (see part
734 of this subchapter), may reexport them under the authority of the
SCL, provided that they are reexported in accordance with the firm's
comprehensive narrative statement required by Sec. 752.5(c)(3) of this
part and ICP required by Sec. 752.12 of this part. Either the SCL
holder or the consignee must submit the request for reexport of items
(in triplicate), on their letterhead, BXA-6052 or within the
comprehensive narrative statement.
(d) Destination control statements--(1) General provisions. Unless
specifically exempted by the SCL or subsequently in writing by BXA, all
approved consignees reexporting items received under a SCL must notify
their customers on the commercial invoice (or by such other means
specifically approved by BXA) of reexport restrictions. See
Sec. 758.6(b)(6) of this subchapter for information on notification
procedures.
(2) Requirements for retransfers, resales, and reexports of
chemicals and chemical and biological equipment. (i) General
requirements. Unless specifically exempt on the SCL, or subsequently in
writing by BXA, all approved consignees not located in Country Group
A:3 (see Supplement No. 1 to part 740 of this subchapter) must notify
each end-user approved by BXA of the restrictions on unauthorized
reexports the items described in paragraph (b)(2) of this section. This
notification must appear on the commercial invoice or other document
specifically approved by BXA.
(ii) Notification. The notice required by paragraph (d)(2)(ii) of
this section must read as follows:
``These items were authorized for export from the United States
under a Special Comprehensive License on the condition that they may
not be reexported without prior approval from the United States
Government to countries not listed in Country Group A:3 in the
Export Administration Regulations.''
(3) Exceptions. The notice required by paragraph (d)(1) of this
section is not required if the shipment is destined to a country in
Country Group A:1 (see Supplement No. 1 to part 740 of this
subchapter).
Sec. 752.7 Direct shipment to customers.
(a) (1) General authorization. Upon request by a consignee, a SCL
holder or another consignee approved under the same SCL is authorized
to deliver products directly to the consignee's customer in either:
(i) The requesting consignee's country; or
(ii) Another country authorized to receive exports under the
requesting consignee's validated Form BXA-752.
(2) The SCL holder or consignee making direct shipments authorized
by this section must have internal controls procedures in place
relative to such shipments.
(b) Procedures--(1) Exports by a SCL holder. The license holder may
make a direct shipment by entering on the Shipper's Export Declaration
(SED) 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
[[Page 25368]] below the commodity 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).'' SCL holders and consignees utilizing 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. This procedure may
not be used for items identified by the letters ``NP'', ``CB'', ``SS'',
``CC'', or ``RS'' in the ``Reason for Control'' paragraph on the CCL
(Supplement No. 1 to part 774 of this subchapter), unless specifically
authorized by BXA.
Sec. 752.8 License application process.
(a) Scope of review. Under a SCL, you are authorized to make
multiple export and reexports without review and approval of each
individual transaction by BXA. To approve a 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 or
foreign policy interests.
(b) Elements of review. To permit BXA to make such judgments, BXA,
including BXA's Office of Export Enforcement, and other departments and
agencies will thoroughly analyze your past export transactions, inspect
your export documents, and interview company officials of both the
applicant and the consignees. If BXA cannot verify that appropriate
internal control procedures are in place, and 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, as defined in Sec. 748.6(b)(2) of this subchapter, from the
proposed consignee at the time you apply for a SCL. However, evidence
of a consignee's firm intention to place orders on a continuing basis
is required.
(d) Criteria for review. The following factors are among those that
BXA will consider in determining what action to take on your
application for a SCL:
(1) The specific nature of proposed end-uses/end-users;
(2) The significance of the export in terms of its contribution to
the design, development, production, stockpiling, or use of nuclear,
missile and/or chemical or biological weapons;
(3) The non-proliferation credentials of the importing country;
(4) Corporate commitment to the necessary resources to implement an
adequate ICP;
(5) The types of assurances against design, development,
production, stockpiling, or use of nuclear, missiles and CBW weapons
that are included in the 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 U.S. export
controls;
(9) Your knowledge of U.S. export controls.
(e) In reviewing and approving specific SCL, BXA retains the full
right to limit the eligibility of items or to prohibit the export,
reexport, or transfer of items under this procedure to specific firms,
individuals, or countries.
(f) Application processing time-frames. (1) Within 30 days of
receipt of the application for SCL, BXA will advise you of any
correctable deficiencies or clarifications before it proceeds with full
review of your application.
(2) Generally, BXA will process all applications that are complete
in all respects and do not require additional information from you
within 60-90 days of receipt. Certain individual consignees and end-
users may require more time for review.
Sec. 752.9 Action on applications.
(a) Approval--(1) Validity period. SCLs are valid for four years.
You may request an extension of a valid SCL for an additional four
years, but such request must be received by BXA at least 60 days before
the expiration of the SCL. To apply for an extension, submit a
statement on company letterhead indicating:
(i) That you continue to abide by the provisions and conditions of
the SCL; and
(ii) If there are changes to the SCL that you are requesting (see
Sec. 752.10 of this part for procedures on changing your SCL).
(2) If approved, the extension letter will be validated and
returned to you, extending the validity period for an additional four
more years. A complete new application and support documentation is
required at the end of that eight-year period.
(3) Support documentation. BXA will validate all approved support
documentation with the Department of Commerce seal and date of
validation.
(4) Special license conditions. BXA may place special conditions on
your license, 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 an Approval Rider attached to
the license in a letter from BXA to the SCL holder. You must inform all
consignees of all license conditions prior to effecting any shipments
under the SCL.
(b) Denial. 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 this subchapter for subsequent
transactions with such denied individual, companies, or countries.
(c) Return without action. If BXA determines to return the SCL
application without action, the application and all related documents
will be returned to the applicant. BXA will also include a letter of
explanation, 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 this subchapter.
Sec. 752.10 Action on Form BXA-752.
(a) Approval. With the approved SCL or amendment to the SCL, you
will receive two validated copies of each approved Form BXA-752. You
must retain one copy, and send one copy to the approved consignee. You
must attach a letter to each Form BXA-752 that includes each of the
following elements:
(1) A description of recordkeeping requirements, applicable to the
activities of the consignee;
(2) Information on reexport restrictions on any item received under
the SCL;
(3) A description or copy of part 766 of this subchapter, listing
administrative actions that may be taken for improper use of, or
failure to comply with, the SCL procedures;
(4) A description of any special conditions or restrictions on the
license applicable to the consignee, including approved lists of
customers, when required; [[Page 25369]]
(5) A description of the elements of the SCL holder's ICP relevant
to the SCL;
(6) A copy of the high risk customer profile contained in
Sec. 752.12(d) of this part, when required;
(7) A copy of the Table of Denial Orders currently in effect and
notification that you will send the consignee regular updates to this
list;
(8) 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 described in part
744 of this subchapter;
(9) A requirement that the consignee acknowledge, in writing,
receipt of the letter of transmittal and certify that it will comply
with all of the requirements, including establishment of an ICP, when
required by Sec. 752.12; and
(10) A description of any special documentation requirements for
consignees reexporting items to destinations having such requirements.
(b) Rejection. If a consignee is not approved, the Form BXA-752
will be returned to the SCL holder with a letter explaining the reason
for denial.
Sec. 752.11 Changes to the Special Comprehensive License.
You may request a change to the provisions of your Special
Comprehensive License by either an amendment or written notice to BXA,
depending upon the nature of the change.
(a) Changes made by amendments. Amendments require authorization by
BXA, and must be received by BXA 60 days before the change will occur,
unless other arrangements are specifically agreed to by that office.
Amendment requests must be submitted by the SCL holder on company
letterhead (in duplicate) to the address listed in Sec. 752.19 of this
part. Amendments are not effective until the SCL holder receives a
validated copy of the original request.
(1) Action requiring amendments. You must request an amendment for
the following types of changes:
(i) Change of company name. For changes to the company name of the
SCL holder, the SCL holder must send a copy of the validated letter to
all consignees and inform them to attach the copy of the validated
letter to their validated Form BXA-752. If a consignee changes its
name, the SCL holder must advise BXA promptly, and provide a new Form
BXA-752 following the procedures described in Sec. 752.5(c) of this
part.
(ii) Additional consignees. Requests to add consignees must be
accompanied by a Form BXA-752 and a Comprehensive Narrative Statement
according to the provisions of Sec. 752.5(c) of this part. However, a
new Form BXA-752 is not required where the proposed consignee is the
same entity as SCL holder or when the proposed consignee is a foreign
government agency. However, this fact must be stated in the amendment
letter as well as a complete address of that entity.
(iii) Consignee move from one country to another. Amendments to
change the address of a consignee that moves to another country must be
accompanied by a new Form BXA-752 in accordance with the provisions of
Sec. 752.5(c) of this part.
(iv) Additional items. Requests to add more items to the license
must include the ECCN and item category, as defined in the Commerce
Control List, Supplement No. 1 to part 774 of this subchapter.
(2) Amendment approval. Upon approval of an amendment, BXA will
return to you a validated copy of the original letter, indicating any
changes that may have been made to your amendment request, or any
special conditions that may have been imposed.
(b) Changes made by notices. You may make the following changes to
your SCL without prior approval from the Bureau of Export
Administration. Such changes only require letters of notification on
company letterhead, in duplicate. BXA must receive such notices no
later than 30 days after the change has been made. BXA will validate
the notice letter and return one copy to you for your records.
(1) Deletion, suspension or revocation of consignees. In the event
that you remove a consignee from eligibility to receive items under
your SCL, you must notify BXA as well as all SCL consignees of that
action. The notice must state that the deleted party is no longer
eligible to receive items under the SCL, and include the reason for
removal of a consignee and whether it was due to non-compliance with
the provisions of the SCL. If BXA suspends or revokes a consignee, BXA
will notify both you and the consignee, and provide the reason for the
suspension or revocation.
(2) Deletion of ECCNs. If you remove items from export and reexport
eligibility under your SCL, you must notify BXA as well as all
consignees of that action.
(3) Within-country change of SCL holder or consignee address or
phone number. Include in the letter of notice to BXA the effective date
of change, the new address, and phone number of the point of contact
within the firm responsible for export controls.
(4) Changes in ownership or control of the SCL holder or SCL
consignee. If you or a consignee change ownership or control, you must
notify BXA by letter on company letterhead. This letter must describe
the circumstances necessitating the change (i.e., mergers), and include
changes in persons who have official signatory authority on the
license.
(c) Changes made by BXA. If BXA revises or adds an ECCN in the CCL
or a country's eligibility already covered by the SCL changes, BXA will
notify the SCL holder by letter or through the publication of notice in
the Federal Register. The SCL holder is responsible for immediately
complying with either the notification by letter or amendment in the
Federal Register.
Sec. 752.12 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 national security,
nonproliferation, and foreign policy objectives of the EAR.
(2) General requirements. To qualify for a SCL, you must have an
ICP in place that is designed to ensure compliance with all conditions
of the SCL and the EAR.
(3) Levels of ICPs. There are three levels of ICPs provided for in
this part 752. The elements of each ICP reflect the complexity of the
activities authorized under the SCL, the countries 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 from
one or more levels, depending upon the nature of your SCL request.
(b) Certification requirements. You must certify, according to the
provisions of Sec. 752.5(c)(3)(viii) of this part that you have an ICP
in place or you are ready to implement an ICP upon approval of the
application. You may not make any shipments under a SCL until you
implement all the elements of the required ICP. If any of the elements
for an ICP will not be implemented at the time of SCL approval, you
must explain why these elements were deemed inapplicable. 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 all
applicable regulations pertaining to its SCL.
(c) Elements of an ICP. The elements of your ICP are dependent upon
the activities you and your consignees are [[Page 25370]] authorized to
perform under the SCL. Each level describes the responsibilities of
both the SCL holder and consignees. However, Level I only describes the
responsibilities of the SCL holder because shipments are made directly
to customers, not through consignees. There are three levels of ICPs:
(1) Level I ICP. Examples of activities that may require the
elements of a Level I ICP include services for customers. Activities
covered by Level I ICPs do not include reexport of items by the
receiving company. The Level I ICP must include at least the following
elements:
(i) A clear statement of corporate policy communicated to all
levels of the firm involved in export sales, traffic, and related
functions, emphasizing the importance of SCL compliance;
(ii) Methods for screening customers against the Table of Denial
Orders;
(iii) A system for assuring compliance with product and country
restrictions;
(iv) Evidence that you have no knowledge or reason to believe
through the normal course of business that the item was delivered
without the appropriate BXA authorization;
(v) Identification of export control personnel; and
(vi) A program for recordkeeping as required by the EAR.
(2) Level II ICP. This plan requires the SCL holder as well as
consignees to develop an ICP. A Level II ICP is required when
authorized activities involve items controlled for proliferation
reasons, or for end-user activities described in Sec. 752.2(a)(2) of
this part, such as exporting items subject to the EAR to support
capital expansion projects. The Level II ICP must include the following
elements:
(i) For the SCL holder: (A) A clear statement of corporate policy
communicated to all levels of the firm involved in export sales,
traffic, and related functions, emphasizing the importance of SCL
compliance;
(B) Identification of positions (and maintenance of current listing
of individuals occupying the positions) in the license holder firm and
consignee firms responsible for compliance with the requirements of the
SCL procedure;
(C) Methods for screening customers' orders/shipments against the
Table of Denial Orders (TDO);
(D) A system for assuring compliance with product and country
restrictions;
(E) A system for timely distribution to consignees and verification
of receipt by consignees of the TDO (Supplement No. 2 to part 764 of
this subchapter);
(F) A program for recordkeeping as required by the EAR;
(G) A system for notifying BXA promptly if the SCL holder has
knowledge that a consignee is not in compliance with terms of the SCL.
(H) A system for assuring compliance with controls over missile-
related items and end-uses described in Secs. 742.5 and 744.3 of this
subchapter;
(I) A system for assuring compliance with controls over chemical
precursors and biological agents and related items and end-uses
described in Secs. 742.2 and 744.4 of this subchapter; and
(J) 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 non-proliferation controls apply. See
paragraph (d) of this Section for signs of potential diversion.
(ii) For consignees: (A) Statement of consignee policy,
communicated from consignee management to consignee employees,
directing compliance with provisions of the EAR pertaining to the SCL
procedure;
(B) Maintenance of a current list of employees charged with export
compliance responsibilities.
(C) A system for screening hardware, software, training and
servicing transactions against Table of Denial Orders (Supplement No. 2
to part 764 of this subchapter) and any relevant updates supplied by
the SCL holder;
(D) A system for assuring compliance with the product and country
restrictions for reexports authorized on the Form BXA-752, and for
exports of products incorporating controlled items received under the
SCL;
(E) A program for recordkeeping as required by the EAR; and
(F) An order processing system that documents employee clearance of
transactions in accordance with applicable elements described in this
section.
(3) Level III ICP. This plan requires the SCL holder as well as
consignees to develop an ICP. A Level III ICP is generally required in
instances where the SCL authorizes export of items under an
international marketing program. It may include various activities and
generally involves three or more consignees that have been approved in
advance as foreign distributors and/or users. The elements of a level
III ICP include:
(i) For the SCL holder: (A) A clear statement of corporate policy
communicated to all levels of the firm involved in export sales,
traffic, and related functions, emphasizing the importance of
compliance with the SCL;
(B) Identification of positions (and maintenance of current listing
of individuals occupying the positions) in the license holder firm and
consignee firms responsible for compliance with the requirements of the
SCL procedure;
(C) A system for timely distribution to consignees and verification
of receipt by consignees of the Table of Denial Orders (Supplement No.
2 to part 764 of this subchapter) and other regulatory materials
necessary to ensure compliance;
(D) A method for screening customers' orders and shipments of all
items and activities against the Table of Denial Orders (Supplement No.
2 to part 764 of this subchapter);
(E) A system for assuring compliance with product and country
restrictions, including controls over reexports by consignees and
direct exports to consignees' customers;
(F) An internal audit system or compliance review program covering
the SCL holder and extending to all consignees;
(G) A system for assuring compliance with the limits on delivery to
nuclear end-uses and/or end-users as described in Sec. 744.2 of this
subchapter;
(H) An on-going program for informing and educating those parties
in the license holder firm and consignee firms concerning applicable
regulations, limits and restrictions of the Special License;
(I) A program for recordkeeping as required by the EAR;
(J) An order processing system affixing responsibility for all
required internal control reviews;
(K) A system for monitoring in-transit shipments and shipments to
bonded warehouses and free trade zones;
(L) A system for notifying BXA promptly if the license holder has
knowledge that a consignee is not in compliance with terms of the SCL;
(M) A system for assuring compliance with controls over missile-
related items and end-uses described in Secs. 742.5 and 744.3 of this
subchapter;
(N) A system for assuring compliance with controls over chemical
precursors and biological agents and related items and end-uses
described in Secs. 742.2 and 744.4 of this subchapter; and
(O) 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 non-proliferation controls apply. See
paragraph (d) of this section for signs of potential diversion.
(ii) For consignees: (A) A clear statement of consignee company
policy, communicated from consignee management to consignee employees,
[[Page 25371]] directing compliance with provisions of the EAR
pertaining to the SCL;
(B) Maintenance of current list of employees charged with export
compliance responsibilities;
(C) A system for screening hardware, software, technology, training
and servicing transactions against Table of Denial Orders and updates
thereto supplied by the SCL holder;
(D) A system for assuring compliance with the product and country
restrictions for reexports authorized on the Form BXA-752, and for
exports and reexports of items received under the SCL;
(E) A system for assuring compliance with the limits on delivery to
nuclear end-uses and/or end-users as described in Sec. 744.2 of this
subchapter;
(F) A system for assuring compliance with controls over missile-
related items and end-uses described in Secs. 742.5 and 744.3 of this
subchapter;
(G) A system for assuring compliance with controls over chemical
precursors and biological agents and related items and end-uses
described in Secs. 742.2 and 744.4 of this subchapter;
(H) An internal audit program to verify consignee compliance with
its ICP;
(I) An education program for employees processing transactions
involving items received under the procedure;
(J) A process for screening customers against the diversion risk
profile described in paragraph (d) of this section;
(K) A program for recordkeeping as required by the EAR; and
(L) An order processing system that documents employee clearance of
transactions in accordance with applicable elements described above.
(d) Signs of potential diversion. (1) The signs of potential
diversion that you should take into consideration include, but are not
limited to, the following:
(i) Your customer is little known (financial information
unavailable from normal commercial sources and corporate principals
unknown by trade sources);
(ii) Your customer does not wish to use commonly available
installation and maintenance services;
(iii) Your customer is reluctant to provide end-use and end-user
information;
(iv) Your customer requests atypical payment terms or currencies;
(v) Customer order amounts, packaging, or delivery routing
requirements do not correspond with normal industry practice.
(vi) The performance/design characteristics of the items ordered
are incompatible with customer's line of business or stated end-use;
(vii) Your customer provides only a ``P.O. Box'' address or has
facilities that appear inappropriate for the items ordered;
(viii) 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
(ix) Your customer is known to have, or is suspected of having,
unauthorized dealings with parties and/or destinations in ineligible
countries.
(2) 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 before contacting the SCL holder. If the SCL holder
is unable to resolve the problem, the SCL holder should request
assistance, in writing, from BXA's Special Licensing and Compliance
Division. The request should explain the basis for the concern
regarding the proposed customer and seek a determination if there is
information available on the reliability of the customer (see
Sec. 752.19 of this part for appropriate addresses). Consignees and
holders should consider use of a license described in part 748 of this
subchapter before establishing an ongoing relationship with new
customers under a SCL.
Sec. 752.13 Recordkeeping requirements.
(a) Introduction. In addition to the recordkeeping requirements in
part 762 of this subchapter, the SCL holder and each consignee must
maintain certain other records for a period of two years beyond the
expiration date of the SCL. These records must be made readily
available for review by the BXA upon request by BXA, in accordance with
the provisions of part 762 of this subchapter.
(b) License holder and consignees--(1) Form BXA-752. The consignee
named on the Form BXA-752 must retain the original, validated Forms
BXA-752 and all applicable attachments. The SCL holder must maintain
one copy of each validated Form BXA-752 as well as all forms not
approved.
(2) Transmittal letter to consignees. The SCL holder and the
consignee must retain one copy of the transmittal letter required under
Sec. 752.19(a) of this part and any attachments by the SCL holder and
the consignee.
(3) Amendment and notice letters. The SCL holder must retain all
original, validated copies of amendment and notice letters.
(4) Export and reexport documentation. (i) License holder. The SCL
holder must keep, in accordance with the recordkeeping requirements of
part 762 of this subchapter, all forms, documents, correspondence,
memoranda, specifications and other records, including invoices,
shipping documents and orders relating to all exports from the United
States. Other records that must be kept under part 762 of this
subchapter include records on special documentation for specific
destinations, records relating to special conditions on license
applications, and other records and reports confirming compliance with
the requirements of the regulations in this subchapter and the SCL.
(ii) Consignees. All consignees must retain all records of the
types of activities identified in Sec. 752.3(a)(3). Records on such
sales or reexports must include the following:
(A) Full name and address of individual or firm to whom sale or
reexport was made;
(B) Full description of each item sold or reexported;
(C) Units of quantity and value of each item sold or reexported;
and
(D) Date of sale or reexport.
(5) Table of Denial Orders (TDO) and other regulatory materials
necessary to ensure compliance. Copies of the most current list of
denied parties TDO (see Supplement No. 2 to part 764 of this
subchapter) and all other regulatory materials necessary to ensure
compliance, such as relevant changes to the EAR, product
classification, and additions, deletions, or other administrative
changes to the SCL, must be maintained by all parties. Copies of the
transmittal letters and consignee's confirmations of receipt of these
materials must also be maintained by both the license holder and the
consignees.
(6) ICP. Copies of manuals, guidelines, policy statements, internal
audit procedures reports, and other documents making up the ICP of each
party included under a SCL must be maintained on a current basis.
Sec. 752.14 Inspection of records.
(a) Availability of records. You and all consignees must make
available all of the records required by Sec. 752.13 of this part for
inspection, upon request, by BXA or by any other representative of the
U.S. Government, in accordance with part 762 of this subchapter.
[[Page 25372]]
(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.
(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 this subchapter or to the administrative
actions described in part 766 of this subchapter.
Sec. 752.15 Audits.
(a) Pre-license audits. In addition to the requirement for pre-
license consultation with BXA, BXA may require new SCL applicants (or
upon extension) to cooperate in pre-license audits to establish the
firm's credentials and reliability to participate in the SCL procedure.
This review may also include, but not be limited to, reviews of
information collected to establish the reliability of proposed
consignees.
(b) Post-license audits--(1) Authority of BXA. BXA may conduct
audits of the SCL holder as well as any consignee. Generally, BXA will
give reasonable notice to SCL holders and consignees in advance of such
audits.
(2) Scope. The audits will involve interviews with officials
familiar with, or responsible for, SCL compliance, inspection or
records and the review of ICPs. BXA may conduct special unannounced
audits if BXA has reason to believe a SCL holder or consignee has
improperly used or has failed to comply with the SCL regulations and
conditions. Alleged violations established during the course of audits
will be referred to BXA's Office of Export Enforcement.
(c) Mini audits. BXA may require a SCL holder or consignee to
submit to its office a list of all sales made under the SCL during a
specified time-frame. Also, from time to time, BXA may request from any
consignee a list of transactions during a specified, limited period
involving direct shipments of commodities 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. 752.16 Export clearance.
(a) Shipper's Export Declaration (SED). The SED covering an export
made under a SCL must be prepared in accordance with standard
instructions described in Sec. 758.3 of this subchapter. If the SCL
holder has implemented the Bureau of Census Monthly Reporting System,
the SCL holder is to comply with the Census requirements. Firms
authorized to file summary SED reports to the U.S. Census Bureau may,
on the request of BXA, be required to submit for BXA inspection copies
of such report applicable to exports under a SCL.
(1) Item descriptions. Item descriptions on the SED must indicate
specifically the ECCN and item description conforming to the applicable
Commerce Control List 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, the value of each shipment must be shown on the
SED.
(3) SCL number. The SED must include the SCL Number.
(4) License number. The SED must include in the lower portion of
column 10 the SCL number followed by a blank space, and then the
consignee numerical designation identifying the SCL's approved
consignee to whom the shipment is authorized. The consignee numbers
will be assigned by BXA to all approved consignees in order to monitor
exports.
(5) Recordkeeping. A copy of the SED must be prepared and retained
by the exporter for recordkeeping purposes for a period of five years
after shipment. BXA may require submission of copies of the SEDs upon
notification.
(b) Destination control statement--(1) Exports. The U.S. exporter
must enter a destination control statement on all copies of the bill of
lading, air way-bill, and the commercial invoice covering exports under
the SCL, in accordance with the provisions of Sec. 758.6 of this
subchapter. 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, hence is not prohibited. A different
destination control statement may be required or approved by BXA on a
case-by-case basis.
(2) Reexports. See Sec. 752.6(d) of this part for information on
destination control requirements for reexports of items under the SCL.
(c) Exports by mail. Exports by mail must be made in accordance
with the provisions of part 758 of this subchapter. The SCL number must
be entered on the address side of the wrapper on the package.
Sec. 752.17 Effect of other regulations.
Insofar as consistent with the provisions of this part 752, all of
the provisions of the EAR shall apply equally to applications for
licenses and licenses issued under this part.
Sec. 752.18 Administrative actions.
(a) General information. Failure to strictly comply with all
conditions and requirements to the SCL by SCL holders, consignees, U.S.
suppliers or customers increases the risk of diversion contrary to U.S.
national and economic interests.
(b) Administration actions. (1) If BXA is not satisfied that you or
other parties to the SCL are complying with such conditions and
requirements, or that control systems employed by parties to such
licenses are not adequate, BXA may, in addition to any enforcement
action pursuant to part 764 of this subchapter, take any licensing
action it deems appropriate, including the following:
(i) Suspend the privileges under the SCL in whole or in part, or
impose other restrictions;
(ii) Revoke the SCL in whole or in part;
(iii) Prohibit consignees from receiving items covered by the SCL,
or otherwise restrict their activities;
(iv) Restrict items that may be shipped under the SCL;
(v) Require that certain exports or reexports be individually
authorized by BXA;
(vi) Restrict parties to whom consignees may sell; and
(vii) Require that a license 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 action,
including those described in paragraphs (b)(1) (i) through (vi) of this
section.
(c) Appeals. Actions taken pursuant to paragraph (b) of this
section may be appealed under the provisions of part 756 of this
subchapter.
Sec. 752.19 BXA mailing addresses.
(a) Special Licensing and Compliance Division. 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,
[[Page 25373]] 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''.
(b) Office of Export Enforcement. Mail all documentation and
reports submitted to the Office of Export Enforcement under this part
752 to the following address: Bureau of Export Administration, U.S.
Department of Commerce, 14th and Pennsylvania Avenue, N.W., Room 4069,
Washington, D.C. 20230, ``Attn: Office of Export Enforcement''.
Supplement No. 1 to Part 752--Instructions for Completing Forms BXA-
748P and BXA-752 for Requests for Special Comprehensive Licenses--
[Reserved]
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 Restrictions on Crude Oil
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2410 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 754.1 Introduction.
(a) Scope. This part implements the provisions of Section 7,
``Short Supply Controls,'' of the Export Administration Act of 1979,
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 this subchapter). 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 set forth in this part, cover the
following:
(i) Crude oil described by ECCN 1C81D (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, described by the following ECCNs. For specific
licensing requirements for these items, see Sec. 754.3 of this part.
(A) ECCN 1C80D (Inorganic chemicals);
(B) ECCN 1C82D (Other petroleum products);
(C) ECCN 1C83D (Natural gas liquids and other natural gas
derivatives); and
(D) ECCN 1C84D (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 1C88D
(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 0A80D
(Horses for export by sea). For specific licensing requirements,
Sec. 754.5 of this part.
(2) It incorporates 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 procedures 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).
(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 this subchapter (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 1C81D on the CCL (Supplement
No. 1 to part 774 of this subchapter), a license is required for the
export of crude oil, as defined in paragraph (g) of this Section, to
all destinations, including Canada.
(b) License policy. (1) Except as provided in paragraph (c) of this
section, BXA will generally approve applications to export crude oil if
BXA determines that the proposed export is consistent with the national
interest and the purposes of the Energy Policy and Conservation Act.
(2) Generally, BXA will determine that the following kinds of
transactions involving the exports of crude oil are in the national
interest and consistent with the purposes of EPCA:
(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) 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;
(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;
(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; and
(D) That the crude oil to be imported into the United States would
not be available for import if the export had not taken place;
(v) The export will be part of an overall transaction:
(A) That will result directly in the importation into the United
States of a quantity and quality of petroleum products listed, other
than crude oil 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 commodity for which an export license is sought; and
(B) In which the applicant can demonstrate that, for compelling
economic or technological reasons that are beyond the control of the
applicant, [[Page 25374]] the crude oil cannot reasonably be marketed
in the United States;
(vi) 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;
(vii) Exports that are consistent with international agreements as
described in the statutes listed in paragraph (c) of this section;
(viii) 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
(ix) 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.
(c) Additional statutory restrictions. (1) The following Statutes
restrict the export of domestically produced crude oil based on its
place of origin or mode of transport. If such other statutory
restrictions apply, a license may only be approved if the President
makes the findings required by the applicable law.
(i) Section 7(d) of the Export Administration Act of 1979 (50
U.S.C. App. 2407(d)). Restricts exports of domestically produced crude
oil transported by pipeline over rights-of-way granted pursuant to
section 203 of the TransAlaska Pipeline Authorization Act (43 U.S.C.
1652) (``TAPS'').
(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 provides the relevant statutory
provisions. In cases where a particular statute applies, a Presidential
finding is necessary before BXA can approve the export. You should note
that it is possible that more than one statute could apply to a
particular export of crude oil.
(d) Exports from Alaska's Cook Inlet. Exports of crude oil that was
derived from the state-owned submerged lands of Alaska's Cook Inlet and
has not been, nor will not be, transported by a pipeline over a federal
right-of-way subject to the MLA or TAPS.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 crude oil subject to TAPS, the licensing policy is to approve
applications for exports of crude oil to Canada for consumption or use
therein.
(2) The licensing policy for crude oil subject to TAPS 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 Department of Commerce will determine, in consultation
with the Maritime Administration, whether such transportation is
``ocean'' transportation; and
(ii) Authorization to export such Alaska 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 validated 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 U.S. of refined petroleum products that are needed
in the U.S. 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 refine 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 [[Page 25375]] 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) Definition of ``crude oil''. ``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.
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 1C80D, 1C82D, 1C83D, and 1C84D on the CCL (Supplement
No. 1 to part 774 of this subchapter), 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. See
paragraph (c) of this section for License Exceptions for non-naval
petroleum reserves products.
(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. See paragraph (c) of this
section for License Exceptions that apply to non-naval petroleum
reserve products.
(c) License Exception for Non-Naval Petroleum Reserve products
(NPR). Subject to the requirements set forth in this paragraph, License
Exception NPR may be used to export without a license petroleum
products that were not produced or derived from the Naval Petroleum
Reserves or became available for export as a result of an exchange of a
Naval Petroleum Reserves-produced or derived commodity.
(1) The requirements and restrictions set forth in Sec. 740.1 and
Sec. 740.2 of this subchapter that apply to all License Exceptions also
apply to the use of License Exception NPR.
(2) A person exporting any item pursuant to this License Exception
must enter on any required Shipper's Export Declaration (SED) the
letter code ``SS-NPR''.
Sec. 754.4 Unprocessed western red cedar.
(a) License requirement. (1) As indicated by the letters ``SS'' in
the ``Reason for Control'' paragraph in the ``License Requirements''
section of ECCN 1C88D on the CCL Supplement No. 1 to part 774 of this
subchapter), a license is required to all destinations, including
Canada, for the export of unprocessed western red cedar covered by ECCN
1C88D (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.
(2)(i) Applicants requesting export of 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)-----------------------------------------------------------------
(ii) For Items [6] and [7] 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 prescribed in part 762 of this subchapter, 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.
(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 set forth below, 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, 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 [[Page 25376]] 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 set forth in Secs. 740.1 and
740.2 of this subchapter 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) 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 1C88D, 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 0A80D on the CCL (Supplement No. 1 to part 774 of this
subchapter) 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 applications 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 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 1C80D, 1C81D,
1C82D, 1C83D, and 1C84D.
Schedule B
------------------------------------------------------------------------
Number 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.
[[Page 25377]]
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& F. of less than 45 seconds.
2710.00.1007 Distillate fuel oils (No. 4 type) having a Saybolt
Universal viscosity at 100& F. of 45 seconds or
more, but not more than 125 seconds.
2710.00.1050 Fuel oils, having a Saybolt Universal viscosity at
100& 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.
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 1C88D.
Schedule B
------------------------------------------------------------------------
Number Unit of
1\1\ Commodity description quantity\2\
------------------------------------------------------------------------
200.3516. Western red cedar (Thuja plicata) logs and
timber......................................... MBF
202.2820. Western red cedar lumber; rough, containing wane MBF
202.2840. Western red cedar lumber; dressed or worked,
containing wane................................ MBF
------------------------------------------------------------------------
1Schedule B Numbers are provided only as a guide to proper completion of
the Shipper's Export Declaration, Form No. 7525 V.
2For export licensing purposes, report commodities on Form BXA-748P in
units of quantity indicated.
Supplement No. 3 to Part 754--Statutory Restrictions on Exports of
Crude Oil\1\
Export Administration Act of 1979, as Amended
50 U.S.C. App. 2406(d)
(d) Domestically produced crude oil.
\1\The statutory material published in this Supplement is
provided for the information of the reader only. See the U.S. Code
for the official text of this material.
---------------------------------------------------------------------------
(1) Notwithstanding any other provision of this Act and
notwithstanding subsection (u) of section 28 of the Mineral Leasing Act
of 1920 (30 U.S.C. 185), no domestically produced crude 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) (except any
such crude oil which (A) is exported to an adjacent foreign country to
be refined and consumed therein in exchange for the same quantity of
crude oil being exported from that country to the United States; such
exchange must result through convenience or increased efficiency of
transportation in lower prices for consumers of petroleum products in
the United States as described in paragraph (2)(A)(ii) of this section,
or (B) is temporarily exported for convenience or increased efficiency
of transportation across parts of an adjacent foreign country and
reenters the United States) may be exported from the United States, or
any of its territories and possessions, unless the requirements of
paragraph (d)(2) of this section are met.
(2) Crude oil subject to the prohibition contained in paragraph (1)
may be exported only if:
(A) The President makes and publishes express findings that exports
of such crude oil, including exchanges:
(i) Will not diminish the total quantity or quality of petroleum
refined within, stored within, or legally committed to be transported
to and sold within the United States; [[Page 25378]]
(ii) Will, within 3 months following the initiation of such exports
or exchanges, result in:
(A) Acquisition costs to the refiners which purchase the imported
crude oil being lower than the acquisition costs such refiners would
have to pay for the domestically produced oil in the absence of such an
export or exchange; and
(B) Not less than 75 percent of such savings in costs being
reflected in wholesale and retail prices of products refined from such
imported crude oil;
(iii) Will be made only pursuant to contracts which may be
terminated if the crude oil supplies of the United States are
interrupted, threatened, or diminished;
(iv) Are clearly necessary to protect the national interest; and
(v) Are in accordance with the provisions of this Act; and
(B) The President reports such findings to the Congress and the
Congress, within 60 days thereafter, agrees to a concurrent resolution
approving such exports on the basis of the findings.
(3) Notwithstanding any other provision of this section or any
other provision of law, including subsection (u) of section 28 of the
Mineral Leasing Act of 1920, the President may export oil to any
country pursuant to a bilateral international oil supply agreement
entered into by the United States with such nation before June 25,
1979, or to any country pursuant to the International Emergency Oil
Sharing Plan of the International Energy Agency.
Mineral Lands Leasing Act
30 U.S.C. 185(u)
(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 to 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 Unites
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 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)
(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.
(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.
Sec. 756.1 Introduction.
Sec. 756.2 Appeal from an administrative action.
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2410 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 756.1 Introduction.
(a) Scope. This part 756 describes the procedures applicable to
appeals from administrative actions taken under the Export
Administration Act of 1979, as amended (EAA) or the Export
Administration Regulations (EAR). Any person directly and adversely
affected by an administrative action taken by the U.S. Department of
Commerce may appeal to the Under Secretary for reconsideration of that
administrative action. The following types of administrative actions
are not subject to the appeals procedures set forth in this part 756:
(1) Issue, amend or revoke or appeal a regulation. (These requests
may be submitted to the Department at any time.)
(2) Denial or probation orders, civil penalties, sanctions, or
other actions under parts 764 and 766 of this subchapter.
(b) Definitions. The following are definitions of terms used in
this part 756:
Administrative action. Any action taken by the U.S. Department of
Commerce under the EAA or the EAR with respect to a particular person
including denial of a license application, return without action of a
license application for other than procedural deficiencies or
additional information, or classification of an applicant's commodity.
Administrative actions do not include enforcement actions under part
764 of this subchapter. [[Page 25379]]
Appeal. A request for relief from an administrative action taken by
the Bureau of Export Administration.
Appellant. A person, or their representative, requesting relief
from an administrative action taken by the Bureau of Export
Administration.
Person. Any individual, partnership, corporation, or other form of
association.
Under Secretary. The term ``Under Secretary'' refers to the Under
Secretary and any other official delegated authority, by the Under
Secretary to review and decide an appeal submitted pursuant to
Sec. 756.2(a)(2) of this part.
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
Department of Commerce official the authority to review and decide the
appeal. In addition, the Under Secretary may designate any Department
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. A full written statement in support of the
request must be filed with the appeal. The request 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
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. All hearings, if granted, 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 will 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
will 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 will not be
made, 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
Departmental official to conduct an informal hearing, that designee
will submit a written report containing a summary of the hearing and
recommended action to the Under Secretary.
(c) Decisions--(1) Determination of appeals. In addition to the
documents specifically submitted in connection with the appeal, the
Under Secretary will consider any recommendations, reports, or relevant
documents available to the Department of Commerce in determining the
appeal, but will 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 will decide an appeal within
a reasonable time after receipt of the appeal. The decision will 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 will be final.
(d) Effect of appeal. Acceptance and consideration of an appeal
will 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--GENERAL EXPORT CLEARANCE REQUIREMENTS
Sec.
758.1 General export clearance requirements.
758.2 Use of license.
758.3 Shipper's Export Declaration.
758.4 Conformity of documents for shipments under export licenses.
758.5 General destination control requirements.
758.6 Destination control statements.
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 U.S. Department
of Commerce or Customs Service.
758.9 Other applicable laws and regulations.
758.1 General export clearance requirements.
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2410 et seq.; 46 U.S.C. 466(c); E.O. 12924.
(a) Responsibility of licensee, exporter and agent. (1) If you are
issued a Bureau of Export Administration (BXA) license, or you rely on
a License Exception described in part 740 of this subchapter, 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 a license issued by BXA, you are
responsible for determining that the transaction is outside the scope
of the EAR or the export is designated as ``No License Required'' or
``Not on List'', as described in paragraph (a)(3) and (4) 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 this
subchapter) but that do not require a license by reason of the Commerce
Country Chart contained in Supplement 1 to part 738 of this subchapter,
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
Commerce Control List but do not require a license by reason of the
Commerce Country Chart (Supplement No. 1 to part 738 of this
subchapter); that they do not [[Page 25380]] require a license under
General Prohibitions One (Exports and Reexports in the Form Received),
Two (Parts and Components Reexports), or Three (Foreign Produced Direct
Product Reexports); General Prohibitions Four through Ten do not apply
to the given export, reexport, or other activity; and the items are
subject to the EAR.
(4)(i) ``Not on List'' designation. Some items that are not on the
Commerce Control List are subject to the EAR (see Sec. 732.3 of this
subchapter). When exporting such items, you must designate them on your
shipping documents as ``NOL'', or ``not on list'', in accordance with
the provisions of this part.
(ii) NOL notation. Entering the symbol NOL is a representation to
the U.S. government that the items being exported are not listed on the
Commerce Control List but are subject to the Export Administration
Regulations and therefore do not require a license under General
Prohibitions One (Exports and Reexports in the Form Received), Two
(Parts and Components Reexports), and Three (Foreign Produced Direct
Product Reexports); General Prohibitions Four through Ten do not apply
to the given export, reexport, or other activity.
(5) License Exception symbol. Entering a License Exception symbol
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 this subchapter for details regarding License Exceptions)
(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. The agent must be authorized to act on behalf of the
exporter either for the specific transaction for which he is submitting
the Shipper's Export Declaration or under a general power of attorney.
The Foreign Trade Statistics Regulations of the Bureau of the Census
(15 CFR part 30) set forth 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.
(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 this subchapter. 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
this subchapter)
(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 this
subchapter.
(d) Exports by mail. (1) Exports made under a license issued by the
Bureau of Export Administration. Before making by mail an export 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
Shipper's Export Declaration (SED) to the post office at the place of
mailing, when required by these regulations and/or the Foreign Trade
Statistics 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 (see list beginning on page ii under Commerce Office
Addresses).
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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 you ship under one
of the ``No License Required'' or ``Not On List'' provisions or under a
License Exception as described in part 740 of this subchapter.
(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 Shipper's Export Declaration.
(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
Shipper's Export Declaration.
(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 Shipper's Export Declaration and/or parcel. If
you are exporting an item that is not listed on the Commerce Control
List, or one that is listed but for the export of which no license is
required, or you are exporting pursuant to a License Exception as
described in part 740 of this subchapter, you must enter the
appropriate symbol indicating the absence of a license requirement
(either NLR, meaning ``No License Required'' or NOL meaning ``Not On
List'') or of the applicable License Exception 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 indicating the
absence of a license requirement (either NLR, meaning ``No License
Required'' or NOL meaning ``Not On List'') or of the applicable License
Exception on the address side of the parcel along with the phrase
``Export License Not Required.''
(A) By entering the symbol NLR you are representing to the U.S.
government that: the items you are exporting are listed on the Commerce
Control List (See Supplement No. 1 to part 774 of this subchapter) but
do not require a license by reason of the Country Chart (Supplement No.
1 to part 738 of this subchapter); that it does not require a license
under General Prohibitions One (Exports and Reexports in the Form
Received), Two (Parts and Components Reexports), or Three (Foreign
Produced Direct Product Reexports); General Prohibitions Four through
Ten do not apply to the given export, reexport, or other activity; and
the item is subject to the EAR.
(B) By entering the symbol NOL, you are representing to the U.S.
government that the items you are exporting are not listed on the
Commerce Control List but is subject to the Export Administration
Regulations and therefore does not require a license under General
[[Page 25381]] Prohibitions One (Exports and Reexports in the Form
Received), Two (Parts and Components Reexports), and Three (Foreign
Produced Direct Product Reexports); General Prohibitions Four through
Ten do not apply to the given export, reexport, or other activity.
(C) 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
this subchapter for details regarding License Exceptions)
(v) Gift parcels. If you are sending a gift parcel to Cuba, North
Korea or Libya pursuant to the requirements of part 746 of this
subchapter, 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 set forth in Sec. 740.15 through Sec. 740.18 of this
subchapter, 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 (b) of this section on the documents or packages, you are
certifying to the post office and to the Bureau of Export
Administration that you are exporting the package in compliance with
all of the terms and provisions of the License Exception or other
authority to export.
(c) Exports by means other than mail. (1) (i) Exemptions to
Shipper's Export Declaration. A Shipper's Export Declaration 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 this subchapter) 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. As used here ``shipment''
means all commodities classified under a single Schedule B Number,
shipped on the same carrier, from one exporter to one importer;
(B) Any shipment reported under the provisions of the Monthly
Reporting Procedure (Sec. 758.3(p) of this part); or
(C) Any shipment made under any other exception to the Shipper's
Export Declaration requirements provided elsewhere in this part 758 or
in part 740 of this subchapter. (A complete list of exceptions to the
Shipper's Export Declaration requirement is set forth in Subpart D of
the Bureau of the Census' Foreign Trade Statistics Regulations. See
Supplement No. 1 to this part 758.)
(ii) Exceptions from Shipper's Export Declaration requirements.
(A) Statement on shipping documents. If you are exempt by paragraph
(c)(1) of this section from the requirement of filing a Shipper's
Export Declaration, the Bureau of the Census Foreign Trade Statistics
Regulations (FTSR) (15 CFR Sec. 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.
(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 the Bureau
of Export Administration, or the appropriate symbol indicating the
absence of an export license requirement (either NLR, meaning ``No
License Required'' or NOL meaning ``Not On List'') or of the applicable
License Exception from part 740 of this subchapter.
(2) The notation required by paragraph (c)(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) Presentation of declaration. The exporting carrier is
responsible for the accuracy of the following items of information
(where required) on the Shipper's Export Declaration:
(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 the Bureau of Export Administration, it may
still require a Shipper's Export Declaration. Before shipping, check
the Bureau of the Census Foreign Trade Statistics Regulations for the
complete Shipper's Export Declaration requirements.
(d) Shipments transiting Canada en route to other countries.
(1) Shipments moving under individual Shipper's Export Declaration.
When an export to a foreign country is made in transit through Canada,
and the shipment is one for which an individual Shipper's Export
Declaration is required pursuant to 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. Shipper's Export Declaration, Form 7525-V,
certified by the exporter as ``A True Copy'' of the original Shipper's
Export Declaration.
(i) Shipments for which individual Shipper's Export Declarations
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
Shipper's Export Declaration is not required because:
(A) The forwarder or broker is authorized to report export
information to Census by means other than an individual Shipper's
Export Declaration; or
(B) 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 the Bureau of Export Administration, or the
appropriate symbol indicating the absence of an export license
requirement (either NLR, meaning ``No License Required'' or NOL meaning
``Not On List'') or of the applicable License Exception from part 740
of these Export Administration Regulations on the bill of lading or
other loading document as directed in paragraph (c)(2) of this section.
The properly annotated bill of lading or other loading document, along
with the license authorization, when required, must be displayed to the
Canadian Customs authorities at the Canadian [[Page 25382]] port of
entry and a copy provided, if requested by the Canadian authorities.
(2) Reserved.
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 are met.
(i) The Bureau of Export Administration 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 the
Bureau of Export Administration, 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 in
the same quantity and of the same value to the same consignee and
destination under the same license. Before reshipping, the exporter
must submit to the Office of Exporter Services of the Bureau of Export
Administration of the U.S. Department of Commerce satisfactory evidence
of the original export and of the failure to deliver the shipment,
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 Export Administration Regulations regarding the specific
item and destination.
Sec. 758.3 Shipper's Export Declaration.
(a) Shipper's Export Declaration presentation requirement. Both the
Foreign Trade Statistics Regulations of the Census Bureau (15 CFR part
30) and these Export Administration Regulations require that Shipper's
Export Declarations be submitted to the U.S. government. There are a
few exceptions to this rule, but if you are required to submit a
Shipper's Export Declaration 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) Shipper's Export Declaration is a statement to the U.S.
government. Your Shipper's Export Declaration is a statement to the
U.S. government in which you assert that all of the information shown
on the Shipper's Export Declaration is true. You may execute and submit
the Shipper's Export Declaration only if you are the exporter or the
duly authorized forwarding agent of an exporter.
(c) Limitation on time when Shipper's Export Declaration may be
used. No one may use a Shipper's Export Declaration 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 Export Administration Regulations that authorize
export without a license, except as provided in Sec. 750.6(d) of this
subchapter and Sec. 758.2(b) of this part.
(d) Additional copies of the Shipper's Export Declaration. You are
required to submit additional copies of the SED when:
(1) The Bureau of Export Administration or one of its component
offices asks you to send it copies of the Shipper's Export Declaration
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 this subchapter; or
(iii) Of items controlled for short supply reasons (See part 754 of
this subchapter); or
(iv) Required by Sec. 758.1(d) of this part.
(2) Reserved.
(e) Statements on Shipper's Export Declaration. Whenever a SED is
presented to a carrier, a customs office, or a postmaster, the exporter
and the person making the presentation represent 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 this subchapter;
(2) Export of the items described on the SED is authorized under
the ``No License Required'' or ``Not on List'' provisions of this
subchapter, a License Exception described in part 740 of this
subchapter, 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 or ``Not on List'' provisions of this subchapter;
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 Shipper's Export
Declaration. (1) General. Except as described in paragraph (f)(2) of
this section, more than one item may be listed on the same Shipper's
Export Declaration 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'' or ``Not On List'' provisions of this subchapter, they may
still be shown on one Shipper's Export Declaration. The applicable
license number and expiration date, License Exception symbol, the ``No
License Required'' symbol (NLR) or the ``Not on List'' symbol (NOL)
must be shown under each of the properly aligned line item descriptions
(including quantity, if required, Schedule B Number, and value) to
which each authorization applies. The following apply for notations
made on Shipper's Export Declarations:
(i) Entering the license number and 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'' or ``NOL'' is
a representation to the U.S. government that the shipment meets one of
the applicable provisions of paragraphs (a)(3) through (a)(5) of
Sec. 758.1 to this part.
(2) Exception. Separate Shipper's Export Declarations 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 Shipper's Export Declaration
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 [[Page 25383]] Domestic
and Foreign Commodities Exported from the United States, in the
designated column of the Shipper's Export Declaration regardless of
whether the shipment is being exported under authority of a license
issued by the Bureau of Export Administration, a License Exception
described in part 740 of this subchapter, or the ``No License
Required'' or ``Not on List'' provisions of this subchapter.
(2) Item description for exports under a license. (i) General. If
your export is being made under the authority of a license issued by
the Bureau of Export Administration, you must enter the item
description shown on the license on the Shipper's Export Declaration.
However, if part of the description on the license is underlined, you
need place only the underlined portions on the Shipper's Export
Declaration. The item description on the license will be stated in
Commerce Control List terms, which may be inadequate to meet Census
Bureau requirements. In this event, the item description you place on
the Shipper's Export Declaration 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 Shipper's Export Declaration provided
for the commodity description. When a single Shipper's Export
Declaration 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 are exported under the ``No
License Required'' or a ``Not on List'' provision of this subchapter,
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 Shipper's Export Declaration.
(h) License number or other authorization designation. (1) Exports
under authority of a license issued by the Bureau of Export
Administration. 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 Shipper's Export Declaration
covering an export under a license issued by the Bureau of Export
Administration (The space for the item description on the SED form may
be headed ``commodity description''). If you have also included other
items on the Shipper's Export Declaration that may be exported under a
License Exception, or under a ``No License Required'' or ``Not on
List'' provision of this subchapter, you must show the license number
and expiration date immediately below the specific description
(quantity, Schedule B, value) of the item(s) to which the license
applies.
(2) Exports not needing a license. In addition to the item
description, the License Exception symbol, ``No License Required''
symbol (NLR) or ``Not on List'' symbol (NOL) must be shown in the
appropriate column of each Shipper's Export Declaration covering a
shipment under authority of a License Exception (see part 740 of this
subchapter), or a ``No License Required'' or ``Not on List'' provision
of this subchapter. If several items, authorized by different License
Exceptions, ``No License Required'' provisions or ``Not on List''
provisions are listed on one declaration, the appropriate symbol for
each item must be placed under the properly aligned description of that
item. If the item will be exported under the provisions of License
Exceptions GBS, CIV, LVS or CSR, the ECCN must also be shown in the
designated space. The following apply for notations made on Shipper's
Export Declarations:
(i) Entering the license number and 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'' or ``NOL'' is
a representation to the U.S. government that the shipment meets one of
the applicable provisions of paragraphs (a)(3) through (a)(5) of
Sec. 758.1 to this part.
(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'' or ``Not on List'' provisions of this
subchapter, the License Exceptions described in part 740 of this
subchapter, 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 (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'' or ``Not on List'' provisions of this
subchapter, 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 Shipper's Export
Declaration 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, ``Not on List'' provision or License
Exception to these Export Administration Regulations.
(5) Shipments under a license issued by the Bureau of Export
Administration. 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 this
subchapter 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 Shipper's Export Declaration, or if there is no
Shipper's Export Declaration, 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. [[Page 25384]]
(6) Correcting the Shipper's Export Declaration. 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
are set forth in Sec. 758.3(n) of this part.
(j) Signature on Shipper's Export Declaration. The exporter or the
exporter's authorized forwarding agent, or an authorized employee of
either, may sign the Shipper's Export Declaration. 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 Shipper's Export Declaration 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 Shipper's Export Declaration. If you need
additional space for any information on the SED, you may use additional
copies of the Shipper's Export Declaration or copies of the
continuation sheet. In such cases, only one Shipper's Export
Declaration need be signed. You must number the additional sheets in
sequence and securely attach them to the executed Shipper's Export
Declaration. You must insert the following statements between the
column provided for marks and numbers of the shipment and the column
provided for its value:
This Shipper's Export Declaration consists of this sheet and
________ continuation sheets.
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 Shipper's
Export Declaration 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 this subchapter). 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 Shipper's Export Declaration.
(m) Shipper's Export Declaration for shipments moving in-transit.
(1) Applicability. Use the Shipper's Export Declaration 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.
---------------------------------------------------------------------------
(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.
(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 Shipper's Export Declaration (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 Shipper's Export Declaration 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 this subchapter 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 this subchapter), 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 section 30.8 of the Foreign Trade Statistics Regulations
(15 CRF 30.8) for additional requirements concerning the information
that must be placed on a Shipper's Export Declaration for In-transit
Goods.
(n) Correction, change, alteration, or amendment of Shipper's
Export Declaration. (1) Methods of changing declarations. 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
[[Page 25385]] 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 herein relieves you or any person or
firm making changes on the Shipper's Export Declaration from
responsibility for any such changes. Acceptance of a changed Shipper's
Export Declaration 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 Shipper's Export
Declarations. (1) Scope. This paragraph contains only basic information
about the monthly filing procedures for the SED. Details of the
procedure are set forth in Sec. 30.39 of the Foreign Trade Statistics
Regulations (FTSR) of the Bureau of the Census (15 CFR Sec. 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 Canada and destinations in Country
Group B (see Supplement No. 1 to part 740 of this subchapter).
(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., N.W., Washington, D.C. 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 or License
Exception, as applicable;
(4) Return of licenses to the Bureau of Export Administration in
accordance with Sec. 750.7 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 Export Administration Regulations and, in addition, I (we)
agree that my (our) office records will be made available for
inspection by the Bureau of the Census, the Bureau of Export
Administration 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. 758.8 of
this part, whenever an official of the Bureau of Export Administration,
a customs officer, or a postmaster deems such action necessary to
assure compliance with the Export Administration Regulations.
(7) Revocation of authorization. An authorization to file summary
monthly reports in lieu of individual Shipper's Export Declarations,
granted under the provisions of Sec. 30.39 of the Foreign Trade
Statistics Regulations (15 CFR Sec. 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 Shipper's Export Declarations, 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 set forth in this
section apply to shipping documents used in connection with any
shipment under the authority 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
the Bureau of Export Administration 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 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'' [[Page 25386]] 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.
(2) 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 Shipper's Export Declaration, 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.
(3) 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.
(4) 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 Shipper's Export Declaration, or if
there is no Shipper's Export Declaration, 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 the
Bureau of Export Administration. 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.
(2) Delivery of cargo. No carrier may deliver cargo to any country
other than 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) 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 this
subchapter 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), 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 the Bureau of Export Administration, no one is
required to notify BXA of the unloading. The exporter may dispose of
the items in that country without approval of the 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 or reason to know
that a violation of the Export Administration Act, the EAR, or any
order, license or [[Page 25387]] 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 the Bureau of Export Administration
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 the Bureau of Export Administration;
(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
the Bureau of Export Administration 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 the BXA of
the proposed disposition of the items. The exporter may not dispose of
the items without approval of the BXA.
Sec. 758.6 Destination control statements.
(a) Requirement for destination control statement. One of the
destination control statements 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 made under a license, or
that is authorized by the following License Exceptions: PTS, GBS, CIV,
CSR, LVS, NSG, SLV, TUS, or TMP. In addition, if an item would require
a license to be exported to any destination in County Group D:1, and
the total value of all such items in a particular shipment exceeds
$250, a destination control statement found 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 the export of that item
even if the export would be authorized by the ``no license required''
provision described in Sec. 758.1(a)(2)(i) of this part. 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. (1) For exports
authorized by a license or License Exceptions CSR or NSG, either
statement 1 or 2 may be used.
(i) Statement 1. These commodities, technology or software were
exported from the United States in accordance with the Export
Administration Regulations for ultimate destination [name of country].
Diversion contrary to U.S. law is prohibited.
(ii) Statement 2. These commodities, technology or software were
exported from the United States in accordance with the Export
Administration Regulations for ultimate destination [name of country]
and may be resold or redistributed in [names of countries]. Diversion
contrary to U.S. law is prohibited.
(2) Completion of country information in Statements 1 and 2. (i)
Shipments authorized by a license. If the shipment is authorized by a
license, enter the name of the country to which the exports are
licensed in the blank for ``name of country'' in either statement one
or two. The country must be the same as the country of ultimate
destination stated on the license and Shipper's Export Declaration or
other document described in Sec. 758.4(c)(1)(ii) of this part. If the
license authorizes resale or redistribution in other countries you may
use the second statement, in which case, in the space for ``names of
countries'' enter either the names of the countries to which the
license authorizes resale or redistribution or you may enter the phrase
``all countries except'' followed by a list of the countries to which
the license does not authorize resale or redistribution.
(ii) Shipments authorized by License Exceptions CSR or NSG. For
shipments authorized by License Exceptions CSR or NSG, enter the name
of the country to which you are exporting the item in the blank for
``name of country''. This country must the same as the country of
ultimate destination stated on the appropriate document described in
Sec. 758.4(c)(1)(ii) of this part. If you use Statement 2, enter either
the names of the countries to which direct exports from the United
States would be authorized under the License Exception you are using or
the phrase ``all countries except'' followed by a list of the countries
to which exports would not be permitted under the License Exception you
are using.
(3) Other exports. If the item would require a license to be
exported to any destination in County Group D:1, but does not require a
license to be exported to the country to which it is destined and the
export would not be authorized under License Exceptions CSR or NSG and
the total value of all such items in a particular shipment exceeds $250
or if the export is authorized by License Exception GBS or LVS, you may
use the following statement 3:
Statement 3: United States law prohibits disposition of these
items in Cuba, Iraq, Libya, North Korea and other countries as
stated in Country Group D, Number 1 of the Export Administration
Regulations, unless otherwise authorized by the United States.
Diversion to countries, persons or uses contrary to U.S. law is
prohibited.
(4) Shipments License Exceptions PTS, CIV, TUS or TMP. If the
export is authorized by License Exceptions PTS, CIV, TUS, or TMP (see
part 740 of this subchapter for additional information), you may use
the following statement:
Statement 4. United States law prohibits disposition of these
items in Cuba, Iraq, Libya, or North Korea. Diversion to countries,
persons or uses contrary to U.S. law is prohibited.
(5)(i) Special statement for approved consignees under Special
Comprehensive Licenses. Approved consignees under Special Comprehensive
Licenses may comply with the requirements of Sec. 752.6(d) of this
subchapter by using the following statement:
These items were authorized for export from the United States
under a Special Comprehensive License procedure on the condition
that they may not be reexported without prior approval from United
States authorities.
(ii) The approved consignee may use more specific wording referring
to the need for BXA approval. The notice may be translated into an
appropriate language.
(c) 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 [[Page 25388]] 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 set forth in the
statement;
(ii) 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 this subchapter, a copy of his notification to the exporter
and the original of the exporter's assurance required by paragraph
(c)(2)(i) of this section. (For further recordkeeping requirements, see
part 762 of this subchapter)
(iv) If the agent prepares the invoice, the agent's
responsibilities are governed by paragraph (c)(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.
(d) Responsibility for distributing copies of the invoice. The
exporter or other person issuing any invoice containing a destination
control statement must promptly send copies to:
(1) The ultimate consignee and the purchaser named in the
declaration;
(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 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.
(e) 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 (c)(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 (e) of this section do not apply to a ``master'' air waybill
issued by a carrier to cover a consolidated shipment.
(f) 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.
(g) 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 BXA, the Office of Export Enforcement, Customs
offices and Postmasters in clearing shipments.
(a) Actions to assure compliance with the regulations. 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 the Bureau of Export
Administration 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 the
Bureau of Export Administration 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 Shipper's Export Declaration, or
if there is no Shipper's Export Declaration, 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. [[Page 25389]]
(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 officials 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.
(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 data 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 them in
violation of the Export Administration Regulations, or whenever they
know or has probable cause to believe that 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 Shipper's Export Declaration, or if
there is no Shipper's Export Declaration, 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 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 U.S.
Department of Commerce 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, the 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 the 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) of this part, relating to reporting, notification to
BXA, and the prohibition against unauthorized delivery or entry of the
item data into a foreign country, shall apply also when
[[Page 25390]] 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
the Bureau of Export Administration, U.S. Department of Commerce.
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 Shipper's
Export Declarations and manifests, or any applicable rules and
regulations of the U.S. Customs Service.
Supplement No. 2 to Part 778--[Redesignated as Supplement No. 2 to
Part 742]
2. Supplement No. 2 to part 778 is redesignated as Supplement No. 2
to part 742.
Part 769--[Redesignated as Part 760]
3. Part 769 is redesignated as part 760, and references to ``769''
are revised to read ``760'' wherever they appear.
4. Parts 762, 764, and 766 are added and parts 768, 770, and 772
are revised to read as follows:
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: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2410 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 762.1 Scope.
(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 this subchapter;
(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 item involved is to be
reexported, transshipped, or diverted from Canada to another foreign
country; or
(4) Any other transactions subject to the Export Administration
Regulations. 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 lead to a violation of the Export
Administration Act, the Export Administration Regulations 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 Export Administration Regulations, 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 this
subchapter;
(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, or that are made or obtained
by a person described in Sec. 762.1(b) of this part.
(b) Additional record retention requirements. In addition to the
records required to be retained by paragraph (a) of this section, other
sections of the Export Administration Regulations require the retention
of records including, but not limited to part 734 and Sec. 736.14,
Sec. 740.1, Sec. 740.20, Supplement No. 4 to part 742, Secs. 746.17,
748.6, 748.7, 748.10, 748.11, 748.13, 748.14, 750.7, 750.8, 750.9,
750.10, 752.5, 752.7, 752.10, 752.11, 752.12, 752.13, 752.14, 752.15,
752.16, 754.4, 758.3, 758.6, 760.6, 762.2, 764.2, 764.5, and 766.10.
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 [[Page 25391]] which he or she receives or creates them unless he or
she meets all of the conditions of Sec. 762.5 of this part relating to
reproduction of records.
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 may use any
photographic, photostatic, miniature photographic, micrographic,
automated archival storage, or other process that completely,
accurately, 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.
(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:
(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
this subchapter 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;
(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 this
subchapter, 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 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 Export Administration Regulations, 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 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 Export Administration Regulations 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 accredited
representative of the U.S. Government, without any charge or expense to
such agent, official or employee.
PART 764--ENFORCEMENT
Sec.
764.1 Introduction.
764.2 Violations.
764.3 Sanctions.
764.4 Reporting of violations.
764.5 Voluntary self-disclosure. [[Page 25392]]
Supplement No. 1 to Part 764--Standard Terms of Orders Denying
Export Privileges
Supplement No. 3 to Part 764--Denied Persons List
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2410 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 764.1 Introduction.
This part describes conduct which constitutes a violation of the
Export Administration Act (EAA) and/or the Export Administration
Regulations (EAR), and sets forth the sanctions that may be imposed for
such violations. Although the violations and sanctions set forth in
this part may be applicable to antiboycott cases, other antiboycott
violations are identified in part 760 of this subchapter. This part
explains administrative sanctions that may be imposed by Bureau of
Export Administration (BXA) and criminal sanctions that may be imposed
by a United States court, and also refers to protective administrative
measures, as well as to other sanctions which are neither
administrative nor criminal. Information is provided on how to report
and disclose violations.
Sec. 764.2 Violations.
(a) Engaging in prohibited conduct. No person may engage in any
conduct prohibited by, or refrain from engaging in any conduct required
by, the EAA, the EAR, or any order, license or authorization issued
thereunder.
(b) Causing, aiding and 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 do any act that
solicits the commission of, or that constitutes an attempt to bring
about, 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 items exported or to be exported from the United States, or which
is otherwise subject to the EAR, with knowledge or reason to know 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.
(f) Possession with intent to export illegally. No person may
possess any items controlled for national security or foreign policy
reasons under sections 5 or 6 of the EAA: (1) with intent to export
such items in violation of the EAA, the EAR, or any order, license or
authorization issued thereunder, or (2) with knowledge or reason to
know that the items would be so exported.
(g) Misrepresentation and concealment of facts.
(1) No person may make any false or misleading representation,
statement, or certification, or falsify or conceal any material fact,
whether directly to BXA, the United States Customs Service, or an
official of any other United States agency, or indirectly to any of the
foregoing through any other person or any foreign government agency or
official:
(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 this
subchapter; or
(iii) For the purpose of or in connection with effecting an export
from the United States, the reexport, transshipment, or diversion of
any such export, or any 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(ies), in writing, of any change of any material
fact or intention from that previously represented, stated, or
certified, immediately upon receipt of any information which would lead
a reasonably prudent person to believe 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, either independently or through any other person, 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 (see part 762 of this subchapter) requirements in
violation of the EAA, the EAR, or any order, license or authorization
issued thereunder.
(j) Misuse of license, export control documents. (1) Unauthorized
use and alteration. Except as specifically authorized in the EAR or in
writing by BXA, no licensee or other person may obtain, use, alter,
assist in, or permit the use or alteration of any export control
document for the purpose of, or in connection with, facilitating or
effecting any export or reexport other than that set forth in such
document and in accordance with all the terms, provisions, and
conditions thereof.
(2) Trafficking and advertising export control documents. Without
prior written approval of the BXA, no person may do any of the
following with respect to any export or reexport in connection with any
export control document:
(i) Effect any transfer of, or other change in the authority
granted in such document, whether by sale, grant, gift, loan or
otherwise, to any person; permit any person to use an export control
document other than for the true account of and as true agent in fact
for the licensee; or, if that person is not the licensee, to receive or
accept a transfer or other change of the authority granted in, or
otherwise use an export control document except for the true account of
and as true agent in fact for the licensee.
(ii) Effect any change of, substitution for, or addition to, the
parties named in an export control document; or transfer, obtain,
purchase, or create any interest or participation in the transaction
described in any export control document.
(iii) Offer or solicit by advertisement, circular, or other
communication any transfer or change of an export control document or
any interest therein prohibited above. Such communication shall be
deemed unlawful:
(A) Even though coupled with a condition requiring approval by BXA
of a new consignor or consignee or other change in the export license,
by way of transfer or otherwise;
(B) Where, in offering or soliciting the sale for export of any
items, the communication indicates that the proposed seller of such
items holds or will furnish a license or other export control document
for the export of such items;
(C) Where, in offering or soliciting the purchase for export of any
items, that communication is addressed by the proposed buyer directly
or indirectly to any person on the condition that such person as a
seller then holds or will [[Page 25393]] furnish a license or other
export control document for the export of those items.
(iv) Other unlawful practices. It is unlawful:
(A) For a licensee or other person holding an export control
document to sell or offer to sell, or for any person to purchase or to
offer to purchase, the items described in such document with the
understanding that the document may be used by or for the benefit of
the purchaser to effect export of those items;
(B) For any person to effect the export of the commodities referred
to in Sec. 764.2(j)(2) of this part for the benefit of or ``for the
account'' of any person other than the licensee, regardless of the
device, means, or fiction employed;
(C) For the licensee to act fictitiously as principal or agent of
another person who actually is effecting the export, or for such other
person to act fictitiously as the licensee's principal or agent for the
same purpose;
(D) For the named consignee to act ``for the account'' of a new
unlicensed consignee; or
(E) For any person to use a license, originally issued for a
specified transaction which was not effected, for any other transaction
without the specific written authorization from BXA.
(k) Acting contrary to the terms of a denial order. No person may
take any action that is prohibited by the terms or conditions of a
denial order.
Sec. 764.3 Sanctions.
(a) Administrative. Violations of the EAA, the EAR, or any order,
license or authorization issued thereunder are subject to the
administrative sanctions set forth in this section, and to any other
liability, sanction or penalty available under law. Administrative
sanctions for violations, which are imposed pursuant to the
administrative enforcement procedures set forth in part 766 of this
subchapter, are separate and distinct from protective administrative
measures taken by BXA, such as temporary denial orders, license
suspension and revocation, and suspension of eligibility for license
exceptions, all of which are inherent in the exercise of BXA's
regulatory and licensing authority, but not all of which are subject to
part 766 administrative enforcement procedures.
(1) Civil penalty. (i) In addition to, or instead of, any or all of
the administrative sanctions described in this section, a civil penalty
not to exceed $10,000 for each violation of the EAA, the EAR, or any
order, license or authorization thereunder may be imposed, except that
a civil penalty not to exceed $100,000 may be imposed for each
violation of the EAA, the EAR, or any order, license or authorization
thereunder involving national security controls imposed under section 5
of the EAA.
(ii) The payment of any civil penalty imposed 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.
Moreover, the payment of any penalty imposed may be deferred or
suspended in whole or in part for a period of time no longer than any
probation period (which may exceed one year) that may be imposed upon
such person. Such deferral or suspension shall not operate as a bar to
the collection of the penalty in the event that the conditions of the
suspension, deferral, or probation are not fulfilled.
(2) Denial of export privileges. An order may be issued in
accordance with the procedures in part 766 of this subchapter that
restricts the ability of the named persons to engage in export-related
transactions involving items subject to the EAR, or that restricts
access by named persons to items subject to the EAR. Such an order
denying export privileges may be imposed either as a sanction for a
violation specified in this part; as a temporary denial order, an
administrative protective measure that may be taken pursuant to
Sec. 766.24 of this subchapter; or as an order issued against a person
convicted for violating one or more of the statutes listed in section
11(h) of the EAA, an administrative protective measure that may be
taken pursuant to Sec. 766.25 of this subchapter. A denial order may
suspend or revoke any or all outstanding licenses issued under the EAR
to a person named in the denial order, 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 denial order, used either as a
sanction for a violation, as a temporary denial order, or as an order
issued pursuant to section 11(h) of the EAA and Sec. 766.25 of this
subchapter, is set forth in Supplement No. 1 to this part, and this
section is to be construed as authorizing an order of such breadth. A
non-standard denial order, narrower in scope, may be issued in a
specific case. Authorization for actions prohibited by a denial order
may be given by the Office of Exporter Services (OExS), in consultation
with the Office of Export Enforcement (OEE), on application filed
either 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 attorney,
accountant, consultant, freight forwarder, or in any other
representative capacity with regard to any license application or other
matter before BXA may be excluded from any or all such activities
before BXA.
(b) Criminal. Conduct which constitutes a violation of the EAA, the
EAR, or any order, license or authorization issued thereunder, or which
occurs in connection with such a violation, may also be subject to
criminal sanctions under one or more laws of the United States. Either
administrative sanctions, criminal sanctions, or both, may be imposed
for the same conduct.1
\1\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.
---------------------------------------------------------------------------
(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 by imprisonment for not
more than five years, or both.2
\2\18 U.S.C. 3571, a broad criminal code provision, 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 $250,000 for an individual, or an amount not more than
$500,000 for an organization.
---------------------------------------------------------------------------
(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 per
violation 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 per violation 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 [[Page 25394]] 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 per violation 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 per violation 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 thereunder), be
subject to the penalties set forth in paragraph (b)(2) 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), 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), such person shall be subject
to the penalties set forth in paragraph (b)(2) of this section.
(3) Other criminal sanctions. Conduct which constitutes a violation
of the EAA, the EAR, or any order, license or authorization issued
thereunder, or which occurs in connection with such a violation, may
also be prosecuted under 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. In addition to the administrative and criminal
sanctions available under the EAA and the EAR, conduct that violates
the EAA, the EAR, or any order, license or authorization issued
thereunder, as well as conduct specifically identified in the EAA, may
be subject to statutory or other sanctions or protective measures.
These may 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 do not involve civil or
criminal penalties, but rather impose restrictions on imports and
procurement under EAA section 11A (multilateral export control
violations) and EAA section 11C (chemical and biological weapons
proliferation), and restrict the issuance of export licenses under EAA
section 11B (missile proliferation violations) and the Iran-Iraq Arms
Non-Proliferation Act of 1992. If the conduct for which such statutory
sanctions are imposed also constitutes a violation of the EAR, it may
be subject to administrative and criminal sanctions set forth in
Sec. 764.3(a) and (b) of this part.
(2) Other actions. (i) Seizure and forfeiture. Items which 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) Temporary denial orders. BXA may obtain a temporary denial
order on an ex parte basis when it believes such an order is necessary
to prevent the occurrence of an imminent export violation. (15 CFR
766.24; EAA section 13(d)).
(iii) Denial based on criminal conviction. BXA may deny the export
privileges for a period of up to ten years of any person who has been
convicted criminally of violations of certain statutes such as the EAA,
the Arms Export Control Act, and the International Emergency Economic
Powers Act, Sections 793, 794 or 798 of Title 18 of the United States
Code and Section 783 of Title 50 of the United States Code. (EAA
section 11(h); 15 CFR 766.25).
(iv) Cross-debarment. (A) The Department of State may deny licenses
or approvals for defense articles and defense services controlled under
the Arms Export Control Act to persons for a variety of reasons,
including indictments and/or convictions for specified criminal
offenses, including violations of the EAA. This section does not
provide an exhaustive list of other acts whose violation may lead to
denial of licenses or approvals by the Department of State. (22 CFR
126.7(a)).
(B) The Department of State may deny licenses or approvals for
defense articles and defense services controlled under the Arms Export
Control Act to persons denied export privileges by other agencies, such
as BXA. (22 CFR 127.11(a)).
(C) 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. (48 CFR 9.407-2(b)).
Sec. 764.4 Reporting of violations.
(a) Where to report. If a person, or Federal, state, or local
agency, 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, Room H-4520, 14th Street and Constitution
Avenue, N.W., Washington, D.C. 20230, Tel: (202) 482-1208, Facsimile:
(202) 482-0964.
or, for violations of part 760 of this subchapter:
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 export licenses or
unlicensed exports to the detriment of national security, foreign
policy, proliferation or short supply interests of the United States.
(c) Reporting requirement distinguished. The reporting provisions
set forth 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 the disclosure of
information to OEE by persons who believe that they may have violated
the export control provisions of the EAA, 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 of either section 8 of the EAA or of 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 this subchapter concerning
violations of the export control provisions of the EAA and the EAR.
[[Page 25395]]
(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. Moreover,
voluntary self-disclosure does not prevent transactions from being
referred to the Justice Department for criminal prosecution. In such a
case, OEE would notify the Justice Department of the voluntary self-
disclosure, but the Justice Department is not required to give that
fact any weight.
(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 to the Office of Export Enforcement
in connection with a voluntary self-disclosure.
(1) General. Any person wanting to disclose information that
constitutes a voluntary self-disclosure should, in the manner outlined
in this paragraph (c), 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 set forth 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.
(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 export 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 locations listed in Sec. 764.5(c)(7) of this part.
(iii) The initial notification should describe the general nature
and extent of the violations. If the person making the disclosure
subsequently 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.
(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 the person making the disclosure undertakes a review of more limited
scope than that recommended, he risks 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 an unlicensed
shipment, or dealing with a party denied U.S. 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) Export license numbers;
(v) Commodity classification numbers, product descriptions and
quantities, and value in U.S. dollars of the commodities or technical
data involved; and
(vi) A description of any mitigating circumstances.
(4) Supporting documentation. (i) The narrative account should be
accompanied by copies of those 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 set forth in part 762 of this
subchapter.
(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, Ben Franklin Station, 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, [[Page 25396]] New Boston Federal Building, 10 Causeway
Street, Room 350, Boston, Massachusetts 02222, Tel: (617) 565-6030
Special Agent in Charge, Chicago Field Office, Office of Export
Enforcement, 2400 East Devon, Suite 300, Des Plaines, Illinois 60018,
Tel: (312) 353-6640
Special Agent in Charge, Dallas Field Office, Office of Export
Enforcement, 525 Griffin Street, Room 622, Dallas, Texas 75202, Tel:
(214) 767-9294
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
Special Agent in Charge, Miami Field Office, Office of Export
Enforcement, 200 East Las Olas Blvd., Suite 1260, Fort Lauderdale,
Florida 33301, Tel: (305) 356-7540
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
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
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
(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 or firm 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
this subchapter and attempt to settle the matter;
(4) Issue a charging letter pursuant to Sec. 766.3 of this
subchapter if a settlement is not reached; and/or
(5) Refer the matter to the United States Department of Justice for
criminal prosecution.
(e) Criteria. For purposes of determining what administrative
action to take and what sanctions, if any, to 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
sanction 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 or firm 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;
(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 or firm 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 or
reason to know that a violation of the EAA or the EAR has occurred has
violated Sec. 764.2(e) of this part of the EAR. Any person who has made
a voluntary self-disclosure has reason to believe 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 set forth in Sec. 764.2(e) of this part
which would otherwise be prohibited. If the request is granted by
Export Administration (EA), in consultation with Export Enforcement
(EE), 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 is he relieved from the obligation to obtain
any required reexport authorizations.
(2) Reexport authorization for 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 this subchapter. If the
applicant for reexport authorization knows or has reason to know 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.
Supplement No. 1 To Part 764--Standard Terms Of Orders Denying Export
Privileges
Orders denying export privileges may be ``standard'' or ``non-
standard.'' This Supplement sets forth the terms of the standard order
denying export privileges. All orders denying export privileges are
published in the Federal Register. The failure by any person to comply
with any order denying export privileges is a violation of the Export
Administration Regulation (EAR). (See General Prohibition Four at
Sec. 734.2(b)(4) of this subchapter; 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 ``Term 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 order that
denies export privileges, including any non-standard denial order.
Denial orders issued prior to [THE EFFECTIVE DATE OF THE FINAL
RULE] are to be construed, insofar as possible, as having the same
scope and effect as this standard denial order.
The introduction to each order imposing a denial of export
privileges 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, section
11(h) of the EAA, or temporary denial order request; and (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.
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,
[[Page 25397]] technology or software (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:1
\1\But see Sec. 764.3(a)(2) which permits BXA, by request, to
authorize certain actions prohibited by a denial order.
---------------------------------------------------------------------------
A. Export or reexport to or on behalf of the denied person any item
subject to the EAR;
B. Take any action that facilitates the acquisition or attempted
acquisition by a denied person of the ownership, possession, or control
of any item subject to the EAR that has been or will be exported from
the United States, including financing or other support activities
related to a transaction whereby a denied person acquires or attempts
to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition
or attempted acquisition from the denied person of any item subject to
the EAR that has been exported from the United States;
D. Obtain from the denied person in the United States any item
subject to the EAR with knowledge or reason to know that the item will
be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR
that has been or will be exported from the United States and which is
owned, possessed or controlled by a denied person, or service any item,
of whatever origin, that is owned, possessed or controlled by a denied
person if such service involves the use of any item subject to the EAR
that has been or will be exported from the United States. For purposes
of this paragraph, servicing means installation, maintenance, repair,
modification or testing.
THIRD, that after notice and opportunity for comment as provided in
Sec. 766.23 of the EAR, any person, firm, corporation, or business
organization hereafter 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 an 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 here 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 [THE EFFECTIVE DATE OF THE
FINAL RULE] shall be identified in Part A as being standard or non-
standard, and denial orders issued prior to [THE EFFECTIVE DATE OF THE
FINAL RULE] 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 [THE EFFECTIVE DATE OF THE FINAL RULE] 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 FINAL RULE] 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 the
only official notice to the public, and the Federal Register is the
only source that can be relied on to provide current and accurate
information with respect to denied persons.
(d) Updates and availability. As a convenience for the public,
issuance of denial orders is announced in Export Administration
Bulletins, as well as in printed Denied Persons List updates. The
printed version of the Denied Persons List is revised and updated by
BXA semi-annually, adding new or amended orders and deleting orders
which have expired. Between the semi-annual revisions of the Denied
Persons List, additions and changes are published in Export
Administration Bulletins. The Denied Persons List does not appear in
the CFR, but you may contact the Office of Exporter Services to request
a copy:
Office of Exporter Services, P.O. Box 273, Washington, DC 20044
or
U.S. Department of Commerce, Bureau of Export Administration, Room
2705, 14th Street & Constitution Avenue, NW., Washington, DC 20230,
Tel: (202) 482-0074
The Denied Persons List is also available electronically on the
National Trade Data Base, which is updated only as frequently as the
printed version of the Denied Persons List.
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. [[Page 25398]]
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: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 766.1 Scope.
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
this subchapter define those actions that constitute violations, and
part 764 describes the sanctions that apply. In addition, 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. Finally, this part 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 regulations in this subchapter, 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 to 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
decide appeals from the imposition of temporary denial orders.
Assistant Secretary. The Assistant Secretary for Export
Enforcement, Bureau of Export Administration.
Bureau of Export Administration (BXA). Bureau of Export
Administration, United States 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.
EAR. The Export Administration Regulations (15 CFR parts 730
through 774), including the regulations concerning Restrictive Trade
Practices or Boycotts (15 CFR part 760).
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, and 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 section 8 of the EAA, and
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 section 8
of the EAA, and 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 in 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
Enforcement1 (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
this subchapter. The charging letter will inform the respondent that
failure to answer 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.
---------------------------------------------------------------------------
(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 his 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. [[Page 25399]]
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. 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 delivered or mailed 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, or by express or equivalent parcel delivery service, 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 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 shall be deemed to constitute a waiver of the
respondent's right to appear and contest the allegations in the
charging letter and to authorize the administrative law judge, on BXA's
motion and without further notice to the respondent, to find the facts
to be as alleged in the charging letter and to enter a recommended
decision containing findings of fact and appropriate conclusions of law
and a proposed order imposing appropriate sanctions. The recommended
decision and proposed order shall be reviewed by the Under Secretary in
accordance with the procedures set forth in 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 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 [[Page 25400]] 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
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 further 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 he
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
he 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 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 or business confidentiality 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 his 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
national security or confidential business 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 his 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 him to achieve the
purposes of such a conference.
(d) For all conference proceedings, the administrative law judge
will prepare a summary of any actions agreed on or taken at the
conference. 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. [[Page 25401]]
(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 he 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
materially advance 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 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 his/her 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 insofar as the default procedures
of Sec. 766.7 of this part may be applicable, 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 him/her 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 section 8 of the EAA, 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 this subchapter. 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 section 8 of the EAA, 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 this subchapter, 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 discretion may allow. A copy of any order
modifying or revoking the [[Page 25402]] 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 section 8 of the EAA 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
such event, a proposed charging letter will be prepared, and a
settlement proposal consisting of a settlement agreement and order
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
administrative law 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 decision in accordance with
Sec. 766.21 or Sec. 766.22 of this part, as appropriate.
(c) If the respondent neither admits nor denies BXA's allegations
of violation, the order disposing of a case by settlement shall not
contain a finding of violation.
(d) 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.
(e) 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.
(f) 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 Sec. 766.20(a)
and (b) of this part, 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. [[Page 25403]]
(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 brought under
section 8 of the EAA, 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 Sec. 766.20(b) of this part 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 brought under the EAA,
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 Sec. 766.20(b) of this part
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
section 8 of the EAA, a party may appeal to the Under Secretary from an
order disposing of a proceeding, denying a petition to set aside a
default or a petition for reopening, or from refusal to approve a
settlement proposal 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 of 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/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 section 8 of the EAA, the administrative law judge shall
immediately refer the recommended decision and proposed 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 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 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 in which to submit
simultaneous responses. Parties thereafter shall have 8 days from
receipt of any response(s) in which to submit replies. Any response or
reply must be received within the times specified by the Under
Secretary.
(c) Final decision. Within 30 days after receipt of the recommended
decision, the Under Secretary shall issue a written order affirming,
modifying or vacating the recommended decision of the administrative
law judge. If he/she vacates the recommended decision, 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. 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 related services. 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. The procedures for making orders applicable to
related persons are as follows:
(1) If, at the time an order is issued, BXA has reason to believe
that a person is related to the respondent, BXA will name that related
person in the order; and
(2) If, subsequent to the time an order is issued, BXA has reason
to believe that a person is related to the respondent, BXA shall,
through the Office of Chief Counsel for Export Administration, give
that person notice and an opportunity to comment why the order should
not be made applicable to that person. The Assistant Secretary may,
thereafter, issue an order naming that person as related to the
respondent.
(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 issue to be raised and ruled on in any such appeal is whether the
person so named is related to the respondent. The recommended decision
and proposed 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. [[Page 25404]]
Sec. 766.24 Temporary denials.
(a) General. The procedures in Sec. 766.24 of this part 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 paragraph (b) of
this section, of the EAA, the EAR, or any order, license or
authorization issued thereunder. The temporary denial order will deny
any or all of the export privileges specified in part 764 of this
subchapter to any person named in the order.
(b) Issuance. (1) The Assistant Secretary may issue an order
temporarily denying to a party any or all of the export privileges
specified in part 764 of this subchapter 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 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. In support of its position concerning 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.
(c) Related persons. In order to prevent evasion or circumvention
of the temporary denial order, the order or any renewal thereof may
name and deny export privileges to, in addition to any person
designated as a respondent, any other person who is then related to the
respondent by ownership, control, position of responsibility,
affiliation, or other connection in the conduct of trade or business.
BXA may seek to add to a temporary denial order, at a time other than
initial issuance or renewal, any person who BXA then has reason to
believe is related to a respondent by following the procedures in
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 in this section.
(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. 766.24(e) 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. Grounds for an appeal must be specified.
(i) A respondent may appeal to the administrative law judge from an
order issuing or renewing a temporary denial order on the ground that a
finding of an imminent violation is unsupported.
(ii) Any related person may appeal any finding that he/she is
related to a respondent, but may not appeal the underlying issuance or
renewal of the temporary denial order.
(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
[[Page 25405]] recommended decision to the Under Secretary, and serve
copies on the parties, stating 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
Sec. 766.24(g) of this part.
(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. 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 export license, including any
license exceptions, 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
licenses, including any license exception, under this section shall not
exceed 10 years.
(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. 734.2(b)(4) (General Prohibition 4--
Engage in actions prohibited by a denial order) and Sec. 764.2(k) of
this subchapter.
(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 in Supplement No. 2 to part 764 of this subchapter, 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 this subchapter.
(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, through the Office of Chief Counsel for Export
Administration, notify any person related through affiliation,
ownership, control, or position of responsibility to any person denied
export privileges under paragraph (a) of this section, of his/her
intent to deny that person permission to apply for or use any export
license, including any license exceptions. Such person so notified may
request a hearing by filing a request for a hearing with the Office of
the Administrative Law Judge, Room H-6716, 14th Street and Constitution
Avenue, N.W., Washington, D.C. 20230, and by serving a copy of the
request for a hearing on the Office of Chief Counsel for Export
Administration, Room H-3839, 14th Street and Constitution Avenue, N.W.,
Washington, D.C. 20230. The sole issue to be raised and ruled on under
this paragraph is whether the person notified is, in fact, related to
any person denied export privileges under paragraph (a) of this
section, and not the scope or duration of the underlying denial. The
procedures set forth in this part will apply to any hearing requested
under this paragraph.
PART 768--FOREIGN AVAILABILITY DETERMINATION PROCEDURES AND
CRITERIA
Sec.
768.1 Introduction.
768.2 Foreign availability described.
768.3 Foreign availability assessment.
768.4 Initiation of an assessment.
768.5 Contents of foreign availability submissions and Technical
Advisory Committee certifications.
768.6 Criteria.
768.7 Procedures.
768.8 Eligibility of expedited licensing procedures for non-
controlled countries.
768.9 Appeals of negative foreign availability determinations.
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--[Reserved]
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C. 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 768.1 Introduction.
(a) Authority. Pursuant to sections 5(f) and 5(h) of the Export
Administration Act of 1979, as amended (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 [[Page 25406]] 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.
Applicant. Any person or firm as defined in part 772 of this
subchapter.
Assessment. An evidentiary analysis that BXA conducts concerning
the foreign availability of a given item in light of 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 that 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 applicant who makes a foreign availability
submission, excluding TACs.
Comparable quality. An item is of comparable quality to an item
controlled under the regulations in this subchapter if it possesses the
characteristics specified in the Commerce Control List 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 commodity.
Controlled countries. Albania, Armenia, Azerbaijan, Belarus,
Bulgaria, Cambodia, Cuba, Estonia, Georgia, Kazakhstan, Kyrgystan,
Laos, Latvia, Lithuania, Moldova, Mongolia, North Korea, Russia,
Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam and the People's
Republic of China.
Decontrol. Removal of license requirements under the Export
Administration Regulations (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 the
Department receives a foreign availability submission or a TAC
certification, or on the Secretary's own initiative.
Denied license assessment. A foreign availability assessment
conducted as a result of an applicant's allegation of foreign
availability for an item (or items) for which the Department of
Commerce has denied or has issued a letter of intent to deny a license.
If the Secretary finds foreign availability, the Department's approval
of a license will be limited to the items, countries, and quantities in
the application.
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, technology, or software.
Item eligible for non-controlled country expedited licensing
procedures. An item is eligible for expedited licensing procedures if
it is described as such in Supplement No. 2 of part 768 (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 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 listed as a controlled
country.
Non-U.S. source/foreign source. A person located outside the
jurisdiction of the United States (as defined in part 772 of this
subchapter) that makes an item available.
Reasonable evidence. Relevant information that is credible.
Reliable evidence. Relevant information that is credible and
dependable.
Secretary. As used in this subchapter, the Secretary refers to the
Secretary of Commerce or 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 commodity.
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 with respect to a particular
country or countries. 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 Export Administration Act on
export control matters related to specific areas of controlled goods
and technology.
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 [[Page 25407]] denying
a specific license would not restrict the availability of goods or
technology that would make a significant contribution to the military
potential of the controlled country or combination of countries that
would prove 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: 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 the Bureau of Export
Administration (BXA) conducts to assess the foreign availability of a
given item under the assessment criteria. 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 or approve the license in question, 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
and 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 license applicant whose license
the Department of Commerce has denied, or on 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 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 trigger 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 with respect to a particular country or countries. 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 making 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 are to be submitted to: Department of Commerce,
Bureau of Export Administration, 14th and Pennsylvania Avenue, NW, Room
3877, Washington, DC 20230.
Sec. 768.5 Contents of foreign availability submissions and Technical
Advisory Committee certifications.
(a) All foreign availability submissions must contain 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: foreign manufacturers' catalogs,
brochures, operation or maintenance manuals; articles from reputable
trade and technical publications; photographs; depositions based on
eyewitness accounts; and other credible evidence. Examples of
supporting evidence are provided in Supplement No. 1 to part 768.
(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 initiated 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 delineated in Sec. 768.6 of this part
and the examples of evidence set forth in Supplement No. 1 to part 768
when assembling supporting evidence for inclusion in the FAS or TAC
certification.
Sec. 768.6 Criteria.
(a) Introduction. BXA evaluates the evidence contained in a FAS or
TAC certification and all other evidence gathered in the assessment
process in light of certain criteria that must be met before BXA can
recommend a positive determination to the Secretary. In order
[[Page 25408]] to initiate an assessment, each FAS and TAC
certification should address each of these criteria. The criteria are
statutorily prescribed and are:
(1) Available-in-fact;
(2) Non-U.S. source;
(3) Sufficient quantity; and
(4) Comparable quality.
(b) Related definition. The criteria are defined in Sec. 768.1(d)
of this part.
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) The Bureau of Export Administration 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 to BXA all relevant information that it has
concerning the item. BXA will invite interested departments and
agencies to participate in the assessment process (See paragraph (e) of
this section for details).
(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 set out in
Sec. 768.5(b) and (c) of this part. As soon as Commerce 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 conducts its analysis by evaluating whether the
reasonable and reliable evidence that is relevant to each of the
foreign availability criteria provides a sufficient basis for a
recommendation for 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, recommends to the
Secretary of Commerce that the Secretary make a determination either
that there is or that there is not foreign availability, whichever the
evidence supports. BXA's assessment upon which BXA based its
recommendation accompanies 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 export
control, or denial of the license application in question 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 goods and technology which would make a
significant contribution to the military potential of any country or
combination of countries which would prove detrimental to the national
security of the United States.
(3) The Secretary makes the determination of foreign availability
on the basis of the BXA assessment and recommendation; the Secretary's
determination takes 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.
(4) For all decontrol and denied license assessments (pursuant to
section 5(f)(3) of the EAA) initiated by a FAS, the Secretary makes a
determination within 4 months of the initiation of the assessment and
so notifies the claimant. The Secretary submits positive determinations
for review to appropriate departments and agencies.
(5) The deadline for determinations based on self-initiated and
TAC-initiated assessments are different than the deadlines for
claimant-initiated assessments (see paragraphs (f)(2) and (f)(3) of
this section).
(e) Interagency review. Commerce notifies all appropriate U.S.
agencies and Departments upon the initiation of the assessment and
invites them to participate in the assessment process. Commerce
provides 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, Commerce provides 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, Commerce provides 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
informs the claimant in writing and submits for publication in the
Federal Register a notice to the effect 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
COCOM Successor Regime, the U.S. Government will submit the proposed
decontrol or approval of the license for COCOM Successor Regime review
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 COCOM Successor Regime review process.); or
(ii) Foreign availability does not exist.
(2) For all TAC certification assessments, the Secretary makes a
foreign availability determination within 90 days following initiation
of the assessment. BXA prepares and submits 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 initiated on the
Secretary's own initiative or for the resulting determination. However,
the Department will make every effort to complete such assessments and
determinations promptly.
(g) Foreign availability to controlled countries. When the
Secretary [[Page 25409]] determines that an item controlled for
national security reasons is available to a controlled country and the
President does not issue an NSO, BXA submits the determination to the
Department of State, along with a draft proposal for the multilateral
decontrol of the item or for COCOM Successor Regime approval of the
license. The Department of State submits the proposal or the license to
the COCOM Successor Regime review process. The COCOM Successor Regime
has 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 to which 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 pursuant to
section 5(f) of the EAA, the Secretary of any agency may recommend that
the President exercise the authority under the Act to retain the
controls or deny the license notwithstanding the finding of foreign
availability.
(4) For an NSO resulting from an assessment initiated pursuant to
section 5(h) of the EAA, the Secretary of Commerce may recommend that
the President exercise the authority under the Act to retain the
controls notwithstanding the finding of foreign availability.
(5) Under an NSO resulting from an assessment initiated pursuant to
section 5(f) of the EAA, the Committee on Banking, Housing, and Urban
Affairs of the Senate and the Committee on Foreign Affairs 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 pursuant to
section 5(f) of the EAA, the Bureau of Export Administration will
publish notices in the Federal Register of:
(i) The Secretary's determination of foreign availability;
(ii) The President's decision to exercise the National Security
Override;
(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, the Department of
Commerce will retain the control only to the extent that foreign
availability is eliminated. If foreign availability is not eliminated,
the Department of Commerce will decontrol the item by removing the
requirement for a license for the export of the item to the
destinations covered by the assessment. To the extent that the
negotiations are successful and the foreign availability is eliminated,
Commerce 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, the Office 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 the
Bureau of Export Administration will publish a Federal Register notice
of the determination.
Sec. 768.8 Eligibility for expedited licensing procedure 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, the 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 makes a determination of foreign availability on the basis
of the BXA evaluation and recommendation which takes into account the
evidence the Secretaries of Defense, State, and other interested
agencies provided to BXA and any other information that the Secretary
considers relevant. The Secretary of Commerce will provide all
interested agencies an opportunity to review and comment on the
evaluation.
(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 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.
They should be sent to: Department of Commerce, Bureau of Export
Administration, 14th Street and [[Page 25410]] 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 set forth in 15 CFR part 789. A
Presidential decision (NSO) to deny a license or continue controls
notwithstanding a determination of foreign availability shall not be
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 Department of Commerce has decontrolled for foreign
availability reasons.
Supplement No. 1 to Part 768--Evidence of Foreign Availability
Below is a list of examples of evidence that the Bureau of Export
Administration (BXA) has found 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 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 of
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 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 regulation of the source
country which shows 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, and 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 this subchapter.
(3) Sufficient quantity:
(i) Evidence that foreign sources have the item in serial
production;
(ii) Evidence that the item or its products 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;
[[Page 25411]]
(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), technical data or device; 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.
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
Sec. 770.1 Introduction.
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 this subchapter) 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) 2A01, 2A02, 2A03, 2A04, 2A05, 2A06 and
2A96 (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 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
2B01.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 2B01.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 2B01.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, [[Page 25412]] flame treatment, mangling,
crushing, cutting, or by any other method are ``scrap''.
(2) Cartridge and shell cases that have been sold by the armed
services as ``scrap'', whether or not they have been heated, flame-
treated, mangled, crushed, cut, or reduced to scrap by any other
method.
(3) Other commodities that may have been on the U.S. Munitions List
are ``scrap'', and therefore under the jurisdiction of the Department
of Commerce, if they have been rendered useless beyond the possibility
of restoration to their original identity only by means of mangling,
crushing, or cutting. When in doubt as to whether a commodity covered
by the Munitions List has been rendered useless, exporters should
consult the Office of Defense Trade Controls, U.S. Department of State,
Washington, D.C. 20520, or the Exporter Counseling Division, Office of
Exporter Services, Room 1099A, U.S. Department of Commerce, Washington,
D.C. 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.
(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 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 1C60C. 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 fibluoride
Ammonium hydrogen difluoride
Ammonium monohydrogen difluoride
(2) (C.A.S. #7784-34-1) Arsenic trichloride
Arsenic (III) chloride
Arsenous chloride
Fuming liquid arsenic
Trichloroarsine [[Page 25413]]
(3) (C.A.S. #76-93-7) Benzilic acid
.alpha.,.alpha.-Diphenyl-.alpha.-hydroxyacetic acid
Diphenylgloycolic 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
O,O-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-diisoproplethanamine
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
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 [[Page 25414]]
(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
entachlorophosphorus
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
(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, 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 Sec. 732.7 of this subchapter, and installation,
operation, maintenance, and repair technology and software eligible for
License Exception 14 described in Sec. 740.16 of this subchapter.
(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 this subchapter.
(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 this subchapter.
(d) Certain License Exception. The following questions and answers
are [[Page 25415]] 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 14 (OTS) described in Sec. 740.16 of
this subchapter, 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 License
Exception 14 (OTS) for operating technology and software, 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 or License Exception. 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 14 (OTS) for operating technology and software, 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 14 (OTS), 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.
PART 772--DEFINITIONS OF TERMS
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
The following are definitions of terms as used in the Export
Administration Regulations:
Advisory Committee on Export Policy (ACEP). The ACEP voting members
include the Assistant Secretary of Commerce for Export Administration,
and the Assistant Secretary-level representatives from the Departments
of State, Defense, Energy, and the Arms Control and Disarmament Agency.
The Director of the Joint Chiefs of Staff for International Negotiation
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. No alternate ACEP
members may be designated, but the appropriate acting assistant head of
any agency or department may serve in lieu of the assistant head of the
concerned agency or department. The ACEP may invite the assistant heads
of other United States 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.
Airline. Any person or firm 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.
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(b)(1)
of this subchapter.)
Australia Group. The members belonging to this group have agreed to
adopt controls on dual-use chemicals, i.e., weapons precursors, and
equipment, and biological microorganisms and related equipment in order
to prevent the proliferation of chemical and biological weapons.
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 Group. The Commerce Control List is divided into 10 categories.
Each category is subdivided into the same five groups, designated by
letters A through E. See Sec. 738.2(b) of this subchapter for a listing
of these groups.
CTP. See Composite Theoretical Performance.
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:
(1) A natural person who is a citizen of Canada; or
(2) A partnership of which each member is such an individual; or
(3) 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.
Category. The Commerce Control List is divided into 10 categories.
A list of these categories can be found in Sec. 738.2(a) of this
subchapter.
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. A successor regime is currently in the process of being
created. 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 this subchapter are also subject to the EAR.
Commodity. Any article, material, or supply except technology and
software.
Composite Theoretical Performance (CTP). A measure of computational
performance given in millions of theoretical operations per second
(MTOPS). 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. [[Page 25416]]
Controlled country. Country Group D:1. (See Supplement No. 1 to
part 740 of this subchapter.)
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 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
this subchapter, 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).
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 this subchapter for a
list of countries in each Country Group.)
Customs officer. The Customs officers in the U.S. Customs Service
and postmasters unless the context indicates otherwise.
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 this subchapter, of specific persons or firms that have been
denied export privileges, in whole or in part. The full text of each
order denying export privileges is published in full in the Federal
Register.
Dual use. Items that have both military and commercial applications
and items with purely commercial uses.
Export Administration Review Board (EARB). The EARB was established
by Executive Order No. 11533 of June 4, 1970. 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 United
States Government agencies or departments (other than those identified
above) 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. The term export means an actual shipment, transfer, or
transmission of items out of the United States; a transfer of items in
the United States to an embassy or affiliate of a controlled country;
or a transfer to any person of items either within the United States or
outside the United States with the knowledge or intent that the items
will be shipped, transferred, or transmitted to an unauthorized
recipient. (See Sec. 732.3(e) of this subchapter.)
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 Control Classification Number (ECCN). The numbers used in
part 774 of this subchapter and throughout the EAR. The Export Control
Classification Number consists of a set of digits and a letter.
Reference Sec. 738.2(c) of this subchapter 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 this
subchapter; 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 this
subchapter; 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
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.
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.
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.
Foreign policy control. A control imposed under the EAR for any and
all of the following reasons: chemical and biological weapons, nuclear
non-proliferation, 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 actual services which 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- [[Page 25417]] 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.
General prohibitions. The 10 prohibitions found in part 734 of this
subchapter that prohibit certain exports, reexports, and other conduct,
subject to the EAR.
Hold Without Action (HWA). License applications may be held without
action only in the limited circumstances described in Sec. 750.4(c) of
this subchapter.
Intent to Deny (ITD) letter. A letter informing: 1) the applicant
of the reason for BXA's decision to deny a license application; and 2)
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.
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.
Item. Any commodity, technology, or software.
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.''
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.''
License alternatives. A license alternative is either the Special
Comprehensive License described in part 752 of this subchapter, or a
License Exception described in part 740 of this subchapter.
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 this
subchapter 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 this subchapter for a complete definition and
identification of a licensee's responsibilities.
MTCR. See Missile Technology Control Regime.
MTEC. See Missile Technology Export Control Group.
Missile Technology Control Regime (MTCR). The United States along
with 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 reasons. The MTEC also reviews
applications involving items not controlled for Missile Technology
reasons, but destined for a country and/or end use/end user of concern.
``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 the items exported are
listed on the CCL and that no license is required.
NOL. NOL (``not on list'') is a symbol entered on the Shipper's
Export Declaration, certifying that items exported are not listed on
the CCL, but still subject to the EAR, and 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.
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 dual-use items with nuclear
applications.
Office of Foreign Assets Control (FAC) or (OFAC). The agency at the
Department of the Treasury responsible for blocking assets of
sanctioned foreign entities, 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. (31 CFR parts 500 through 590.)
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
for Nonproliferation Policy. The Director of the Joint Chiefs of Staff
for International Negotiations 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 United States 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.
Person. A natural person, including a citizen or national of the
United States or of any foreign country, or any firm.
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.
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.
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 this subchapter).
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.
RWA. See Return without Action.
Reasons for Control. There are 10 possible reasons why an item may
be controlled. Items controlled within a particular ECCN may be
controlled for [[Page 25418]] more than one reason. Reasons for Control
are: Anti-Terrorism (AT), Chemical & Biological Weapons (CB), Crime
Control (CC), Missile Technology (MT), National Security (NS), Nuclear
Nonproliferation (NP), Regional Stability (RS), Supercomputers (SC),
Short Supply (SS), and United Nations sanctions (UN).
Reexport. The term ``reexport'' includes the transfer,
transshipment, or diversion of items from one foreign country to
another foreign country. 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. An authorization by the Bureau of Export
Administration revising the information, conditions, or riders stated
on a license issued by BXA.
Return Without Action (RWA). An application may be RWA'd for one of
the following reasons: (1) the applicant has requested the application
be returned, (2) if a License Exception applies, (3) the items are not
under Department of Commerce jurisdiction, (4) required documentation
has not been submitted with the application, or (5) the applicant can
not be reached after several attempts to request additional information
necessary for processing of the application.
SNEC. See Subgroup on Nuclear Export Coordination.
Schedule B numbers. The commodity numbers appearing in the current
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 this subchapter for information on use
of Schedule B numbers.)
Shield. Chaired by the Department of State, the Shield primarily
reviews applications involving items controlled for Chemical and
Biological Weapons reasons. The Shield also reviews applications
involving items not controlled for Chemical and Biological Weapons
reasons, but destined for a country and/or end use/end-user of concern.
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.
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).
Subgroup on Nuclear Export Coordination (SNEC). Chaired by the
Department of State, the SNEC primarily reviews applications involving
items controlled for Nuclear Non-proliferation reasons. The SNEC also
reviews applications involving items not controlled for Nuclear Non-
proliferation reasons, but destined for a country and/or end use/end-
user of concern.
Subject to the EAR. A term used in the EAR to describe those
commodities, technology, software and activities over which the Bureau
of Export Administration (BXA) exercises regulatory jurisdiction under
the EAR (See Sec. 732.2(a) of this subchapter for a complete
definition).
Supercomputer. A ``supercomputer'' is any computer with a Composite
Theoretical Performance (CTP) equal to or exceeding 1,500 Mtops
(million theoretical operations per second). 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.
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.
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 this subchapter.)
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:
(1) An individual who is a citizen of the United States or one of
its possessions; or
(2) A partnership of which each member is such an individual; or
(3) 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.
Utilization facility. 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. Utilization facility does
not include the steam turbine generator portion of a nuclear power
plant.
You. Any person, including a natural person or a firm.
PARTS 771, 773, 775-779, 785-791--[REMOVED AND RESERVED]
5. Parts 771, 773, 775 through 779 and 785 through 791 are removed
and reserved.
PART 799--[REDESIGNATED AS PART 774]
6. Part 799 is redesignated as part 774.
7. The authority citation for newly designated part 774 is revised
to read as follows:
Authority: 18 U.S.C. 2510 et seq.; 30 U.S.C. 185; 42 U.S.C.
6212; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 50 U.S.C. 1710 et seq.; 22
U.S.C. 3201 et seq.; 42 U.S.C 2139(a); 43 U.S.C. 1354; 50 U.S.C.
2401 et seq.; 46 U.S.C. 466(c); E.O. 12924.
8. Newly designated Sec. 774.1 is revised to read as follows:
Sec. 774.1 Introduction.
The Bureau of Export Administration (BXA) maintains the Commerce
Control List (CCL), that includes all items (commodities, software, and
technology) subject to the licensing authority of [[Page 25419]] 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. The CCL is
contained in Supplement No. 1 to part 774. Supplement No. 2 contains
the General Technology and Software Notes relevant to entries contained
in the CCL, and Supplement No. 3 contains definitions to terms used in
the CCL.
9. Supplement No. 1 to newly designated part 774 is amended by
revising the Requirements section of each applicable Export Control
Classification Number (ECCN) to read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
Category 1--Materials
A. Equipment, Assemblies and Components
1A01 Components made from fluorinated compounds.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A02 Composite structures or laminates.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to composite structures that are specially designed for
missile applications (including specially designed subsystems and
components)--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: Yes, except MT
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A03 Manufactures of non-fluorinated polymeric substancescontrolled by
1C08.a in film, sheet, tape or ribbon form.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $200
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A22 Other composite structures of laminates usable in missile
systems.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A27 Maraging steels (steels generally characterized by high nickel,
very low carbon contect and the use of substitutional elements or
precipitates to produce age-hardening), other than those controlled by
ECCN 1A47, below, having an Ultimate Tensil Strength of 1.5 x
109 N/m2 (Pa) or greater measured at 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) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A44 Crucibles made of materials resistant to liquid actinide metals.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25420]]
1A45 Specialized packings for use in separating heavy water from
ordinary water that are made of phosphor bronze mesh or copper (both
chemically treated to improve wettability) and are designed for use in
vacuum distillation towers.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A46 Aluminum and titanium alloys in the form of tubes or solid forms
(including forgings) with an outside diameter of more than 75 mm (3
inches).
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A47 Maraging steel capable of an ultimate tensile strength of 2050
MPa (2.050 x 109 N/m2) (300,000 lbs./in2) 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) and Country Chart
NP applies to entire entry--NP Column 1
MT applies to maraging steels controlled by this entry that also meet
the specifications of 1A27--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes, except MT
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A48 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A50 Parts made of tungsten, tungsten carbide, or tungsten alloys
(greater than 90% tungsten) having a mass greater than 20 kilograms and
a hollow cylindrical symmetry (including cylinder segments) with an
inside diameter greater than 10 cm (4 in), but less than 30 cm (12 in),
except parts specially designed for use as weights or gamma-ray
collimators.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A84 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) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1A88 Bulletproof and bullet resistant vests.
License Requirements
Reason for Control: UN
Control(s) and Country Chart
UN applies to entire entry--UN Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25421]]
B. Test, Inspection and Production Equipment
1B01 Equipment for the production of fibers, prepregs, preforms or
composites controlled by 1A02 or 1C10, as follows, and specially
designed components and accessories therefor.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to entire entry EXCEPT 1B01.d.4--MT Column 1
NP applies to filament winding machines described in 1B01.a that are
capable of winding cylindrical rotors having a diameter between 75mm (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--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A for 1B01.a; $5000 for all other items
CSR: Yes, except MT and NP
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B02 Systems and components therefor specially designed for producing
metal alloys, metal alloy powder or alloyed materials controlled by
1C02.a.2, 1C02.b, or 1C02.c.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B03 Tools, dies, molds or fixtures, for superplastic forming or
diffusion bonding titanium or aluminum or their alloys, specially
designed for the manufacture of the following:
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B16 Plants for the production of uranium hexafluoride (UF6) and
specially designed or prepared equipment (including UF6
purification equipment), and specially designed parts and accessories
therefor.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to items that appear on International Atomic Energy List--NP
Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes, except Bulgaria, Romania, or Russia for NP only
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
1B17 Electrolytic cells for the production of fluorine with a
production capacity greater than 250 grams of fluorine per hour, and
specially designed parts and accessories therefor.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to items that appear on the International Atomic Energy
List--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes, except Bulgaria, Romania, or Russia for NP only
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B18 Commodities on the International Munitions List
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to equipment for the production of rocket propellants--MT
Column 1
RS applies to 1B18.a--RS Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000 for 1B18.a for Australia, Japan, New Zealand, and NATO
only; $5000 for 1B18.b
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25422]]
1B21 Other equipment for the production of fibers, prepregs, preforms
or composites.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B28 Other equipment for the production of propellants.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B30 Pyrolytic deposition and densification equipment.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B41 Filament winding machines not controlled by 1B01, controls, and
mandrels.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B42 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B50 Vacuum and controlled environment furnaces.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B51 Instruments designed for vacuum service that are capable of
measuring absolute or differential pressures to an accuracy of plus or
minus 1 torr in the pressure range of 0 to 100 torr absolute where all
whetted surfaces, including pressure sensing elements, are constructed
of or protected by corrosion-resistant materials such as nickel, nickel
alloys, phosphor bronze, stainless steel, aluminum, or aluminum alloys
and specially designed or modified component parts therefor.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B52 Water-hydrogen sulfide exchange tray columns constructed from
fine carbon steel (such as ASTM A516) with a diameter of 1.8 m (6 ft)
or greater and made to operate at a nominal pressure of 2 MPa (300 psi)
or greater.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1 [[Page 25423]]
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B53 Hydrogen-cryogenic distillation columns.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B54 Ammonia synthesis converters.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry AT--Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B58 Facilities or plants, and related equipment, for the production,
recovery, extraction, concentration, or handling of tritium.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B59 Pumps for circulating solutions of diluted or concentrated
potassium amide catalyst in liquid ammonia (KNH2/NH3).
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B70 Equipment that can be used in the production of chemical weapons
precursors and chemical warfare agents.
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 3
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1B71 Equipment that can be used in the production of biological
weapons.
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 3
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
1C01 Materials specially designed for use as absorbers of
electromagnetic waves, or intrinsically conductive polymers.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25424]]
1C02 Metal alloys, metal alloy powder or alloyed materials.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C03 Magnetic metals of all types and of whatever form, having the
following characteristics:
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C04 Uranium titanium alloys or tungsten alloys with a matrix based on
iron, nickel or copper, with all of the following characteristics:
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C05 Superconductive composite conductors in lengths exceeding 100 m
or with a mass exceeding 100 g.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C06 Fluids and lubricating materials.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C07 Ceramic base materials, non-composite ceramic materials, ceramic
matrix composite materials and precursor materials.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to items described in 1C07.d (dielectric constant less than
6 at frequencies from 100Hz to 10,000 Mhz) for use in missile radomes--
MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000, except N/A for 1C07.e
CSR: Yes, except 1C07.d
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C08 Non-fluorinated polymeric substances.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $200
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C09 Unprocessed fluorinated compounds.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1 [[Page 25425]]
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C10 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) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to 1C10.a (all aramid fibrous and filamentary materials
[FFM]), 1C10.b (all carbon FFM), and 1C10.c (all glass FFM)--NP Column
1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500, except N/A for NP items
CSR: N/A
GBS: N/A
NSG: Yes, except to Bulgaria, Romania, or Russia for NP only
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C18 Items on the International Munitions List.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: Yes for items listed in Advisory Note to 1C18
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C19 Items on the International Atomic Energy List (e.g., zirconium
metal, nickel powder and porous nickel metal, lithium, beryllium metal,
wet-proofed platinized catalysts, and hafnium).
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry except zirconium in the form of foil or
strip having a thickness not exceeding 0.10 mm (0.004 in) in shipments
of 200 kg or less--NS Column 1
NP applies to zirconium metal, alloys, or compounds in shipments of 5
kg or less--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes, except to Bulgaria, Romania, or Russia for NP only
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C21 Other materials for reduced observables such as radar
reflectivity, ultraviolet/infrared signatures and acoustic signatures
(i.e., stealth technology), for applications usable for missile systems
and subsystems.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C22 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 percent 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) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C27 Other ceramic or graphite materials usable in missile systems.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C31 Propellants, constituent chemicals, and polymeric substances for
propellants.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
[[Page 25426]]
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C49 Platinized catalysts not controlled by 1C19.e that are 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 heavy water production.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C50 Fibrous and filamentary materials not controlled by 1C10.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C51 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C52 High purity calcium 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C53 High purity magnesium 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C54 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
(37 GBq) per kilogram or greater, and equipment containing these
radionuclides.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C55 Helium isotopically enriched in the helium-3 isotope, in any
form, whether or not mixed with other materials, or contained in any
equipment or device, except products or devices containing less than 1
g of helium-3.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A [[Page 25427]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C56 Chlorine trifluoride (C1F3).
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C57 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C58 Radium-226.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C60 Precursor and intermediate chemicals used in the production of
chemical warfare agents.
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C61 Microorganisms and toxins.
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C80 Inorganic chemicals 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 this
subchapter. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
* * * * *
1C81 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 this
subchapter. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
* * * * *
1C82 Other petroleum products 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 this
subchapter. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
* * * * *
1C83 Natural gas liquids and other natural gas derivatives 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 this
subchapter. The [[Page 25428]] Commerce Country Chart is not designed
to determine licensing requirements for items controlled for SS
reasons.
List of Items Controlled
* * * * *
1C84 Manufactured gas and synthetic natural gas (except when
commingled with natural gas and thus subject to export authorization
from the Dept. of Energy) 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 this
subchapter. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
* * * * *
1C88 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 this
subchapter. The Commerce Country Chart is not designed to determine
licensing requirements for items controlled for SS reasons.
List of Items Controlled
* * * * *
1C92 Oil well perforators.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C93 Fibrous and filamentary materials, not controlled by 1C10 or
1C50, 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) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1C94 Fluorocarbon electronic cooling fluids.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
D. Software
1D01 Software specially designed or modified for the development,
production, or use of equipment controlled by 1B01, 1B02, 1B03, 1B16,
1B17, or 1B18.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software for the development, production, or use of
equipment controlled by 1B01 and 1B18.a for MT reasons--MT Column 1
NP applies to software for the development, production or use of
equipment controlled by 1B01 for NP reasons--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia, for NP only
CIV: Yes, except MT and NP
TSR: Yes, except MT and NP
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1D02 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) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software specially designed or modified for the
development of composites controlled by 1A, 1B or 1C entries for MT
reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: Yes, except MT
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1D23 Other software specially designed for the ``development'',
``production'', or ``use'' of items controlled by 1A, 1B, and 1C for
missile technology reasons.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A [[Page 25429]]
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1D41 Software, not controlled by 1D01, specially designed or modified
for the ``development'', ``production'', or ``use'' of filament winding
machines controlled by 1B41.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1D50 Specially designed software for computer control and monitoring
systems specially configured for vacuum and controlled atmosphere
metallurgical melting and casting furnaces controlled by 1B50.b.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1D60 Software for process control that is specifically configured to
control or initiate production of chemical precursors controlled by
ECCN 1C60.
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1D93 Software specially designed for the ``development'',
``production'', or ``use'' of fibrous and filamentary materials
controlled by 1C50.b or 1C93.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1D94 Software specially designed for the ``development'' or
``production'' of fluorocarbon electronic cooling fluids controlled by
1C94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
1E01 Technology according to the General Technology Note for the
development or production of equipment or materials controlled by
1A01.b, 1A01.c, 1A02, 1A03, 1B01, 1B02, 1B03, 1B18, 1C01, 1C02, 1C03,
1C04, 1C05, 1C06, 1C07, 1C08, 1C09, 1C10, or 1C18.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology for items controlled by 1A02 or 1B01 for MT
reasons--MT Column 1
NP applies to technology for the development or production of items
controlled by 1B01 and materials controlled by 1C10 for NP reasons--NP
Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia, for NP only
CIV: N/A
TSR: Yes, except MT and NP, and except Iran and Syria
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E02 Other technology.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except Iran and Syria
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25430]]
1E19 Technology according to the General Technology Note for the
``development'', ``production'', or ``use'' of equipment or materials
controlled by 1B16, 1B17, or 1C19.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to technology for the development, production or use of
plants controlled by 1B16, equipment controlled by 1B17, or materials
controlled by 1C19--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia for NP only
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E23 Other technology according to the General Technology Note for the
``development'', ``production'', or ``use'' of items controlled by
1A22, 1A27, 1B28, 1B30, 1C21, 1C22, 1C27, or 1C31.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E24 Technology (including processing conditions) and procedures for
the regulation of temperature, pressure 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) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E25 Technology for producing pyrolytically derived materials formed
on a mold, 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), including technology for the
composition of precursor gases, flow-rates, and process control
schedules and parameters.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E40 Technology for the use of filament winding machines controlled
by 1B01.a that are capable of winding cylindrical rotors having a
diameter between 3 inches and 16 inches and a length of 24 inches or
greater.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E41 Technology for the ``development'', ``production'', or ``use'' of
items controlled by 1A44, 1A45, 1A46, 1A47, 1A48, 1A50, 1B41, 1B42,
1B50, 1B51, 1B52, 1B53, 1B54, 1B58, 1B59, 1C49, 1C50, 1C51, 1C52, 1C53,
1C54, 1C55, 1C56, 1C57, or 1C58 or for the ``use'' of items controlled
by 1C10.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E60 Technology for the production and/or disposal of chemical
precursors described in ECCN 1C60, and technology as described in the
list below for facilities designed or intended to produce chemicals
described in ECCN 1C60.
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25431]]
1E61 Technology for the production and/or disposal of microbiological
items described in ECCN 1C61.
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E70 Technology for production of commodities described in ECCNs 1B70
and 1B71 (equipment that can be used in production of chemical warfare
agents or their precursors, or biological agents).
License Requirements
Reason for Control: CB, AT
Control(s) and Country Chart
CB applies to entire entry--CB Column 3
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
1E94 Technology for the development, production, or use of fibrous and
filamentary materials controlled by 1C93 or fluorocarbon electronic
cooling fluids controlled by 1C94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 2--Materials Processing
A. Equipment, Assemblies and Components
Note to Category 2A: Category 2A does not control balls with
tolerance specified by the manufacturer in accordance with ISO 3290
as grade 5 or worse.
2A01 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
national equivalents).
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A02 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
national equivalents).
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A03 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 national equivalents) and having either of the
following characteristics.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A04 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) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A05 Active magnetic bearing systems.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1 [[Page 25432]]
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A06 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) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A19 Commodities on the International Atomic Energy List (e.g., power
generating and/or propulsion equipment, neutron generator systems, and
valves for gaseous diffusion separation process).
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to 2A19.b & c--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes for 2A19.b and c, except to Bulgaria, Romania, or Russia
CIV: Yes, except NP (see Advisory Note to 2A19)
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A44 Specialized instruments for hydrodynamic experiments.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A48 Valves not controlled by 2A19.c that are 5 mm (0.2 in.) or
greater in diameter, 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, and specially
designed parts and accessories therefor.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A49 Generators and other equipment specially designed, prepared, or
intended for use with nuclear plants.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A50 Equipment related to nuclear material handling and processing and
to nuclear reactors.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A51 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A [[Page 25433]]
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A52 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
(0.76 x 10-4 mbar).
License Requirements
Reason for Control: NP, AT
Control(s) amd Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A53 Pumps designed to move molten metals by electromagnetic forces.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2A94 Portable electric generators and specially designed parts.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
2B01 Numerical control units, motion control boards, specially
designed for numerical control applications on machine tools, machine
tools, and specially designed components therefor.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes, except Bulgaria, Romania, or Russia
CIV: Yes, except NP (for items described in Advisory Note 2)
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B02 Non-numerically controlled machine tools for generating optical
quality surfaces.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B03 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) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes for 2B03.a
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B04 Hot isostatic presses, as follows, and specially designed dies,
molds, components, accessories and controls therefor.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
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 Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A [[Page 25434]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B05 Equipment specially designed for deposition, processing and in-
process control of inorganic overlays, coatings and surface
modification, as follows, for non-electronic substrates by processes
shown in the Table and associated Notes following 2E03.d and specially
designed automated handling, positioning, manipulation and control
components therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B06 Dimensional inspection or measuring systems or equipment.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to 2B06.a, b or c--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: Yes for 2B06.d
GBS: N/A
NSG: Yes for 2B06.a, b, and c, except to Bulgaria, Romania, or
Russia
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B07 Robots, and specially designed controllers and end-effectors
therefor.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to robots and NP Column 1 end-effectors that are controlled
by 2B07.b OR that are specially designed or rated as radiation hardened
to withstand greater than 5 x 10\4\ grays (Si) (5 x 10\6\ rad (Si))
without operational degradation, and to specially designed controllers
therefor--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000, except N/A for NP
CSR: Yes, except NP
GBS: N/A
NSG: Yes, except Bulgaria, Romania, or Russia, for NP only
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B08 Assemblies, units or inserts specially designed for machine
tools, or for equipment controlled by 2B06 or 2B07.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes, except Bulgaria, Romania, or Russia
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B09 Specially designed printed circuit boards with mounted components
and software therefor, 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 2B01, 2B02, 2B03, 2B04, 2B05, 2B06, 2B07,
or 2B08.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes, except Bulgaria, Romania, or Russia
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B18 Commodities on the International Munitions List.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to specialized machinery, 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--MT Column 1
RS applies to entire entry--RS Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A [[Page 25435]]
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B24 Isostatic presses not controlled by 2B04 and specially designed
dies and moulds, and controls therefor.
License Requirements
Reason for Control: MT, NP, AT
Control(s) and Country Chart
MT applies to entire entry--NS Column 1
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B41 Numerically controlled machine tools for vertical and/or boring
not controlled by ECCN 2B01.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B44 Isostatic presses, not controlled by 2B04 or 2B24, 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B50 Spin-forming and flow-forming machines and precision rotor-
forming mandrels, and specially designed components therefor.
License Requirements
Reason for Control: NP, MT, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
MT applies to 2B50.a except those that are not usable in the production
of propulsion components and equipment (e.g., motor cases) for missile
systems--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B51 Centrifuge rotor fabrication assembly, and straightening
equipment and bellows-forming mandrels and dies.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B53 Centrifugal balancing machines, fixed or portable, horizontal or
vertical.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B85 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) and Country Chart
UN applies to entire entry--UN Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A [[Page 25436]]
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B91 Numerical control units for machine tools and numerically
controlled machine tools, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B92 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) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B93 Gearmaking and/or finishing machinery not controlled by 2B03
capable of producing gears to a quality level of better than AGMA 11.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2B94 Robots not controlled by 2B07 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) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials--[Reserved]
D. Software
2D01 Software specially designed or modified for the development,
production or use of equipment controlled by 2A01, 2A02, 2A03, 2A04,
2A05, 2A06, 2B01, 2B02, 2B03, 2B04, 2B05, 2B06, 2B07, 2B08, or 2B09.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software specially designed or modified for the
development, production or use of items controlled by 2B04--MT Column 1
NP applies to software described in this entry for the development,
production or use of equipment controlled by 2B01, 2B04, and 2B06.a, .b
and .c (including software for the simultaneous measurements of wall
thickness and contour), 2B07, and 2B09 for NP reasons--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes for software for 2B01, 2B06.a, .b, .c, 2B07, and 2B09
except to Bulgaria, Romania, or Russia. Software (including
documentation) for numerical control units must be: in machine
executable form only; and limited to the minimum necessary for the use
(i.e., installation, operation, and maintenance) of the units.
CIV: N/A
TSR: Yes, except MT and NP
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D02 Specific software.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D18 Software for the development, production or use of equipment
controlled by 2B18.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software for the development, production or use of items
controlled by 2B18 for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except MT and Iran and Syria [[Page 25437]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D19 Software for the development, production or use of equipment
controlled by 2A19.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to software for the development, production or use of items
controlled by 2A19.b and .c--NP Column 1
AT applies to entire entry AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia for NP only
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D24 Software for the development, production or use of commodities
controlled by 2B24.
License Requirements
Reason for Control: MT, NP, AT
Control(s) and 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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D41 Software specially designed or modified for the development,
production or use of numerically controlled machine tools controlled by
ECCN 2B41.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry NP Column 1
AT applies to entire entry AT Column 1
License Alternatives
License Exceptions
NSG: Yes, provided that software (including documentation) for
``numerical control'' units is: exported in machine executable form
only; and limited to the minimum necessary for the use (i.e.,
installation, operation, and maintenance) of the units.
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D44 Software for the development, production or use of commodities
controlled by 2B44.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D49 Software specially designed or modified for the development,
production or use of equipment controlled by 2A49.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D50 Software specially designed or modified for the development,
production or use of equipment controlled by 2A50 or 2B50.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D53 Software specially designed or modified for the development,
production or use of centrifugal balancing machines controlled by 2B53.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25438]]
2D92 Software specially designed for the development or production of
portable electric generators controlled by 2A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D93 Software specially designed for the development or production of
manual dimensional inspection machines controlled by 2B92.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2D94 Software specially designed for the development, production, or
use of numerical control units and numerically controlled machine tools
controlled by 2B91, gear making and/or finishing machinery controlled
by 2B93, or robots controlled by 2B94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
2E01 Technology according to the General Technology Note for the
development of equipment or software controlled by 2A01, 2A02, 2A03,
2A04, 2A05, 2A06, 2B01, 2B02, 2B03, 2B04, 2B05, 2B06, 2B07, 2B08, 2B09,
2D01 or 2D02.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology for the development of items controlled by
2B04--MT Column 1
NP applies to technology for the development of items controlled by
2B04--NP Column 1
NP applies to technology for the development of items controlled for NP
reasons by 2B01, 2B06.a .b and .c, 2B07, 2B08, and 2B09, and software
controlled by 2D01 for NP reasons-- NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes for NP, except techology for 2B04, and except Bulgaria,
Romania, or Russia
CIV: N/A
TSR: Yes, except MT and NP
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E02 Technology according to the General Technology Note for the
production of equipment controlled by 2A01, 2A02, 2A03, 2A04, 2A05,
2A06, 2B01, 2B02, 2B03, 2B04, 2B05, 2B06, 2B07, 2B08 or 2B09.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology for the production of items controlled by
2B04--MT Column 1
NP applies to technology for the production of items controlled by
2B04--NP Column 1
NP applies to technology for the production of items controlled by
2B01, 2B06.a, .b, and .c, 2B07, 2B08, and 2B09 for NP reasons--NP
Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except technology for 2B04 and except Bulgaria, Romania,
or Russia, for NP only
CIV: N/A
TSR: Yes, except MT and NP
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E03 Other Technology.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to technology controlled by 2E03.a.1 or a.3--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia, for 2E03.a.1 and a.3
only
CIV: N/A
TSR: Yes, except 2E03.a.1, a.3, b, and d
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E18 Technology for the development, production or use of equipment
controlled by 2B18.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology for the development, production or use of
items controlled by 2B18 for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except MT and Iran and Syria [[Page 25439]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E19 Technology for the development, production, or use of equipment
controlled by 2A19.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to technology for the development, production or use of
items controlled by 2A19.b and .c--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia for NP only
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E20 Technology for the use of commodities controlled by 2B04.
License Requirement
Reason for Control: MT, NP, AT
Control (s) and 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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E24 Technology for the development, production, or use of commodities
controlled by 2B24.
License Requirement
Reason for Control: MT, NP, AT
Control(s) and 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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E40 Technology for the use of hot isostatic presses controlled by
2B04, and systems or equipment controlled by 2B06.a, .b, or c, 2B07,
2B08 or 2B09.
License Requirement
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to technology NP Column 1 for the use of items
controlled by 2B04, 2B06.a, .b or .c, 2B07, 2B08, and 2B09 for NP
reasons.
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E41 Technology for the development, production or use of numerically
controlled machine tools controlled by 2B41 or for the use of equipment
controlled by 2B01.
License Requirement
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E44 Technology for the development, production or use of specialized
instruments for hydrodynamic experiments controlled by 2A44 or
isostatic presses controlled by 2B44.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E48 Technology for the development, production or use of valves
controlled by 2A48.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E49 Technology for the development, production or use of equipment
controlled by 2A49.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A [[Page 25440]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E50 Technology for the development, production or use of equipment
controlled by 2A50 or 2B50.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E51 Technology for the development, production or use of equipment
controlled by 2A51 or 2B51.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E52 Technology for the development, production or use of equipment
controlled by 2A52.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E53 Technology for the development, production or use of equipment
controlled by 2A53 or 2B53.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E93 Technology for the development, production, or use of portable
electric generators controlled by 2A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
2E94 Technology for the development, production, or use of numerical
control units and numerically controlled machine tools controlled by
2B91, manual dimensional inspection machines controlled by 2B92, gear
making and/or finishing machinery controlled by 2B93, or robots
controlled by 2B94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 3--Electronics Design, Development and Production
A. Equipment, Assemblies and Components
3A01 Electronic devices and components.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to 3A01.a.1.a--MT Column 1
NP applies to 3A01.e.5--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500: 3A01.c; $3000: 3A01.b.1 to b.3, 3A01.d to 3A01.f;
$5000: 3A01.a, 3A01.b.4 to b.7
CSR: Yes, except 3A01.a.1.a and 3A01.e.5
GBS: Yes, except 3A01.a.1.a, b.1, b.3 to b.7, c to f
NSG: Yes, except Bulgaria, Romania, or Russia, for 3A01.e.5
CIV: Yes for 3A01.a.4.a and a.4.b (see Advisory Note 3 to Category
3--Electronics Design, Development and Production)
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A02 General purpose electronic equipment.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000: 3A02.a, 3A02.e to g; [[Page 25441]] $5000: 3A02.b to d,
3A02.h
CSR: Yes
GBS: Yes for 3A02.a.1
NSG: N/A
CIV: Yes for 3A02.h
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A22 Accelerators capable of delivering electromagnetic radiation
produced by ``bremsstrahlung'' from accelerated electrons of 2 Me V or
greater and systems containing the accelerators, excluding that
equipment specially designed for medical purposes.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A41 Capacitors not controlled by 3A01.e.2.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A42: Superconducting solenoidal electromagnets other than those
described in 3A01.e.3.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A43 Switching devices.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A44 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) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A46 Firing sets and equivalent high-current pulse generators (for
detonators controlled by 3A49).
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A48 Multistage light gas gun or other high-velocity gun systems
(coil, electromagnetic, electrothermal, or other advanced systems)
capable of accelerating projectiles to 2 kilometers per second or
greater and specialized components therefor.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25442]]
3A49 Detonators and multipoint initiation systems (exploding bridge
wire, slapper, etc.).
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A50 Inverters, converters, frequency changers, and generators.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A51 Mass spectrometers.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A52 Oscilloscopes, transient recorders, and specially designed
components therefor.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A53 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 amp or greater and with a current or
voltage regulation better than 0.1 percent.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A54 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 amps or greater and with a current or voltage
regulation better than 0.1 percent.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A55 Flash X-ray generators and electron accelerators not controlled
by 3A01.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A80 Voice print identification and analysis equipment and parts,
n.e.s.
License Requirements
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A [[Page 25443]]
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A81 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) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A92 Electronic devices and components not controlled by 3A01.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A93 Electronic test equipment in Category 3A n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1000 for Syria only
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3A94 General purpose electronic equipment not controlled by 3A02.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
3B01 Equipment for manufacture or testing of semiconductor devices or
materials, as follows, and specially designed components and
accessories therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $500
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3B91 Equipment not controlled by 3B01 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) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
3C01 Hetero-epitaxial materials consisting of a ``substrate'' with
stacked epitaxially grown multiple layers.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25444]]
3C02 Resist materials, and ``substrates'' coated with controlled
resists.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3C03 Organo-inorganic compounds as described in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3,000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3C04 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) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
D. Software
3D01 Software specially designed for the development or production of
equipment controlled by 3A01.b to 3A01.f, 3A02, or 3B01.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to software for the development or production of items
controlled for NP reasons by 3A01.e.5.--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia, for ``software'' for
3A01.e.5
CIV: N/A
TSR: Yes, except 3A01.e.5
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3D02 Software specially designed for the use of stored program
controlled equipment controlled by 3B01.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3D03 Computer-aided-design (CAD) ``software'' for semiconductor device
or integrated circuits.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3D21 Software specially designed for the development or production of
items controlled by 3A01.a.1.a.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3D22 Software for the development, production, or use of radiographic
equipment (linear accelerators) controlled by 3A22.
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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A [[Page 25445]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3D80 Software specially designed for the development, production, or
use of items controlled by 3A80 and 3A81.
License Requirements:
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire--entry CC Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3D94 Software specially designed for the development, production, or
use of electronic devices or components controlled by 3A92, electronic
test equipment controlled by 3A93, general purpose electronic equipment
controlled by 3A94, or manufacturing and test equipment controlled by
3B91.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
3E01 Technology according to the General Technology Note for the
development or production of equipment or materials controlled by 3A01,
3A02, 3B01, 3C01, 3C02, 3C03 or 3C04.
License Requirements
Reason for Control: NS, MT, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology specially designed for the development or
production of items controlled for MT reasons by 3A01.a.1.a--MT Column
1
NP applies to technology specially designed for the development or
production of items controlled for NP reasons by 3A01.e.5 --NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except 3A01.a.1.a and e.5
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3E02 Other technology for the development or production of equipment
and components described in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3E22 Technology for the development, production, or use of
radiographic equipment (linear accelerators) controlled by 3A22.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3E40 Technology for the development, production, or use of items
controlled by 3A41, 3A42, 3A43, 3A44, 3A46, 3A48, 3A49, 3A50, 3A51,
3A52, 3A53, 3A54, or 3A55.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3E41 Technology for the use of flash discharge type x-ray systems,
including tubes, controlled by 3A01.e.5.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3E80 Technology specially designed for the development, production, or
use of items controlled by 3A80 and 3A81.
License Requirements
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A [[Page 25446]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
3E94 Technology for the development, production, or use of electronic
devices or components controlled by 3A92, electronic test equipment
controlled by 3A93, general purpose electronic equipment controlled by
3A94, or manufacturing and test equipment controlled by 3B91.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
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 of the
telecommunications entries in Category 5.
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 the telecommunications entries in Category 5.
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''
specifically designed for packet switching, see the
telecommunications entries in Category 5.
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 of the ``information security'' entries in Category
5.
A. Equipment, Assemblies and Components
4A01 Electronic computers and related equipment, as follows, and
assemblies and specially designed components therefor.
License Requirements
Reason for Control: NS, MT, NP, SC, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to 4A01.a--MT Column 1
AT applies to entire entry--AT Column 1
NP applies to computers with a CTP exceeding 500 Mtops destined for
a country listed in Country Group D:2. This reason for control does not
relate directly to a licensing requirement, but rather an additional
review conducted on all applications by the Bureau of Export
Administration. Accordingly, no additional column is provided for
purposes of identifying licensing requirements.
SC (Supercomputer) controls apply to all destinations except Japan
for computers with a Composite Theoretical Performance equal to or
exceeding 1500 Mtops. These controls do not relate directly to a
licensing requirement, but rather what type of supercomputer support
documentation (e.g., security plan) is required, conditions that may be
placed on the license, and the licensing review policy the application
will be subject to at the Bureau of Export Administration.
Accordingly, no additional column is provided for purposes of
identifying licensing requirements. (Reference Sec. 742.12 for
information on licensing review policies, required support
documentation, security conditions and plans, and licensing policies.)
License Alternatives
License Exceptions
LVS: $5000 for 4A01.a; N/A for 4A01.b
CSR: Yes, except MT and except supercomputers as defined in
Sec. 742.12 (no supercomputer restriction for Japan)
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4A02 Hybrid computers, as follows, and assemblies and specially
designed components therefor.
License Requirements
Reason for Control: NS, MT, AT, NP, SC
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to hybrid computers combined 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--MT Column 1
AT applies to entire entry--AT Column 1
NP applies to computers with a CTP exceeding 500 Mtops destined for
a country listed in Country Group D:2. This reason for control does not
relate directly to a licensing requirement, but rather an additional
review conducted on all applications by the Bureau of Export
Administration. Accordingly, no additional column is provided for
purposes of identifying licensing requirements.
SC (Supercomputer) controls apply to all destinations except Japan
for computers with a Composite Theoretical Performance equal to or
exceeding 1500 Mtops. These controls do not relate directly to a
licensing requirement, but rather what type of supercomputer support
documentation (e.g., security plan) is required, conditions that may be
placed on the license, and the licensing review policy the application
will be subject to at the Bureau of Export Administration. Accordingly,
no additional column is provided for purposes of identifying licensing
requirements. (Reference Sec. 742.12 for information on licensing
review policies, required support documentation, security conditions
and plans, and licensing policies.)
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes, except MT and except supercomputers as defined in
Sec. 742.12 (no supercomputer restrictions for Japan)
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
[[Page 25447]]
4A03 Digital computers, assemblies, and related equipment therefor, as
described in this entry, and specially designed components therefor.
License Requirements
Reason for Control: NS, MT, CC, AT, NP, SC
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to digital computers used as ancillary equipment for test
facilities and equipment that are controlled by 9B05 or 9B06--MT Column
1
CC applies to computers for computerized fingerprint equipment--CC
Column 1
AT applies to entire entry (refer to 4A94 for controls on computers
with CTPs greater than 260 Mtops., but less than or equal to 6 Mtops)--
AT Column 1
NP applies to computers with a CTP exceeding 500 Mtops destined for
a country listed in Country Group D:2. This reason for control does not
relate directly to a licensing requirement, but rather an additional
review conducted on all applications by the Bureau of Export
Administration. Accordingly, no additional column is provided for
purposes of identifying licensing requirements.
SC (Supercomputer) controls apply to all destinations except Japan
for computers with a Composite Theoretical Performance equal to or
exceeding 1500 Mtops. These controls do not relate directly to a
licensing requirement, but rather what type of supercomputer support
documentation (e.g., security plan) is required, conditions that may be
placed on the license, and the licensing review policy the application
will be subject to at the Bureau of Export Administration. Accordingly,
no additional column is provided for purposes of identifying licensing
requirements. (Reference Sec. 742.12 for information on licensing
review policies, required support documentation, security conditions
and plans, and licensing policies.)
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes, except MT and CC, and except supercomputers as defined in
Sec. 742.12 (no supercomputer restriction for Japan)
GBS: Yes, except MT and CC 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 export with these
computers as part of a system. (GBS is not available for the export of
commodities that the exporter knows will be used to: enhance the
performance capability (i.e., CTP) of a computer to the supercomputer
level or enhance the performance capability of a supercomputer (See
Sec. 742.12 for a definition of supercomputer))
NSG: N/A
CIV: Yes, except MT and CC for 4A03.d (having a 3-D vector rate
less that 3M vectors/sec) f, (see Advisory Notes 2, 3 and 8 to Category
4-Computers)
Special Comprehensive License--(To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4A04 Computers, as follows, and specially designed related equipment,
assemblies and components therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4A21 Analog computers, digital computers, or digital differential
analyzers designed or modified for use in missiles not controlled by
4A01 and having either of the following characteristics: rated for
continuous operation at temperatures from below -45 deg.C to above
+55 deg.C; or designed as ruggedized or radiation hardened.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4A80 Computers for fingerprint equipment, n.e.s.
License Requirements
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4A94 Computers, assemblies, and related equipment not controlled by
4A01, 4A02, or 4A03, and specially designed components therefor.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25448]]
B. Test, Inspection and Production Equipment
4B94 Equipment for the development and production of magnetic and
optical storage equipment, as described in this entry.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
4C94 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) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
D. Software
Note to Category 4D: The control status of software for the
development, production, or use of equipment described in other
Categories is dealt with in the appropriate Catergory. The control
status of software for equipment described in the Category 4 is
dealt with herein.
4D01 Software specially designed or modified for the development,
production or use of equipment controlled by 4A01, 4A02, 4A03, or 4A04,
or software controlled by 4D01, 4D02, or 4D03.
License Requirements
Reason for Control: NS, MT, CC, AT, SC
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software specially designed or modified for the
development, production or use of equipment controlled for MT reasons
by 4A01, 4A02, and 4A03--MT Column 1
CC applies to software specially designed or modified for the
development, production or use of computers for computerized
fingerprint equipment--CC Column 1
AT applies to entire entry--AT Column 1
SC (Supercomputer) controls apply to all destinations except Japan
for software specially designed or modified for the development,
production, or use of computers with a Composite Theoretical
Performance equal to or exceeding 1500 Mtops. These controls do not
relate directly to a licensing requirement, but rather what type of
supercomputer support documentation (e.g., security plan) is required,
conditions that may be placed on the license, and the licensing review
policy the application will be subject to at the Bureau of Export
Administration. Accordingly, no additional column is provided for
purposes of identifying licensing requirements. (Reference Sec. 742.12
for information on licensing review policies, required support
documentation, security conditions and plans, and licensing policies.)
License Alternatives
License Exceptions
NSG: N/A
CIV: Yes, except MT and CC (see Advisory Notes 2 and 3 to Category
4-Computers)
TSR: Yes, except MT and CC and except software for supercomputers
as defined in Sec. 742.12 (no supercomputer restriction for Japan)
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4D02 Software specially designed or modified to support technology
controlled by 4E01 or 4E02.
License Requirements
Reason for Control: NS, MT, AT, SC
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software specially designed or modified to support
technology for the development, production or use of equipment
controlled for MT reasons by 4A01, 4A02, and 4A03--MT Column 1
AT applies to entire entry--AT Column 1
SC (Supercomputer) controls apply to all destinations except Japan
for software specially designed or modified to support technology for
the development, production, or use of computers with a Composite
Theoretical Performance equal to or exceeding 1500 Mtops. These
controls do not relate directly to a licensing requirement, but rather
what type of supercomputer support documentation (e.g., security plan)
is required, conditions that may be placed on the license, and the
licensing review policy the application will be subject to at the
Bureau of Export Administration. Accordingly, no additional column is
provided for purposes of identifying licensing requirements. (Reference
Sec. 742.12 for information on licensing review policies, required
support documentation, security conditions and plans, and licensing
policies.)
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except MT and CC and except software specifically designed or
modified to support technology for supercomputers as defined in
Sec. 742.12 (no supercomputer restriction for Japan)
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4D03 Specific software, as described in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1 [[Page 25449]]
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except D03.c
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4D21 Software specially designed or modified for the development,
production, or use of items controlled by 4A21, or for supporting
technology controlled by 4E21 for the development, production, or use
of items controlled by 4A21.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4D80 Software specially designed for the development, production, or
use of items controlled by 4A80.
License Requirements
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4D92 Software specially designed or modified for the development,
production, or use of equipment controlled by 4B94 and materials
controlled by 4C94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4D93 Program proof and validation software, software allowing the
automatic generation of source codes, and operating systems not
controlled by 4D03 that are specially designed for real time processing
equipment.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled:
* * * * *
4D94 Software specially designed for the development, production, or
use of digital computers, assemblies, and related equipment therefor
controlled by 4A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
4E01 Technology according to the General Technology Note, for the
development, production or use of equipment controlled by 4A01, 4A02,
4A03, or 4A04, or software controlled by 4D01, 4D02, or 4D03.
License Requirements
Reason for Control: NS, MT, CC, AT, SC
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology for the development, production or use of
equipment or software controlled for MT reasons by 4A01, 4A02, 4A03,
4D01 or 4D02--MT Column 1
CC applies to technology for the development, production or use of
computers controlled by by 4A03 for CC reasons--CC Column 1
AT applies to entire entry--AT Column 1
SC (Supercomputer) controls apply to all destinations except Japan
for technology for the development, production, or use of computers
with a Composite Theoretical Performance equal to or exceeding 1500
Mtops. These controls do not relate directly to a licensing
requirement, but rather what type of supercomputer support
documentation (e.g., security plan) is required, conditions that may be
placed on the license, and the licensing review policy the application
will be subject to at the Bureau of Export Administration. Accordingly,
no additional column is provided for purposes of identifying licensing
requirements. (Reference Sec. 742.12 for information on licensing
review policies, required support documentation, security conditions
and plans, and licensing policies.)
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except MT and CC and except technology for supercomputers
as defined in 742.12 (no supercomputer restriction for Japan)
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25450]]
4E02 Other technology.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4E21 Technology for the development, production, or use of items
controlled by 4A21.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4E80 Technology for the development, production, or use of items
controlled by 4A80.
License Requirements
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4E92 Technology for the development, production, or use of equipment
controlled by 4B94, materials controlled by 4C94, or software
controlled by 4D92, 4D93, or 4D94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4E93 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) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
4E94 Technology for the development, production, or use of digital
computers, assemblies and related equipment therefor controlled by
4A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 5--Telecommunications and Information Security
Notice: Category 5 entries are divided into three sections. (I)
Telecommunication entries; (II) Information Security entries; and
(III) Other Equipment, Materials and Software and Technology
entries.
I. Telecommunications
A. Equipment, Assemblies and Components
5A01 Any type of telecommunications equipment having any of the
following characteristics, functions or features.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A02 Telecommunication transmission equipment or systems and specially
designed components and accessories therefor, having any of the
characteristics, functions or features described in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry-- AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes, except 5A02.h and i
NSG: N/A
CIV: Yes, except 5A02.h and i [[Page 25451]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A03 Stored program controlled switching equipment and related
signalling systems having any of the characteristics, functions or
features described in this entry, and specially designed components and
accessories therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A04 Centralized network controls having the characteristics described
in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A05 Optical fiber communication cables and optical fibers.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: Yes
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A06 Phased array antennas, operating above 10.5GHz containing active
elements and distributed components, and designed to permit electronic
control of beam shaping and pointing, except for landing systems with
instruments meeting ICAO standards (microwave landing systems (MLS)).
License Requirements
Reason For Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
5B01 Equipment, and Specially designed components and accessories
therefor, Specially designed for the development, production, or use of
equipment, materials, or functions controlled by the entries in the
telecommunications sections of Category 5 for national security
reasons.
License Requirements
Reason For Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5B02 Other equipment.
License Requirements
Reason For Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
5C01 Preforms of glass or of any other material optimized for the
manufacture of optical fibers controlled by 5A05.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: Yes
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25452]]
D. Software
5D01 Software specially designed or modified for the development,
production or use of equipment or materials controlled by the
telecommunications entries 5A01, 5A02, 5A03, 5A04, 5A05, 5A06, 5B01,
5B02, or 5C01.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: Yes
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D02 Software specially designed or modified to support technology
controlled by telecommunications entries 5E01 and 5E02.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: Yes
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D03 Specific Software as described in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: Yes
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
5E01 Technology according to the General Technology Note for the
development, production or use (excluding operation) of equipment,
systems, materials or software controlled by the telecommunications
entries in 5A, 5B, 5C, or 5D.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5E02 Specific technologies as described in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry-- NS Column 1
AT applies to entire entry-- AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes, except Iran and Syria
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
II. Information Security
A. Equipment, Assemblies and Components
5A11 Systems, equipment, application specific ``assemblies'', modules
or integrated circuits for ``information security'' as listed, and
specially designed components therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: Yes for Advisory Note 4 to Category 5--Information Security
NSG: N/A
CIV: Yes for Advisory Notes 4 and 5 to Category 5--Information
Security
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
5B11 Equipment specially designed for the development of equipment or
functions controlled by the information security entries in this
category, including measuring or test equipment.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25453]]
5B12 Equipment designed for the production of equipment or functions
controlled by the information security entries in this category,
including measuring, test, repair or production equipment.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5B13 Measuring equipment specially designed to evaluate and validate
the information security functions controlled by the information
security entries in 5A or 5D.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
[Reserved]
D. Software
5D11: Software specially designed or modified for the development,
production or use of equipment controlled by Information Security
entries 5A11, 5B11, 5B12 or 5B13 or software controlled by Information
Security entries 5D11, 5D12, or 5D13.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: Yes for Advisory Note 5 to Category 5--Information Security
TSR: Yes for Advisory Note 5 to Category 5--Information Security
Special Comprehensive License: (To Be determined in final rule)
List of Items Controlled
* * * * *
5D12 Software specially designed or modified to support technology
controlled by the information security entry 5E11.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D13 Specific software as follows:
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes for software described in Advisory Note 5--Information
Security, provided that the software is not controlled by the Office of
Defense Trade Controls, Department of State
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
5E11 Technology according to the General Technology Note for the
development, production or use of equipment controlled by information
security entries 5A11, 5B11, 5B12, or 5B13 or software controlled by
information security entries 5D11, 5D12, or 5D13.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
III. Other Equipment, Materials, ``Software'', and Technology
A. Equipment, Assemblies and Components
5A20 Telemetering and telecontrol equipment usable as launch support
equipment for unmanned air vehicles or rocket system.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A [[Page 25454]]
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A80 Communications intercepting devices; and parts and accessories
therefor.
License Requirements
Reason for Control
Controls on equipment described in this entry are maintained in
accordance with the Omnibus Crime Control and Safe Streets Act of 1968
(Public Law 90-351). 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.
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A90 Any type of telecommunications equipment, not controlled by 5A01,
specially desinged to operate outside the temperature range from 219D
(-54 deg.C) to 397K (124 deg.C).
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A91 Transmission equipment, not controlled by 5A02, containing:
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A92 Mobile communications equipment, n.e.s., and assemblies and
components therefor.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A93 Radio relay communications equipment designed for use at
frequencies equal to or exceeding 19.7 GHz and assemblies and
components therefor, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A94 Data (message) switching equipment or systems designed for
packet-mode operation and assemblies and components therefor, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5A95 Information security equipment, n.e.s.; (e.g., cryptographic,
cryptoanalytic, and cryptologic equipment, n.e.s.), and components
therefor.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
5B94 Telecommunications test equipment, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1 [[Page 25455]]
License Alternatives
License Exceptions
LVS: $1,000 for Syria; N/A to Iran
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
[Reserved]
D. Software
5D20 Software designed or modified for the development, production or
use of items controlled by 5A20.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D90 Software specially designed or modified for the development,
production, or use of equipment controlled by 5A90 and 5A91.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D91 Software specially designed or modified for the development,
production, or use of telecommunications test equipment controlled by
5B94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D92 Software specially designed or modified for the development,
production or use of mobile communications equipment controlled by
5A92.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D93 Software specially designed or modified for the development,
production or use of radio relay communication equipment controlled by
5A93.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D94 Software specially designed or modified for the development,
production or use of data (message) switching equipment controlled by
5A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5D95 Software, n.e.s., specially designed or modified for the
development, production, or use of information security or cryptologic
equipment (e.g., equipment controlled by 5A95).
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
5E20 Technology for the development, production or use of equipment or
software controlled by 5A20 or 5D20.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A [[Page 25456]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5E90 Technology for the development, production or use of equipment
controlled by 5A90 or 5A91 or software controlled by 5D90.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5E91 Technology for the development, production, or use of
telecommunications test equipment controlled by 5B94, or software
controlled by 5D91.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5E92 Technology for the development, production, or use of mobile
communications equipment controlled by 5A92 or software controlled by
5D92.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5E93 Technology for the development, production, or use of radio relay
communication equipment controlled by 5A93, or software controlled by
5D93.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5E94 Technology for the development, production or use of data
(message) switching equipment controlled by 5A94, or software
controlled by 5D94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
5E95 Technology, n.e.s., for the development, production, or use of
information security or cryptologic equipment (e.g., equipment
controlled by 5A95), or software controlled by 5D95.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 6--Sensors
A. Equipment, Assemblies and Components
6A01 Acoustics.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: Yes for 6A01.a.1.b.4 (see Advisory Note 1.2 to Category 6--
Sensors)
NSG: N/A
CIV: Yes for 6A01.b
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A02 Optical Sensors.
License Requirements
Reason for Control: NS, MT, CC, RS, AT, UN
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to optical detectors in 6A02.a.1, a.3, and a.4 that are
specially designed or rated as electromagnetic (including ``lasers'')
and ionized-particle radiation resistant--MT Column 1
RS applies to 6A02.a.1, a.2, a.3 and .c--RS Column 1
CC applies to police-model infrared viewers in 6A02.c--CC Column 1
AT applies to entire entry--AT Column 1
UN applies to 6A02.a.1, a.2, a.3 and c--UN Column 1
License Alternatives
License Exceptions
LVS: $3000, except N/A for 6A02.a.1, a.2, a.3, and c
CSR: Yes, except MT, RS, and CC
GBS: N/A
NSG: N/A [[Page 25457]]
CIV: Yes, except MT, RS and CC for 6A02a.4 and items in Advisory
Notes 2.2 and 2.3 to Category 6--Sensors
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A03 Cameras.
License Requirements
Reason for Control NS, NP, RS, AT, UN
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to items controlled in paragraphs 6A03.a.2, a.3, a.4, a.5
and b.1--NP Column 1
RS applies to items controlled in 6A03.b.3 and b.4--RS Column 1
AT applies to entire entry--AT Column 1
UN applies to items controlled in 6A03.b.3 and b.4--UN Column 1
License Alternatives
License Exceptions
LVS: $1500, except N/A for 6A03.a.2 through a.5, b.1, b.3 and b.4
CSR: Yes, except NP and RS
GBS: N/A
NSG: Yes, except Bulgaria, Romania, or Russia, for NP only
CIV: Yes for 6A03a.1 and items in Advisory Note 3.2 to Category 6--
Sensors
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A04 Optics.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: Yes for 6A04a.1, a.2, a.4, b, d.1.a, e.2 and e.4 (see Advisory
Note 4.2 to Category 6--Sensors)
NSG: N/A
CIV: Yes for 6A04.f and items in Advisory Note 4.2 to Category 6--
Sensors
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A05 Lasers, components and optical equipment, as follows.
License Requirements
Reason for Control: NS, NP, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
NP applies to 6A05.a.1.c, a.2.a, a.4.c, a.6 (argon lasers only), a.7.b,
c.1.b, c.2.c.2, c.2.c.3, c.2.d.2, and d.2.c--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A for NP items; $3000 for all other items
CSR: Yes, except NP
GBS: Yes, except NP, for items in Advisory Notes 5.3 and .4 to
Category 6--Sensors
NSG: Yes, except Bulgaria, Romania, or Russia, for NP only
CIV: Yes, except NP for 6A05.c.2.a, d, e and for items in Advisory
Notes [5.2], 5.3 and 5.4 to Category 6--Sensors
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A06 Magnetometers, magnetic gradiometers, intrinsic magnetic
gradiometers and compensation systems and specially designed
components.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A07 Gravity meters (gravimeters) and gravity gradiometers.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to 6A07.b and c when the characteristics of 6A07.b are
exceeded--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes, except MT
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A08 Radar systems, equipment and assemblies having any of the
following characteristics, and specially designed components therefor.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to items that are designed for airborne applications and
that are usable in systems controlled for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes, except MT
GBS: N/A
NSG: N/A
CIV: Yes, except MT for 6A08.b, c, and l.1
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25458]]
6A18 Magnetic, pressure, and acoustic underwater detection devices
specially designed for military purposes and controls and components
therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A22 Photosensitive components not controlled by ECCN 6A02
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A28 Radar and laser radar systems (including altimeters), and
specially designed components for airborne applications.
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A29 Precision tracking systems.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A30 Integrated electronic systems specially designed for radar cross
section measurement.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A43 Cameras and components not controlled by ECCN 6A03.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions:
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A44 Photomultiplier tubes.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A50 Lasers, laser amplifiers, and oscillators.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: Yes
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25459]]
6A90 Airborne radar equipment, n.e.s., and specially designed
components therefor.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A92 Gravity meters (gravimeters) not controlled by 6A07.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A93 ``Magnetometers'' having a ``noise level'' (sensitivity) lower
(better) than 1.0 nT rms per square root Hz, but no lower than 0.05 nT
rms per square root Hz.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6A94 Marine or terrestrial acoustic equipment, n.e.s., capable of
detecting or locating underwater objects or features or positioning
surface vessels or underwater vehicles; and specially designed
components, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
6B04 Optics.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5,000
CSR: Yes
GBS: Yes for Advisory Note 4.3 to Category 6-Sensors
NSG: N/A
CIV: Yes for Advisory Note 4.3 to Category 6-Sensors
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6B05 Lasers.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5,000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6B07 Gravimeters.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6B08: Radar.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions:
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25460]]
C. Materials
6C02 Optical sensors.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: Yes for 6C02.c
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6C04 Optics.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: Yes
GBS: Yes for Advisory Note 4.2 to Category 6-Sensors
NSG: N/A
CIV: Yes for 6C04.h and Advisory Note 4.2 to Category 6--Sensors
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6C05 Lasers.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
D. Software
6D01 Software specially designed for the development or production of
equipment controlled by 6A04, 6A05, 6A08, or 6B08.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and County Chart
NS applies to entire entry--NS Column 1
MT applies to software for the development or production of equipment
controlled by 6A08 that is designed for airborne applications and that
are usable in systems controlled for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions:
NSG: N/A
CIV: N/A
TSR: Yes, except MT
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D02 Software specially designed for the use of equipment controlled
by 6A02.b, 6A08, or 6B08.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and County Chart
NS applies to entire entry--NS Column 1
MT applies to software forthe use of equipment controlled by 6A08 that
is designed for airborne applications and that are usable in systems
controlled for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions:
NSG: N/A
CIV: N/A
TSR: Yes, except MT
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D03 Other software, as follows.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: Yes for 6D03.d.1 and Advisory Note 8.2 to Category 6--Sensors
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D21 Software specially designed for the development or production of
equipment controlled by 6A02.a.1, a.2, a.3, a.4, c, 6A03.b.3, b.4,
6A22, 6A07.b and .c, 6A28 or 6A30.
License Requirements
Reason for Control: MT, RS, AT, UN
Control(s) and Country Chart
MT applies to software for the development or production of equipment
controlled by 6A02.a.1, a.3, and a.4, 6A07.b and c, 6A22, 6A28, or
6A30--MT Column 1
RS applies to software for the development or production of equipment
controlled by 6A02.a.1, a.2, a.3, c, 6A03.b.3 and b.4--RS Column 1
AT applies to entire entry--AT Column 1
UN applies to software for the development or production of equipment
controlled by 6A02.a.1, a.2, a.3, c, 6A03.b.3 and b.4--UN Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25461]]
6D22 Software specially designed for the use of equipment controlled
by 6A02.a.1, a.3, and a.4, 6A22, 6A07.b and .c, 6A28, or 6A30.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D29 Software for the development, production, or use of commodities
described in 6A29, including software that processes post-flight
recorded data enabling determination of vehicle position throughout its
flight path.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D90 Software specially designed for the development, production, or
use of airborne radar equipment controlled by 6A90.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Atlernatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D92 Software specially designed for the development, production, or
use of gravity meters (gravimeters) controlled by 6A92.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D93 Software specially designed for the development, production, or
use of magnetometers controlled by 6A93.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6D94 Software specially designed for the development, production, or
use of marine or terrestrial acoustic equipment controlled by 6A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
6E01 Technology according to the General Technology Note for the
development of equipment, materials or software controlled by 6A01,
6A02, 6A03, 6A04, 6A05, 6A06, 6A07, 6A08, 6B04, 6B05, 6B07, 6B08, 6C02,
6C04, 6C05, 6D01, 6D02, or 6D03.
License Requirements
Reason for Control: NS, MT, NP, RS, CC, AT, UN
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology for the development of equipment controlled by
6A02.a.1, a.3, or a.4, 6A07.b or .c, or 6A08 (only when the equipment
is designed for airborne applications and that are usable in systems
controlled for MT reasons--MT Column 1
NP applies to technology for the development of equipment controlled by
6A03.a.2, a.3, a.4, a.5, or b.1, or 6A05.a.1.c, a.2.a, a.4.c, a.6
(argon ion lasers only), a.7.b, c.1.b, c.2.c.2, c.2.c.3, c.2.d.2, or
d.2.c.--NP Column 1
RS applies to technology for the development of items controlled by
6A02.a.1, a.2, a.3, or .c, and 6A03.b.3 and b.4--RS Column 1
AT applies to entire entry--AT Column 1
CC applies to technology for the development of police-model infrared
viewers controlled by 6A02.c--CC Column 1
UN applies to technology for the development of items controlled by
6A02.a.1, a.2, a.3, or .c, and 6A03.b.3 and b.4--UN Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia, for NP only
CIV: N/A
TSR: Yes, except MT, NP, RS, AT, CC, UN
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25462]]
6E02 Technology according to the General Technology Note for the
production of equipment or materials controlled by 6A01, 6A02, 6A03,
6A04, 6A05, 6A06, 6A07, 6A08, 6B04, 6B05, 6B07, 6B08, 6C02, 6C04, or
6C05.
License Requirements
Reason for Control: NS, MT, NP, RS, AT, CC, UN
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology for the production of equipment controlled by
6A02.a.1, a.3, or a.4, 6A07.b or .c, or 6A08 when the equipment is
designed for airborne applications that are usable in systems
controlled for MT reasons--MT Column 1
NP applies to technology for the production of equipment controlled by
6A03.a.2, a.3, a.4, a.5, or b.1, or 6A05.a.1.c, a.2.a, a.4.c, a.6
(argon ion lasers only), a.7.b, c.1.b, c.2.c.2, c.2.c.3, c.2.d.2, or
d.2.c.--NP Column 1
RS applies to technology for the production of items controlled by
6A02.a.1, a.2, a.3, or .c--RS Column 1
AT applies to entire entry--AT Column 1
CC applies to technology for the production of police-model infrared
viewers controlled by 6A02.c--CC Column 1
UN applies to technology for the development of items controlled by
6A02.a.1, a.2, a.3, or c and 6A03.b.3 or b.4--UN Column 1
License Alternatives
License Exceptions
NSG: Yes, except Bulgaria, Romania, or Russia, for NP only
CIV: N/A
TSR: Yes, except MT, NP, RS, AT, CC, UN
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E03 Other technology.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E21 Technology for the development of equipment controlled by 6A22,
6A28, 6A29, or 6A30.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E22 Technology for the production of equipment controlled by 6A22,
6A28, 6A29, or 6A30.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E23 Technology for the use of equipment controlled by 6A02.a.1, a.3,
and a.4, 6A22, 6A07.b and .c, 6A08, 6A28, 6A29, or 6A30.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to technology for use of items controlled by 6A02.a.1, a.3,
and a.4, 6A22, 6A07.b and .c, 6A28, 6A29, 6A30, or items controlled by
6A08 when the equipment is designed for airborne applications that are
usable in systems controlled for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E40 Technology for the use of equipment controlled by 6A03.a.2, a.3,
a.4, a.5, or b.1 or 6A05.a.1.c, a.2.a, a.4.c, a.6 (argon ion lasers
only), a.7.b, c.1.b, c.2.c.2, c.2.c.3, c.2.d.2, or d.2.c.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E41 Technology for the development, production, or use of equipment
controlled by 6A43, 6A44, or 6A50.
License Requirements
Reason for Control: NP, AT
Control(s) and Country Chart
NP applies to entire entry--NP Column 1
AT applies to entire entry--AT Column 1 [[Page 25463]]
License Alternatives
License Exceptions
NSG: Yes
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E90 Technology for the development, production, or use of airborne
radar equipment controlled by 6A90.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E92 Technology for the development, production, or use of gravity
meters (gravimeters) controlled by 6A92.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
6E93 Technology for the development, production, or use of
magnetometers controlled by 6A93.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: To Be Determined in Final Rule)
List of Items Controlled
* * * * *
6E94 Technology for the development, production, or use of marine or
terrestrial acoustic equipment controlled by 6A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 7--Navigation and Avionics
A. Equipment, Assemblies, and Components
7A01 Accelerometers designed for use in inertial navigation or
guidance systems and having any of the following characteristics, and
specially designed components therefor.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to entire entry except accelerometers that are specially
designed and developed as Measurement While Drilling (MWD) Sensors for
use in downhole well service applications--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A02 Gyros having any of the following characteristics, and specially
designed components therefor.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A03 Inertial navigation systems and inertial equipment for aircraft
and specially designed components therefor.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A04 Gyro-astro compasses, and other devices that derive position or
orientation by means of automatically tracking celestial bodies or
satellites, with an azimuth accuracy of equal to or less (better) than
5 seconds of arc; and specially designed components therefor.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1 [[Page 25464]]
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A06 Airborne altimeters operating at frequencies other than 4.2 to
4.4 GHz inclusive and specially designed components therefor, having
either of the following characteristics.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A21 Accelerometers, designed for use in inertial navigation systems
or in guidance systems of all types, having the characteristics of
either 7A21.a or 7A21.b; and specially designed components therefor.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry except accelerometers that are specially
designed and developed as Measurement While Drilling (MWD) Sensors for
use in downhole well service applications--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A22: Gyros of all types, with a rated drift rate stability of less
than 0.5 deg. (1 sigma or rms) per hour in a 1 g environment; and
specially designed components therefor.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A23 Inertial or other equipment using accelerometers or gyros
described in 7A21 or 7A22, and systems incorporating such equipment;
and specially designed components therefor.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A24 Other gyro-astro compasses and other devices, and specially
designed components therefor.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A26 Avionics equipment and components usable in missile systems.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A27 Airborne passive sensors for determining bearing to specific
electromagnetic sources (direction finding equipment) or terrain
characteristics.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A [[Page 25465]]
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7A94 Other navigation direction finding equipment, airborne
communication equipment, all aircraft inertial navigation systems, and
other avionic equipment, including parts and components, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
7B01 Test, calibration or alignment equipment specially designed for
equipment controlled by 7A, for national security reasons except
equipment for Maintenance Level I or Maintenance Level II.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7B02 Equipment, as follows, specially designed to characterize mirrors
for ring laser gyros.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7B03 Equipment specially designed for the production of equipment
controlled by 7A for national security reasons, and specially designed
components therefor, including:
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7B22 Reflectometers and specially designed test, calibration, and
alignment equipment and production equipment and specially designed
components therefor, for the production of items controlled by 7A or 7B
for national security or missile technology reasons and specially
designed components therefor.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7B94 Other equipment for the test, inspection, or production of
navigation and avionics equipment.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
[Reserved]
D. Software
7D01 Software specially designed or modified for the development or
production of equipment controlled by 7A or 7B for national security
reasons.
License Requirements
Reason for Control: NS, MT, RS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1 [[Page 25466]]
MT applies to entire entry--MT Column 1
RS applies to software for the development or production of inertial
navigation systems inertial equipment, and specially designed
components therefor, for civil aircraft--RS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7D02 Source code for the use of any inertial navigation equipment or
Attitude Heading Reference Systems (AHRS) (except gimballed AHRS)
including inertial equipment not controlled by 7A03 or 7A04.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7D03 Other software, as follows.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7D24 Software specially designed for the development, production, or
use of commodities controlled by 7A21, 7A22, 7A23, 7A24, 7A25, 7A26,
and 7A27, 7B01, 7B02, 7B03, and 7B22 for missile technology reasons.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7D94 Software, n.e.s., for the development, production, or use of
navigation, airborne communication and other avionics.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
7E01 Technology according to the General Technology Note for the
development of equipment or software controlled by 7A, 7B, or 7D for
national security reasons.
License Requirements
Reason for Control: NS, MT, RS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to entire entry--MT Column 1
RS applies to technology for the development of inertial navigation
systems, inertial equipment and specially designed components therefor,
for civil aircraft--RS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7E02 Technology according to the General Technology Note GTN for the
production of equipment controlled by 7A or 7B for national security
reasons.
License Requirements
Reason for Control: NS, MT, RS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to entire entry--MT Column 1
RS applies to technology for the production of inertial navigation
systems, inertial equipment and specially designed components therefor,
for civil aircraft--RS Column 1.
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled:
* * * * *
7E03 Technology according to the General Technology Note (GTN) for the
repair, refurbishing or overhaul of equipment controlled by 7A01 to
7A04, except for maintenance technology directly associated with
calibration, removal or replacement of damaged or unserviceable line
replaceable units (LRU) and shop replaceable units (SRA) of a civil
aircraft as described in Maintenance Level I or Maintenance Level II.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1 [[Page 25467]]
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7E04 Other technology.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7E21 Other technology for the development, production or use of
equipment or software controlled by 7A, 7B, or 7D controlled for
national security or missile technology reasons.
License Requirements
Reason for Control: MT, RS, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
RS applies to development--RS Column 1 or production of inertial
navigation systems, inertial equipment and specially designed
components therefor, for civil aircraft--RS Column 1.
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7E22 Design technology for protection of avionics and electrical
subsystems against electromagnetic pulse (EMP) and electromagnetic
interference (EMI) hazards from external sources.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
7E94 Technology, n.e.s., for the development, production, or use of
navigation, airborne communication, and other avionics equipment.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 8--Marine Technology
A. Equipment, Assemblies and Components
8A01 Submersible vehicles or surface vessels.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8A02 Systems or equipment.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes for 8A02.i.2 (see Advisory Note 2 to Category 8--Marine
Technology)
NSG: N/A
CIV: Yes for 8A02.e.2 and Advisory Note 2 to Category 8--Marine
Technology
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8A18 Commodities on the International Munitions List.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25468]]
8A92 Other underwater camera equipment, n.e.s., other submersible
systems, n.e.s.; and specially designed parts therefor.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8A93 Self-contained underwater breathing apparatus (scuba gear) and
related equipment.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8A94 Boats, n.e.s., including inflatable boats, marine engines (both
inboard and outboard) and submarine engines, n.e.s; and specially
designed parts therefor, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
8B01 Water tunnels, having a background noise of less than 100 dB
(reference 1 microPascal, 1 Hz) in the frequency range from 0 to 500
Hz, designed for measuring acoustic fields generated by a hydro-flow
around propulsion system models.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
8C01 Syntactic foam for underwater use.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
D. Software
8D01: Software specially designed or modified for the development,
production or use of equipment or materials controlled by 8A01, 8A02,
8A18, 8B01, or 8C01.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8D02 Specific software specially designed or modified for the
development, production, repair, overhaul or refurbishing (re-
machining) of propellers specially designed for underwater noise
reduction.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8D92 Software specially designed or modified for the development,
production or use of commodities controlled by 8A92.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A [[Page 25469]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8D93 Software specially designed or modified for the development,
production or use of commodities controlled by 8A93 and 8A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
8E01 Technology according to the General Technology Note for the
development or production of equipment or materials controlled by 8A01,
8A02, 8A18, 8B01, or 8C01.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8E02 Other technology
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8E92 Technology for the development, production or use of commodities
controlled by 8A92.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
8E93 Technology for the development, production or use of commodities
controlled by 8A93 and 8A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 9--Propulsion Systems and Transportation Equipment
A. Equipment, Assemblies and Components
9A01 Aero gas turbine engines incorporating any of the technologies
controlled by 9E03.a and described in this entry.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A02 Marine gas turbine engines with an ISO standard continuous power
rating of 24,245 kW or more and a specific fuel consumption of less
than 0.219 kg/kW-hr at any point in the power range from 35 to 100
percent, and specially designed assemblies and components therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: Yes for Advisory Note 2 to Category 9--Propulsion Systems and
Transportation Equipment
NSG: N/A
CIV: Yes for Advisory Note 2 to Category 9--Propulsion Systems and
Transportation Equipment
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25470]]
9A03 Specially designed assemblies and components, incorporating any
of the technologies controlled by 9E03.a for gas turbine engine
propulsion systems.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A04 Spacecraft (not including their payloads) and specially designed
components therefor.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A18 Commodities on the International Munitions List.
License Requirements
Reason for Control: NS, RS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
RS applies to 9A18.a and b--RS Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1500
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A21 Gas turbine aero engines not controlled by 9A01, uncertified or
certified, having both a maximum thrust value greater than 1000N
(achieved un-installed), excluding civil certified engines with a
maximum thrust value greater than 8,890N (achieved un-installed), and
specific fuel consumption of 0.13kg/N/hr or less (at sea level static
and standard conditions).
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A22 Vehicles designed or modified for transport or handling of
missile systems.
License Requirements
Reason for Control: MT, UN, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
UN applies to entire entry--UN Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A23 Liquid or slurry propellant control systems, pumps and servo
valves therefor, and specially designed components therefor.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $1000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A24 Non-military unmanned air vehicle systems (UAVs) and remotely
piloted vehicles (RPVs) that are capable of a maximum range of at least
300 kilometers (km), regardless of payload.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A80 Nonmilitary mobile crime science laboratories; and parts and
accessories, n.e.s.
License Requirements
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
LVS: N/A [[Page 25471]]
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A90 Diesel engines, n.e.s., for trucks, tractors, and automotive
applications of continuous brake horsepower of 400 BHP (298 kW) or
greater (performance based on SAE J1349 standard conditions of 100 kPa
and 25 deg.); pressurized aircraft breathing equipment, n.e.s.; and
specially designed parts therefor, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A91 Other aircraft and certain gas turbine engines.
License Requirements
Reason for Control: AT, UN
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
UN applies to 9A91.a--UN Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A92 Off highway wheel tractors of carriage capacity at (10 tons) or
more; and parts and accessories, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A93 On-Highway tractors, with single or tandem rear axles rated for
9t (20,000 lbs.) or greater and specially designed parts.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9A94 Aircraft parts and components, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
9B01 Specially designed equipment, tooling or fixtures, as follows,
for manufacturing or measuring gas turbine blades, vanes or tip shroud
castings.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to equipment for test, inspection and production of small
lightweight turbine engines described in 9A21--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes, except MT
GBS: N/A
NSG: N/A
CIV: Yes, except MT for 9B01.a, b, f and h
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B02 On-line (real time) control systems, instrumentation (including
sensors) or automated data acquisition and processing equipment,
specially designed for the development of gas turbine engines,
assemblies or components incorporating technologies controlled by
9E03.a.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A [[Page 25472]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B03 Equipment specially designed for the production or test of gas
turbine brush seals designed to operate at tip speeds exceeding 335 m/
s, and specially designed parts or accessories.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B04 Tools, dies or fixtures for the solid state joining of gas
turbine superalloy or titanium components.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B05 On-line (real-time) control systems, instrumentation (including
sensors) or automated data acquisition and processing equipment,
specially designed for use with wind tunnels or devices.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B06 Specially designed acoustic vibration test equipment capable of
producing sound pressure levels of 160 dB or more, (reference to 20
micropascals) with a rated output of 4 kW or more at a test cell
temperature exceeding 1273 K (1000 deg.C), and specially designed
transducers, strain gauges, accelerometers, thermocouples or quartz
heaters therefor.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to vibration test equipment only--MT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: Yes, except MT
GBS: N/A
NSG: N/A
CIV: Yes, except MT
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B07 Equipment specially designed for inspecting the integrity of
rocket motors using non-destructive test (NDT) techniques other than
planar X-ray or basic physical or chemical analysis.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B08 Transducers specially designed for the direct measurement of the
wall skin friction of the test flow with a stagnation temperature
exceeding 833k (560 deg.C)
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B09 Tooling specially designed for producing turbine engine powder
metallurgy rotor components capable of operating at stress levels of
60% of ultimate tensile strength (UTS) or more and metal temperatures
of 873 k (600 deg.C) or more.
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1 [[Page 25473]]
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: Yes
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B21 Specially designed production facilities and production equipment
for the systems, sub-systems, and components in ``missile'' systems.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B25 Wind tunnels for speeds of Mach 0.9 or more related control
systems, instrumentation (including sensors) or automated data
acquisition and processing equipment.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B26 Other vibration test equipment, as follows.
License Requirements
Reason for Control: MT, NP, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
NP applies to 9B26.a--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $3000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B27 Test benches or stands that have the capacity to handle solid or
liquid propellant rockets or rocket motors of more than 90 KN (20,000
lbs.) of thrust, or that are capable of simultaneously measuring the
three axial thrust components.
License Requirements
Reason for Control: MT, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9B94 Vibration test equipment and specially designed parts and
components, n.e.s.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
C. Materials
[Reserved]
D. Software
9D01 Software required for the development of equipment controlled by
9A01, 9A02, 9A03, 9B01, 9B02, 9B03, 9B04, 9B05, 9B06, 9B07, 9B08, or
9B09, or technology controlled by 9E03.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software required for the development of items controlled
by 9B02, 9B03, 9B04, 9B06, 9B07, and equipment for test, inspection and
production of items controlled by 9A21 for for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
[[Page 25474]]
9D02 Software required for the production of equipment controlled by
9A01, 9A02, 9A03, 9B01, 9B02, 9B03, 9B04, 9B05, 9B06, 9B07, 9B08 or
9B09.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software required for the production of items controlled
by 9B02, 9B03, 9B04, 9B06, 9B07, and equipment for test, inspection and
production of items controlled by 9A21 for for MT reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9D03 Software required for the use of full authority digital
electronic engine controls (FADEC) for propulsion systems controlled by
9A01, 9A02 or 9A03, or equipment controlled by 9B01, 9B02, 9B03, 9B04,
9B05, 9B06, 9B07, 9B08 or 9B09.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to software required for the use of FADEC for gas turbine
aero engines controlled by 9B21--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9D04 Other software.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and 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 Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9D18 Software for the development, production, or use of equipment
controlled by 9A18.
License Requirements
Reason for Control: NS, RS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
RS applies to 9A18.a and b--RS Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes for Australia, Japan, New Zealand, and NATO only
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9D24 Software specially designed or modified for the development,
production, or use of propulsion systems and equipment controlled by
9A21, 9A22, 9A23, 9A24, 9B21, 9B25, 9B26, or 9B27, and software,
n.e.s., specially designed or modified for use of equipment controlled
by 9B01, 9B02, 9B03, 9B04, 9B06, or 9B07.
License Requirements
Reason for Control: MT, NP, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
NP applies to software for the development, production or use of
vibration test equipment and feedback or closed loop test equipment
controlled by 9B26.a--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9D90 Software, n.e.s., for the development or production of diesel
engines and pressurized aircraft breathing equipment controlled by
9A90.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9D91 Software, n.e.s., for the development or production of aircraft
and aero gas turbine engines controlled by 9A91 or aircraft parts and
components controlled by 9A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25475]]
9D93 Software for the production or development of off-highway wheel
tractors controlled by 9A92 or on-highway tractors controlled by 9A93.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9D94 Software for the development, production, or use of equipment
controlled by 9B94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
E. Technology
9E01 Technology according to the General Technology Note for the
development of equipment controlled by 9A01.c, 9B01, 9B02, 9B03, 9B04,
9B05, 9B06, 9B07, 9B08, or 9B09 or software controlled by 9D01, 9D02,
9D03, or 9D04.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology according to the General Technology Note for
the development of equipment controlled by 9B02, 9B03, 9B04, 9B06, and
9B07, and software controlled by 9D01, 9D02, 9D03, and 9D04 for MT
reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9E02 Technology according to the General Technology Note for the
production of equipment controlled by 9A01.c or 9B01, 9B02, 9B03, 9B04,
9B05, 9B06, 9B07, 9B08, or 9B09.
License Requirements
Reason for Control: NS, MT, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
MT applies to technology according to the General Technology Note for
the development of equipment controlled by 9B02, 9B03, 9B04, 9B06, and
9B07, and software controlled by 9D01, 9D02, 9D03, and 9D04 for MT
reasons--MT Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9E03 Other technology, as follows:
License Requirements
Reason for Control: NS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9E18 Technology for the development, production, or use of equipment
controlled by 9A18.
License Requirements
Reason for Control: NS, RS, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
RS applies to 9A18.a and b--RS Column 2
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes for Australia, Japan, New Zealand, and NATO only
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9E21 Technology for the development, production or use of equipment
controlled by 9A21, 9A22, 9A23, 9A24, 9B21, 9B25, 9B26, or 9B27, or
software controlled by 9D24, and technology for the use of equipment
controlled by 9B01, 9B02, 9B03, 9B04, 9B06, or 9B07.
License Requirements
Reason for Control: MT, NP, AT
Control(s) and Country Chart
MT applies to entire entry--MT Column 1
NP applies to technology for the development, production, or use of
vibration test equipment and feedback or closed loop test equipment
controlled by 9B26.a.--NP Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * * [[Page 25476]]
9E90 Technology, n.e.s., for the development, production, or use of
diesel engines and pressurized aircraft breathing equipment controlled
by 9A90.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 2
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9E91 Technology, n.e.s., for the development, production, or use of
aircraft and aero gas turbine engines controlled by 9A91 or aircraft
parts and components controlled by 9A94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9E93 Technology for the development, production, or use of off-highway
wheel tractors controlled by 9A92 or on-highway tractors controlled by
9A93.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
9E94 Technology for development, production, or use of vibration test
equipment controlled by 9B94.
License Requirements
Reason for Control: AT
Control(s) and Country Chart
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Category 0--Miscellaneous
A. Equipment, Assemblies and Components
0A18 Items on the International Munitions List.
License Requirements
Reason for Control: NS, RS, UN, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
RS applies to 0A18.c--RS Column 2
UN applies to entire entry--UN Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
LVS: $5000 for 0A18.a and b; $3000 for 0A18.c; $1500 for 0A18.d
through f
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
0A80 Horses by sea.
License Requirements
Reason for Control: SS
Control(s)
SS applies to entire entry. For licensing requirements, please turn to
part 754 of this subchapter. The country chart is not designed to
determine licensing requirements for items controlled for SS reasons.
List of Items Controlled
* * * * *
0A82 Saps; thumbcuffs, thumbscrews, leg irons, shackles, and
handcuffs; specially designed implements of torture; straight jackets,
plastic handcuffs, police helmets and shields; and parts and
accessories, n.e.s.
License Requirements
Reason for Control: CC
Control(s) and Country Chart
CC applies to entire entry--CC Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
0A84 Shotguns, barrel length 18 inches (45.72 cm) inches or over;
buckshot shotgun shells; and 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., including optical sighting devices
for firearms.
License Requirements
Reason for Control: CC, UN
Control(s) and Country Chart
CC applies to 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 Column 1
CC applies to shotguns with a barrel length over 24 in. (60.96 cm),
regardless of end-user--CC Column 2
CC applies to shotguns with a barrel length over 24 in. (60.96 cm) if
for sale or resale to police or law enforcement--CC Column 3
UN applies to entire entry--UN Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A [[Page 25477]]
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
0A86 Shotgun shells, except buckshot shotgun shells, and parts.
License Requirements
Reason for Control: UN
Control(s) and Country Chart
UN applies to entire entry--UN Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determinted in Final Rule)
List of Items Controlled
* * * * *
0A88 Conventional military steel helmets as described by 0A18.f.1; and
machetes.
License Requirements
Reason for Control: UN
Control(s) and Country Chart
UN applies to entire entry--UN Column 1
License Alternatives
License Exceptions
LVS: N/A
CSR: N/A
GBS: N/A
NSG: N/A
CIV: N/A
Special Comprehensive License: (To Be Determinted in Final Rule)
List of Items Controlled
* * * * *
B. Test, Inspection and Production Equipment
[Reserved]
C. Materials
[Reserved]
D. Software
[Reserved]
E. Technology
0E18 Technology for the development, production, or use of items
controlled by 0A18.b through 0A18.e.
License Requirements
Reason for Control: NS, RS, UN, AT
Control(s) and Country Chart
NS applies to entire entry--NS Column 1
RS applies to technology for the development, production or use of
items controlled by 0A18.c for RS reasons--RS Column 2
UN applies to entire entry--UN Column 1
AT applies to entire entry--AT Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: Yes
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
0E84 Technology for the development or production of shotguns
controlled by 0A84 and shotgun shells.
License Requirements
Reason for Control: CC, UN
Control(s) and Country Chart
CC applies to technology for the development or production of 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 Column 1
CC applies to technology for the development or production of shotguns
with a barrel length over 24 in. (60.96 cm), regardless of end-user--CC
Column 2
CC applies to technology for the development or production of shotguns
with a barrel length over 24 in. (60.96 cm) if for sale or resale to
police or law enforcement--CC Column 3
UN applies to entire entry--UN Column 1
License Alternatives
License Exceptions
NSG: N/A
CIV: N/A
TSR: N/A
Special Comprehensive License: (To Be Determined in Final Rule)
List of Items Controlled
* * * * *
Supplement No. 2 to Part 774--General Technology and Software Notes
(To Be Included With Publication of Final Rule)
Supplement No. 3 to Part 774--Definitions to the Commerce Control
List (To Be Included With Publication of Final Rule)
[FR Doc. 95-10994 Filed 5-10-95; 8:45 am]
BILLING CODE 3510-DT-P
