[Federal Register Volume 61, Number 234 (Wednesday, December 4, 1996)]
[Rules and Regulations]
[Pages 64272-64286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30502]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 732, 736, 740, 742, 744, 746, 748, 750, 752, 758, and
770
[Docket No. 961122325-6325-01]
RIN 0694-AB51
Revisions to the Export Administration Regulations: License
Exceptions
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises the Export Administration Regulations
(EAR) by reorganizing those License Exceptions that are referenced on
the Commerce Control List. These License Exceptions had been bundled
together in a single section, bearing a group symbol to be used for
export clearance purposes. This rule splits the list-based License
Exceptions into separate sections, each with its own clearance symbol.
This rule makes conforming changes throughout the EAR. Finally, this
rule makes corrections and clarifications to certain sections of the
EAR affected by the changes to the License Exceptions.
DATES: This rule is effective December 4, 1996.
FOR FURTHER INFORMATION CONTACT: Hillary Hess, Office of Exporter
Services, Bureau of Export Administration, Telephone: (202) 482-2440.
SUPPLEMENTARY INFORMATION:
Background
On March 25, 1996, the Bureau of Export Administration (BXA)
published an interim rule that revised the entire EAR (61 FR 12714).
Prior to that date, on May 11, 1995, BXA had published a proposed
version of this comprehensive revision (60 FR 25267), and public
comments on that proposed rule significantly helped shape the interim
rule. Public comments on the proposed rule indicated that the number of
License Exceptions was too high and generally supported combining
similar License Exceptions. In response to these comments, BXA
consolidated single License Exceptions into ``groupings.'' Exporters
used the grouping symbol as a certification on their shipping
documents; each single License Exception also bore a symbol, for
optional use in recordkeeping and ease of distinguishing among separate
sets of provisions.
Public comments on the interim rule, however, generally contained
objections to the consolidation of those License Exceptions found on
the Commerce Control List (CCL). These License Exceptions included the
following: Limited Value Shipments (LVS), Shipments to Group B
Countries (GBS), Civil End-users (CIV), Technology and Software under
Restriction (TSR), and Computers (CTP); they were consolidated into the
``list-based'' License Exception section and exporters shipping under
any of the five used the grouping symbol ``LST'' for export clearance
purposes. Many exporters with automated processes found that using a
grouping symbol added an additional step to their programs; others
simply found using the grouping more cumbersome. While groupings of the
other, more transaction-based License Exceptions did not elicit the
same objections, exporters indicated that having additional acronyms
for optional recordkeeping use, but not for export clearance, was more
confusing than convenient.
Consequently, this rule splits or ``debundles'' the list-based
License
[[Page 64273]]
Exceptions, putting each in its own section. Each License Exception
symbol for export clearance documents matches that on the CCL (i.e.,
LVS); the grouping symbol ``LST'' disappears. Other groupings remain
unchanged, except that this rule removes any acronyms that are not used
for clearance purposes. This rule also drops the term ``grouping'' in
favor of calling each section a License Exception. Specific sets of
terms and conditions, formerly referred to as ``License Exceptions,''
are termed ``provisions.'' Any references throughout the EAR to meeting
all terms and conditions of License Exceptions should be understood to
mean meeting all applicable terms and conditions.
A License Exception may contain one, two, or more sets of terms and
conditions; and to use a given License Exception you must meet all the
terms and conditions of one such set. For example, if you meet all the
terms and conditions of paragraph 740.5(a) of the EAR for One-for-One
Replacement of Parts, you may export or reexport under that paragraph
even though you do not meet all the terms and conditions of paragraph
740.5(b) of the EAR for Servicing and Replacement. The correct symbol
for use on a required SED in this case is RPL. As an additional
example, if you meet all the terms and conditions of paragraph 740.8(d)
of the EAR for the General Software Note and mass market software, you
may export or reexport under that paragraph even though you do not meet
all the terms and conditions of paragraph 740.8(a) of the EAR for
Operation Technology and Software, paragraph 740.8(b) of the EAR for
Sales Technology, or paragraph 740.8(c) of the EAR for Software
Updates.
Finally, this rule makes certain corrections and clarifications to
sections of the EAR affected by the changes to the License Exceptions
part. This rule clarifies certain provisions on the availability of
License Exceptions LVS, GBS, CIV, and TSR. This rule removes Laos and
Cambodia from Computer Tier 2 and adds them to Computer Tier 3 in
License Exception CTP; adds Hong Kong, New Zealand, and Taiwan to the
list of countries that are defined as ``cooperating'' for purposes of
License Exception GOV; changes Country Group A:4 to A:1, Iceland, or
New Zealand in License Exception TMP; adds Iceland to the list of
countries eligible to receive operation and sales technology and
software even when that technology or software pertains to otherwise
restricted nuclear end-uses in Sec. 744.2; and adds CTP to the list of
those License Exceptions requiring a Destination Control Statement in
Sec. 758.6. This rule also corrects certain cross-references that were
incorrect in the March 25 rule.
Although the Export Administration Act (EAA) expired on August 20,
1994, the President invoked the International Emergency Economic Powers
Act and continued in effect, to the extent permitted by law, the
provisions of the EAA and the EAR in Executive Order 12924 of August
19, 1994, as extended by the President's notice of August 15, 1995 (60
FR 42767) and August 14, 1996 (61 FR 42527).
Rulemaking Requirements
1. This final rule has been determined to be not significant for
purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to nor shall a person be subject to a penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a currently valid OMB Control Number. This rule
involves collections of information subject to the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501 et seq.). These collections have been
approved by the Office of Management and Budget under control numbers
0694-0023, 0694-0029, and 0694-0088.
3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 12612.
4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military and foreign affairs
function of the United States. Section 13(b) of the EAA, cite, does not
require that this rule be published in proposed form because this rule
does not impose a new control. Further, no other law requires that a
notice of proposed rulemaking and an opportunity for public comment be
given for this rule. Because a notice of proposed rulemaking and an
opportunity for public comment are not required to be given for this
rule by 5 U.S.C. 553, or by any other law, the analytical requirements
of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are
inapplicable.
Therefore, this regulation is issued in final form. Although there
is no formal comment period, public comments on this regulation are
welcome on a continuing basis. Comments should be submitted to Hillary
Hess, Regulatory Policy Division, Office of Exporter Services, Bureau
of Export Administration, Department of Commerce, P.O. Box 273,
Washington, DC 20044.
List of Subjects
15 CFR Parts 732, 740, 748, 750, 752 and 758
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Parts 736, 742 and 770
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.
Accordingly, the Export Administration Regulations (15 CFR parts
730-799A) are amended as follows:
1. The authority citation for 15 CFR part 732 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995); and Notice of August 14,
1996 (61 FR 42527).
2. The authority citation for 15 CFR part 736 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; E.O. 12938, 59
FR 59099, 3 CFR, 1994 Comp., p. 950; Notice of August 15, 1995 (60
FR 42767, August 17, 1995; and Notice of August 14, 1996 (61 FR
42527).
3. The authority citation for 15 CFR part 740 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995); and Notice of August 14,
1996 (61 FR 42527).
4. The authority citation for 15 CFR part 742 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
18 U.S.C. 2510 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a;
E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58
FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12924, 59 FR 43437, 3 CFR,
1994 Comp., p. 917; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; Notice of August 15, 1995 (60 FR 42767, August 17, 1995); and
Notice of August 14, 1996 (61 FR 42527).
5. The authority citation for 15 CFR part 744 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 3201 et seq.;
[[Page 64274]]
42 U.S.C. 2139a; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179;
E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12924, 59
FR 43437, 3 CFR, 1994 Comp., p. 917; E.O. 12938, 59 FR 59099, 3 CFR,
1994 Comp., p. 950; Notice of August 15, 1995 (60 FR 42767, August
17, 1995); and Notice of August 14, 1996 (61 FR 42527).
6. The authority citation for 15 CFR part 746 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 287c; 22 U.S.C. 6004; E.O. 12918, 59 FR 28205, 3 CFR, 1994
Comp., p. 899; E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917;
Notice of August 15, 1995 (60 FR 42767, August 17, 1995); and Notice
of August 14, 1996 (61 FR 42527).
7. The authority citation for 15 CFR part 748 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995); and Notice of August 14,
1996 (61 FR 42527).
8. The authority citation for 15 CFR part 750 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995); E.O. 12981, 60 FR 62981;
and Notice of August 14, 1996 (61 FR 42527).
9. The authority citation for 15 CFR part 752 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995); and Notice of August 14,
1996 (61 FR 42527).
10. The authority citation for 15 CFR part 758 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995); and Notice of August 14,
1996 (61 FR 42527).
11. The authority citation for 15 CFR part 770 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995); and Notice of August 14,
1996 (61 FR 42527).
PART 732--[AMENDED]
Sec. 732.2 [Amended]
12. In Sec. 732.2, paragraph (f)(1)(ii) is amended by revising the
reference to ``License Exception TSR at Sec. 740.3(d) of the EAR'' to
read ``License Exception TSR in Sec. 740.6 of the EAR''.
Sec. 732.3 [Amended]
13. In Sec. 732.3, paragraph (f)(1)(ii) is amended by revising the
reference to ``License Exception TSR described Sec. 740.19 of the EAR''
to read ``License Exception TSR in Sec. 740.6 of the EAR''.
14. Section 732.4 is amended by revising paragraph (b)(3)(iii) to
read as follows:
Sec. 732.4 Steps regarding License Exceptions.
* * * * *
(b) * * *
(3) * * *
(iii) License Exceptions TMP, RPL, BAG, AVS, GOV, and TSU authorize
exports notwithstanding the provisions of the CCL. List-based License
Exceptions (LVS, GBS, CIV, TSR, and CTP) are available only to the
extent specified on the CCL. Part 740 of the EAR provides authorization
for reexports only to the extent each License Exception expressly
authorizes reexports. License Exception APR authorizes reexports only.
* * * * *
15. Section 732.5 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 732.5 Steps regarding Shipper's Export Declaration, Destination
Control Statements, recordkeeping, license applications, and other
requirements.
(a) * * *
(2) License Exception symbol. You must enter on any required SED
the letter code (e.g., LVS, TMP) of the License Exceptions under which
you are exporting. In the case of License Exceptions LVS, GBS, and CIV,
the ECCN of the item being exported must also be entered when an SED is
required. Please refer to Sec. 758.3 of the EAR for detailed
information on use of SEDs.
* * * * *
PART 736--[AMENDED]
16. Section 736.2 is amended by revising paragraphs
(b)(3)(ii)(A)(1) and (b)(3)(ii)(B)(1) to read as follows:
Sec. 736.2 General prohibitions and determination of applicability.
* * * * *
(b) * * *
(3) * * *
(ii) * * *
(A) * * *
(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 in Sec. 740.6 of
the EAR, and
* * * * *
(B) * * *
(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 in
Sec. 740.6 of the EAR, and
* * * * *
PART 740--[AMENDED]
17. Part 740 is amended:
a. By revising Sec. 740.1, paragraphs (c) and (d) (1)
b. By revising Sec. 740.2, paragraphs (a)(5) and (a)(6);
c. By revising Sec. 740.3;
d. By redesignating Secs. 740.4 through 740.11 as Secs. 740.8
through 740.15;
e. By adding new Secs. 740.4 through 740.7;
f. By revising newly designated Secs. 740.8 through 740.12.
Sec. 740.1 Introduction.
* * * * *
(c) License Exception symbols. Each License Exception bears a three
letter symbol that will be used for export clearance purposes (see
paragraph (d) of this section).
(d) Shipper's Export Declaration--(1) Clearing exports under
License Exceptions. You must enter on any required Shipper's Export
Declaration (SED) the letter code (e.g., LVS, TMP) of the License
Exception(s) under which you are exporting. In the case of License
Exceptions LVS, GBS, and CIV, the ECCN of the item being exported must
also be entered. Please refer to Sec. 758.3 of the EAR for the use of
SEDs.
* * * * *
Sec. 740.2 Restrictions on all License Exceptions.
(a) * * *
(5) The item is for surreptitious interception of wire or oral
communications controlled under ECCN 5A980, unless you are a U.S.
Government agency (see Sec. 740.10(b)(2)(ii) of this part, Governments
(License Exception 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 the EAR and you are not shipping to Iceland, New Zealand,
or countries listed in Country Group A:1 (see Supplement No. 1 to part
740), unless the shipment is authorized under License Exception BAG,
Sec. 740.13(e) of this part (shotguns and shotgun shells).
* * * * *
Sec. 740.3 Shipments of Limited Value (LVS).
(a) Scope. License Exception LVS authorizes the export and reexport
in a single shipment of eligible commodities as identified by ``LVS -
$(value limit)'' on the CCL.
[[Page 64275]]
(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. 740.3 means a communication from a person in a foreign country, or
that person's representative, expressing an intent to import
commodities from the exporter. Although all of the details of the order
need not be finally determined at the time of export, terms relating to
the kinds and quantities of the commodities to be exported, as well as
the selling prices of these commodities, must be finalized before the
goods can be exported under License Exception LVS.
(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 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.
(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. The total value of
exports per calendar year to the same ultimate or intermediate
consignee of commodities classified under a single ECCN may not exceed
12 times the LVS value limit for that ECCN; however, there is no
restriction on the number of shipments provided that value is not
exceeded. 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 dollar value limit specified for that entry.
Example to paragraph (d)(3): An order includes commodities
valued at $8,000. The order consists of commodities controlled under
two ECCN entries, each having an LVS value limit of $5000.
Commodities in the order controlled under one ECCN are valued at
$3,500 while those controlled under the other ECCN are valued at
$4,500. Since the net value of the commodities controlled under each
entry falls within the LVS dollar value limits applicable to that
entry, the order may be shipped under this License Exception.
(4) Prohibition against evasion of license requirements. Any
activity involving the use of this License Exception to evade license
requirements is prohibited. Such devices include, but are not limited
to, the splitting or structuring of orders to meet applicable LVS
dollar value limits, as prohibited by paragraphs (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 Shipments to Country Group B countries (GBS).
License Exception GBS authorizes exports and reexports to Country
Group B (see Supplement No. 1 to part 740) of those commodities
controlled to the ultimate destination for national security reasons
only and identified by ``GBS--Yes'' on the CCL.
Sec. 740.5 Civil end-users (CIV).
License Exception CIV authorizes exports and reexports controlled
to the ultimate destination for national security reasons only and
identified by ``CIV--Yes'' on the CCL, provided the items are destined
to civil end-users for civil end-uses in Country Group D:1. (See
Supplement No. 1 to part 740.) CIV may not be used for exports and
reexports to military end-users or to known military uses. Such exports
and reexports will continue to require a license. In addition to
conventional military activities, military uses include any
proliferation activities described and prohibited by part 744 of the
EAR. A license is also required for transfer to military end-users or
end-uses in eligible countries of items exported under CIV.
Sec. 740.6 Technology and software under restriction (TSR).
(a) Scope. License Exception TSR permits exports and reexports of
technology and software controlled to the ultimate destination for
national security reasons only and identified by ``TSR--Yes'' in
entries on the CCL, provided the software or technology is destined to
Country Group B. (See Supplement No. 1 to part 740.) A written
assurance is required from the consignee before exporting or
reexporting under this License Exception.
(1) Required assurance for export of technology. You may not export
or reexport technology under this License Exception until you have
received from the importer a written assurance that, without a BXA
license or License Exception, the importer will not:
[[Page 64276]]
(i) Reexport or release the technology to a national of a country
in Country Groups D:1 or E:2; or
(ii) Export to Country Groups D:1 or E:2 the direct product of the
technology, if such foreign produced direct product is subject to
national security controls as identified on the CCL (See General
Prohibition Three, Sec. 736.2(b)(3) of the EAR); or
(iii) If the direct product of the technology is a complete plant
or any major component of a plant, export to Country Groups D:1 or E:2
the direct product of the plant or major component thereof, 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. You may not export
or reexport software under this License Exception until you have
received from the importer a written assurance that, without a BXA
license or License Exception, the importer will neither:
(i) Reexport or release the software or the source code for the
software to a national of a country in Country Groups D:1 or E:2; nor
(ii) Export to Country Groups D:1 or E:2 the direct product of the
software, if such foreign produced direct product is subject to
national security controls as identified on the CCL. (See General
Prohibition Three, Sec. 736.2(b)(3) of the EAR).
(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 assurances. An assurance
included in a licensing agreement is acceptable only if the agreement
specifies that the assurance will be honored even after the expiration
date of the licensing agreement. If such a written assurance is not
received, License Exception TSR is not applicable and a license is
required. The license application must include a statement explaining
why assurances could not be obtained.
(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. 740.7 Computers (CTP).
(a) Scope. License Exception CTP authorizes exports and reexports
of computers and specially designed components therefor, exported or
reexported separately or as part of a system, and related equipment
therefor when exported or reexported with these computers as part of a
system, for consumption in Computer Tier countries as provided by this
section. You may not use this License Exception to export or reexport
items that you know will be used to enhance the CTP beyond the
eligibility limit allowed to your country of destination. When
evaluating your computer to determine License Exception CTP
eligibility, use the CTP parameter to the exclusion of other technical
parameters for computers classified under ECCN 4A003, except of
parameters specified as Missile Technology (MT) concerns, 4A003.e
(equipment performing analog-to-digital conversions exceeding the
limits in ECCN 3A001.a.5), and graphic accelerators or graphic
coprocessors exceeding a ``3-D vector rate'' of 10,000,000. This
License Exception does not authorize export or reexport of such graphic
accelerators or coprocessors, or of computers controlled for MT
reasons.
(b) Computer Tier 1--(1) Eligible countries. The countries that are
eligible to receive exports and reexports under this License Exception
are Australia, Austria, Belgium, Denmark, Finland, France, Germany,
Greece, the Holy See, Iceland, Ireland, Italy, Japan, Liechtenstein,
Luxembourg, Mexico, Monaco, Netherlands, New Zealand, Norway, Portugal,
San Marino, Spain, Sweden, Switzerland, Turkey, and the United Kingdom.
(2) Eligible Computers. The computers eligible for License
Exception CTP are those with a CTP greater than 2,000 MTOPS.
(c) Computer Tier 2--(1) Eligible countries. The countries that are
eligible to receive exports under this License Exception include
Antigua and Barbuda, Argentina, Bahamas, Barbados, Bangladesh, Belize,
Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei, Burkina Faso, Burma,
Burundi, Cameroon, Cape Verde, Central Africa, Chad, Chile, Colombia,
Congo, Costa Rica, Cote d'Ivoire, Cyprus, Czech Republic, Dominica,
Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Eritrea,
Ethiopia, Fiji, Gabon, Gambia (The), Ghana, Grenada, Guatemala, Guinea,
Guinea-Bissau, Guyana, Haiti, Honduras, Hong Kong, Hungary, Indonesia,
Jamaica, Kenya, Kiribati, Korea (Republic of), Lesotho, Liberia,
Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands,
Mauritius, Micronesia (Federated States of), Mozambique, Namibia,
Nauru, Nepal, Nicaragua, Niger, Nigeria, Palau, Panama, Papua New
Guinea, Paraguay, Peru, Philippines, Poland, Rwanda, St. Kitts & Nevis,
St. Lucia, St. Vincent and Grenadines, Sao Tome & Principe, Senegal,
Seychelles, Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon
Islands, Somalia, South Africa, Sri Lanka, Surinam, Swaziland, Taiwan,
Tanzania, Togo, Tonga, Thailand, Trinidad and Tobago, Tuvalu, Uganda,
Uruguay, Venezuela, Western Sahara, Western Samoa, Zaire, Zambia, and
Zimbabwe.
(2) Eligible computers. The computers eligible for License
Exception CTP are those having a Composite Theoretical Performance
(CTP) greater than 2000, but equal to or less than 10,000 Millions of
Theoretical Operations Per Second (MTOPS).
(d) Computer Tier 3--(1) Eligible countries. The countries that are
eligible to receive exports and reexports under this License Exception
are Afghanistan, Albania, Algeria, Andorra, Angola, Armenia,
Azerbaijan, Bahrain, Belarus, Bosnia & Herzegovina, Bulgaria, Cambodia,
China (People's Republic of), Comoros, Croatia, Djibouti, Egypt,
Estonia, Georgia, India, Israel, Jordan, Kazakhstan, Kuwait,
Kyrgyzstan, Laos, Latvia, Lebanon, Lithuania, Macedonia (The Former
Yugoslav Republic of), Mauritania, Moldova, Mongolia, Morocco, Oman,
Pakistan, Qatar, Romania, Russia, Saudi Arabia, Serbia & Montenegro,
Tajikistan, Tunisia, Turkmenistan, Ukraine, United Arab Emirates,
Uzbekistan, Vanuatu, Vietnam, and Yemen.
(2) Eligible computers. The computers eligible for License
Exception CTP are those having a Composite Theoretical Performance
(CTP) greater than 2,000 Millions of Theoretical Operations Per Second
(MTOPS), but less than or equal to 7,000 MTOPS.
(3) Eligible exports. Only exports and reexports to permitted end-
users and end-uses located in countries in Computer Tier 3. License
Exception CTP does not authorize exports and reexports to Computer Tier
3 for military end-users and end-uses and nuclear, chemical,
biological, or missile end-users and end-uses defined in part 744 of
the EAR. Exports and reexports under this License Exception may not be
made to known military end-users or to known military end-uses or known
proliferation end-uses or end-users defined in part 744 of the EAR.
Such exports and reexports will continue to require a license and will
be considered on a case-by-case basis. Retransfers to
[[Page 64277]]
military end-users or end-uses and defined proliferation end-users and
end-uses in eligible countries are strictly prohibited without prior
authorization.
(e) Restrictions. (1) Computers eligible for License Exception CTP
may not be accessed either physically or computationally by nationals
of Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria, except that
commercial consignees described in Sec. 742.12 of the EAR are
prohibited only from giving such nationals user-accessible
programmability.
(2) Computers, software and specially designed technology eligible
for License Exception CTP may not be reexported/retransferred without
prior authorization from BXA i.e., a license, a permissive reexport,
another License Exception, or ``No License Required''. This restriction
must be conveyed to the consignee, via the Destination Control
Statement, see Sec. 758.6 of the EAR.
(f) Recordkeeping requirements. In addition to the recordkeeping
requirements in part 762 of the EAR, you must keep records of each
export under License Exception CTP. These records will be made
available to the U.S. Government on request. The records must include
the following information:
(1) Date of shipment;
(2) Name and address of the end-user and each intermediate
consignee;
(3) CTP of each computer in shipment;
(4) Volume of computers in shipment;
(5) Dollar value of shipment; and
(6) End-use.
Sec. 740.8 Temporary imports, exports, and reexports (TMP).
This License Exception authorizes various temporary exports and
reexports; exports and reexports of items temporarily in the United
States; and exports and reexports of beta test software.
(a) Temporary exports and reexports. (1) Scope. You may export and
reexport commodities and software for temporary use abroad (including
use in international waters) subject to the conditions and exclusions
described in paragraph (a)(4) of this section. Commodities and software
shipped as temporary exports or reexports under the provisions of this
paragraph (a) must be returned to the country from which they were
exported as soon as practicable but, except in circumstances described
in this section, no later than one year from the date of export. This
requirement does not apply if the commodities and software are consumed
or destroyed in the normal course of authorized temporary use abroad or
an extension or other disposition is permitted by the EAR or in writing
by BXA.
(2) Eligible commodities and software. The following commodities
and software are eligible to be shipped under this paragraph (a):
(i) Tools of trade. Usual and reasonable kinds and quantities of
commodities and software for use by employees of the exporter in a
lawful enterprise or undertaking of the exporter. Eligible commodities
and software may include, but are not limited to, such equipment as is
necessary to commission or service goods, provided that the equipment
is appropriate for this purpose and that all goods to be commissioned
or serviced are of foreign origin, or if subject to the EAR, have been
legally exported or reexported. The commodities and software must
remain under the effective control of the exporter or the exporter's
employee. The shipment of commodities and software may accompany the
individual departing from the United States or may be shipped
unaccompanied within one month before the individual's departure from
the United States, or at any time after departure. No tools of the
trade may be taken to Country Group E:2, and only equipment necessary
to commission or service goods may be taken as tools of trade to
Country Group D:1. (See Supplement No. 1 to part 740.)
(ii) Kits consisting of replacement parts. Kits consisting of
replacement parts may be exported or reexported to all destinations,
except Country Group E:2 (see Supplement No. 1 to part 740), provided
that:
(A) The parts would qualify for shipment under paragraph
(a)(2)(ii)(C) of this section if exported as one-for-one replacements;
(B) The kits remain under effective control of the exporter or an
employee of the exporter; and
(C) All parts in the kit are returned, except that one-for-one
replacements may be made in accordance with the requirements of License
Exception RPL and the defective parts returned (see ``parts'',
Sec. 740.9(a) of this part).
(iii) Exhibition and demonstration in Country Group B. Commodities
and software for exhibition or demonstration in Country Group B (see
Supplement No. 1 to part 740) may be exported or reexported under this
provision provided that the exporter maintains ownership of the
commodities and software while they are abroad and provided that the
exporter, an employee of the exporter, or the exporter's designated
sales representative retains effective control over the commodities and
software while they are abroad. The commodities and software may not be
used for their intended purpose while abroad, except to the minimum
extent required for effective demonstration. The commodities and
software may not be exhibited or demonstrated at any one site more than
120 days after installation and debugging, unless authorized by BXA.
However, before or after an exhibition or demonstration, pending
movement to another site, return to the United States or the foreign
reexporter, or BXA approval for other disposition, the commodities and
software may be placed in a bonded warehouse or a storage facility
provided that the exporter retains effective control over their
disposition. The export documentation for this type of transaction must
show the U.S. exporter as ultimate consignee, in care of the person who
will have control over the commodities and software abroad.
(iv) Inspection and calibration. Commodities to be inspected,
tested, calibrated or repaired abroad.
(v) Containers. Containers for which another License Exception is
not available and that are necessary for export of commodities.
However, this ``containers'' provision does not authorize the export of
the container's contents, which, if not exempt from licensing, must be
separately authorized for export under either a License Exception or a
license.
(vi) Broadcast material. (A) Video tape containing program material
recorded in the country of export to be publicly broadcast in another
country.
(B) Blank video tape (raw stock) for use in recording program
material abroad.
(vii) Assembly in Mexico. Commodities to be exported to Mexico
under Customs entries that require return to the United States after
processing, assembly, or incorporation into end products by companies,
factories, or facilities participating in Mexico's in-bond
industrialization program (Maquiladora), provided that all resulting
end-products (or the commodities themselves) are returned to the United
States.
(viii) News media. (A) Commodities necessary for news-gathering
purposes (and software necessary to use such commodities) may accompany
``accredited'' news media personnel (i.e., persons with credentials
from a news gathering or reporting firm) to Country Groups D:1 or E:2
(see Supplement No. 1 to part 740) if the commodities:
(1) Are retained under ``effective control'' of the exporting news
gathering firm;
[[Page 64278]]
(2) Remain in the physical possession of the news media personnel.
The term physical possession for purposes of this paragraph
(a)(2)(viii), news media, is defined as maintaining effective measures
to prevent unauthorized access (e.g., securing equipment in locked
facilities or hiring security guards to protect the equipment); and
(3) Are removed with the news media personnel at the end of the
trip.
(B) When exporting under this paragraph (a)(2)(viii) from the
United States, the exporter must send a copy of the packing list or
similar identification of the exported commodities, to: U.S. Department
of Commerce, Bureau of Export Administration, Office of Enforcement
Support, Room H4069, 14th Street and Constitution Avenue, N.W.,
Washington, DC 20230, or any of its field offices, specifying the
destination and estimated dates of departure and return. The Office of
Export Enforcement (OEE) may spot check returns to assure that the
temporary exports and reexports provisions of this License Exception
are being used properly.
(C) Commodities or software necessary for news-gathering purposes
that accompany news media personnel to all other destinations shall be
exported or reexported under paragraph (a)(2)(i), tools of trade, of
this section if owned by the news gathering firm, or if they are
personal property of the individual news media personnel. Note that
paragraphs (a)(2)(i), tools of trade and (a)(2)(viii), news media, of
this section do not preclude independent ``accredited'' contract
personnel, who are under control of news gathering firms while on
assignment, from utilizing these provisions, provided that the news
gathering firm designate an employee of the contract firm to be
responsible for the equipment.)
(3) Special restrictions--(i) Destinations. (A) No commodity or
software may be exported to Country Group E:2 (see Supplement No. 1 to
part 740) except as permitted by paragraph (a)(2)(viii), news media, of
this section;
(B) No commodity or software may be exported to Country Group D:1
(see Supplement No. 1 to part 740) except:
(1) Commodities and software exported under paragraph (a)(2)(viii),
news media, of this section;
(2) Commodities and software exported under paragraph (a)(2)(i),
tools of trade, of this section; and
(3) Commodities exported as kits of replacement parts, consistent
with the requirements of paragraph (a)(2)(ii) of this section.
(C) These destination restrictions apply to temporary exports to
and for use on any vessel, aircraft or territory under ownership,
control, lease, or charter by any country in Country Group D:1 or E:2,
or any national thereof. (See Supplement No. 1 to part 740.)
(ii) Ineligible commodities or software. Commodities or software
that will be used outside of Country Group A:1 (see Supplement No. 1 to
part 740), Iceland, or New Zealand, either directly or indirectly in
any sensitive nuclear activity as described in Sec. 744.2 of the EAR
may not be exported or reexported to any destination under the
temporary exports and reexports provisions of this License Exception.
(iii) Use or disposition. No commodity or software may be exported
or reexported under this paragraph (a) if:
(A) An order to acquire the commodity or software has been received
before shipment;
(B) The exporter has prior knowledge that the commodity or software
will stay abroad beyond the terms described in this paragraph (a); or
(C) The commodity or software is for lease or rental abroad.
(4) Return or disposal of commodities and software. All commodities
and software exported or reexported under these provisions 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 so exported, or shall be
disposed of or retained in one of the following ways:
(i) Permanent export or reexport. If the exporter or the reexporter
wishes to sell or otherwise dispose of the commodities or software
abroad, except as permitted by this or other applicable License
Exception, the exporter must request authorization by submitting a
license application to BXA at the address listed in part 748 of the
EAR. (See part 748 of the EAR for more information on license
applications.) The request should comply with all applicable provisions
of the EAR covering export directly from the United States to the
proposed destination. The request must also be supported by any
documents that would be required in support of an application for
export license for shipment of the same commodities or software
directly from the United States to the proposed destination. BXA will
advise the exporter of its decision.
(ii) Use of a license. An outstanding license may also be used to
dispose of commodities or software covered by the provisions of this
paragraph (a), provided that the outstanding license authorizes direct
shipment of the same commodity or software to the same new ultimate
consignee in the new country of destination.
(iii) Authorization to retain abroad beyond one year. If the
exporter wishes to retain a commodity or software abroad beyond the 12
months authorized by paragraph (a) of this section, the exporter must
request authorization by submitting Form BXA-748P, Multipurpose
Application, 90 days prior to the expiration of the 12 month period.
The request must be sent to BXA at the address listed in part 748 of
the EAR and should include the name and address of the exporter, the
date the commodities or software were exported, a brief product
description, and the justification for the extension. If BXA approves
the extension request, the exporter will receive authorization for a
one-time extension not to exceed six months. BXA normally will not
allow an extension for commodities or software that have been abroad
more than 12 months, nor will a second six month extension be
authorized. Any request for retaining the commodities or software
abroad for a period exceeding 18 months must be made in accordance with
the requirements of paragraph (a)(4)(i) of this section.
(5) Reexports. Commodities and software legally exported from the
United States may be reexported to a new country(ies) of destination
under this paragraph (a) provided its terms and conditions are met and
the commodities and software are returned to the country from which the
reexport occurred.
(b) Exports of items temporarily in the United States: Scope. The
provisions of this paragraph (b) describe the conditions for exporting
foreign-origin items temporarily in the United States. The provisions
include the export of items moving in transit through the United
States, imported for display at a U.S. exhibition or trade fair,
returned because unwanted, or returned because refused entry.
Note 1 to paragraph (b) of this section: A commodity withdrawn
from a bonded warehouse in the United States under a ``withdrawal
for export'' customs entry is considered as ``moving in transit''.
It is not considered as ``moving in transit'' if it is withdrawn
from a bonded warehouse under any other type of customs entry or if
its transit has been broken for a processing operation, regardless
of the type of customs entry.
Note 2 to paragraph (b) of this section: Items shipped on board
a vessel or aircraft and passing through the United States from one
foreign country to another may be exported without a license
provided that (a)
[[Page 64279]]
while passing in transit through the United States, they have not
been unladen from the vessel or aircraft on which they entered, and
(b) they are not originally manifested to the United States.)
(1) Items moving in transit through the United States. Subject to
the following conditions, the provisions of paragraph (b)(1) of this
section authorize export of items moving in transit through the United
States under a Transportation and Exportation (T.& E.) customs entry or
an Immediate Exportation (I.E.) customs entry made at a U.S. Customs
Office.
(i) Items controlled for national security, nuclear proliferation,
missile technology, or chemical and biological weapons reasons may not
be exported to Country Group D:1, 2, 3, or 4 (see Supplement No. 1 to
part 740), respectively, under this paragraph (b)(1).
(ii) Items may not be exported to Country Group E:2 under this
paragraph (b)(1).
(iii) The following may not be exported in transit from the United
States under Sec. 740.8(b)(1):
(A) Commodities shipped to the United States under an International
Import Certificate, Form BXA-645P;
(B) Chemicals controlled under ECCN 1C350; or
(C) Horses for export by sea (refer to short supply controls in
part 754 of the EAR).
(iv) The provisions of paragraph (b)(1) apply to all shipments from
Canada moving in transit through the United States to any foreign
destination, regardless of the nature of the commodities or software or
their origin. For such shipments the customs office at the U.S. port of
export will require a copy of Form B-13, Canadian Customs Entry,
certified or stamped by Canadian customs authorities, except where the
shipment is valued at less than $50.00. (In transit shipments
originating in Canada that are exempt from U.S. licensing, or made
under a U.S. license or other applicable U.S. License Exception do not
require this form.) The commodity or software description, quantity,
ultimate consignee, country of ultimate destination, and all other
pertinent details of the shipment must be the same on a required Form
B-13, as on Commerce Form 7513, or when Form 7513 is not required, must
be the same as on Customs Form 7512. When there is a material
difference, a corrected Form B-13 authorizing the shipment is required.
(2) Items imported for display at U.S. exhibitions or trade fairs.
Subject to the following conditions, the provisions of this paragraph
(b)(2) authorize the export of items that were imported into the United
States for display at an exhibition or trade fair and were either
entered under bond or permitted temporary free import under bond
providing for their export and are being exported in accordance with
the terms of that bond.
(i) Items may be exported to the country from which imported into
the United States. However, items originally imported from Cuba or
North Korea may not be exported unless the U.S. Government had licensed
the import from that country.
(ii) Items may be exported to any destination other than the
country from which imported except:
(A) Items imported into the United States under an International
Import Certificate;
(B) Exports to Country Group E:2 (see Supplement No. 1 to part
740); or
(C) Exports to Country Group D:1, 2, 3, or 4 (see Supplement No. 1
to part 740) of items controlled for national security, missile
technology, chemical and biological weapons reasons, or nuclear
proliferation, respectively.
(3) Return of unwanted shipments. A foreign-origin item may be
returned to the country from which it was imported if its
characteristics and capabilities have not been enhanced while in the
United States. No foreign-origin items may be returned to Cuba, Libya,
or North Korea.
(4) Return of shipments refused entry. Shipments of items refused
entry by the U.S. Customs Service, the Food and Drug Administration, or
other U.S. Government agency may be returned to the country of origin,
except to:
(i) A destination in Cuba, Libya, or North Korea; or
(ii) A destination from which the shipment has been refused entry
because of the Foreign Assets Control Regulations of the Treasury
Department, unless such return is licensed or otherwise authorized by
the Treasury Department, Office of Foreign Assets Control (31 CFR part
500).
(c) Exports of beta test software. (1) Scope. The provisions of
paragraph (c) authorize exports and reexports to eligible countries of
beta test software intended for distribution to the general public.
(2) Eligible countries. The countries that are eligible to receive
exports and reexports are all countries except those in Country Group
E:2.
(3) Eligible software. All software that is controlled by the CCL
(part 774 of the EAR), and under Commerce licensing jurisdiction, is
eligible for export and reexport, subject to the restrictions in this
paragraph (c).
(4) Conditions for use. Any beta test software program may be
exported or reexported to eligible countries if all of the conditions
under this section are met:
(i) The software producer intends to market the software to the
general public after completion of the beta testing, as described in
the General Software Note found in Supplement No. 2 to part 774 of the
EAR;
(ii) The software producer provides the software to the testing
consignee free-of-charge or at a price that does not exceed the cost of
reproduction and distribution; and
(iii) The software is designed for installation by the end-user
without further substantial support from the supplier.
(5) Importer Statement. Prior to shipping any eligible software,
the exporter or reexporter must obtain the following statement from the
testing consignee, which may be included in a contract, non-disclosure
agreement, or other document that identifies the importer, the software
to be exported, the country of destination, and the testing consignee.
We certify that this beta test software will only be used for
beta testing purposes, and will not be rented, leased, sold,
sublicensed, assigned, or otherwise transferred. Further, we certify
that we will not transfer or export any product, process, or service
that is the direct product of the beta test software.
(6) Use limitations. Only testing consignees that provide the
importer statement required by paragraph (c)(5) of this section may
execute any software received.
(7) Return or disposal of software. All beta test software exported
must be destroyed abroad or returned to the exporter within 30 days of
the end of the beta test period as defined by the software producer or,
if the software producer does not define a test period, within 30 days
of completion of the consignee's role in the test. Among other methods,
this requirement may be satisfied by a software module that will
destroy the software and all its copies at or before the end of the
beta test period.
Sec. 740.9 Servicing and replacement of parts and equipment (RPL).
This License Exception authorizes exports and reexports associated with
one-for-one replacement of parts or servicing and replacement of
equipment.
(a) Parts--(1) Scope. The provisions of this paragraph (a)
authorize the export and reexport of one-for-one replacement parts for
previously exported equipment.
(2) One-for-one replacement of parts. (i) The term ``replacement
parts'' as
[[Page 64280]]
used in this section means parts needed for the immediate repair of
equipment, including replacement of defective or worn parts. (It
includes subassemblies but does not include test instruments or
operating supplies). (The term ``subassembly'' means a number of
components assembled to perform a specific function or functions within
a commodity. One example would be printed circuit boards with
components mounted thereon. This definition does not include major
subsystems such as those composed of a number of subassemblies.) Items
that improve or change the basic design characteristics, e.g., as to
accuracy, capability, performance or productivity, of the equipment
upon which they are installed, are not deemed to be replacement parts.
For kits consisting of replacement parts, consult Sec. 740.8(a)(2)(ii)
of this part.
(ii) Parts may be exported only to replace, on a one-for-one basis,
parts contained in commodities that were: legally exported from the
United States; legally reexported; or made in a foreign country
incorporating authorized U.S.-origin parts. The conditions of the
original U.S. authorization must not have been violated. Accordingly,
the export of replacement parts may be made only by the party who
originally exported or reexported the commodity to be repaired, or by a
party that has confirmed the appropriate authority for the original
transaction.
(iii) The parts to be replaced must either be destroyed abroad or
returned promptly to the person who supplied the replacement parts, or
to a foreign firm that is under the effective control of that person.
(3) Exclusions. (i) No replacement parts may be exported to repair
a commodity exported under a license if that license included a
condition that any subsequent replacement parts must be exported only
under a license.
(ii) No parts may be exported to be held abroad as spare parts or
equipment for future use. Replacement parts may be exported to replace
spare parts that were authorized to accompany the export of equipment,
as those spare parts are utilized in the repair of the equipment. This
will allow maintenance of the stock of spares at a consistent level as
parts are used.
(iii) No parts may be exported to any destination except Iceland,
New Zealand, or the countries listed in Country Group A:1 (see
Supplement No. 1 to part 740) if the item is to be incorporated into or
used in nuclear weapons, nuclear explosive devices, nuclear testing
related to activities described in Sec. 744.2(a) of the EAR, the
chemical processing of irradiated special nuclear or source material,
the production of heavy water, the separation of isotopes of source and
special nuclear materials, or the fabrication of nuclear reactor fuel
containing plutonium, as described in Sec. 744.2(a) of the EAR.
(iv) No replacement parts may be exported to Cuba, Iran, Iraq,
Sudan, Syria, Libya, or North Korea (countries designated by the
Secretary of State as supporting acts of international terrorism) if
the commodity to be repaired is an ``aircraft'' (as defined in part 772
of the EAR) or national security controlled commodity.
(v) The conditions described in this paragraph (a)(3) relating to
replacement of parts do not apply to reexports to a foreign country of
parts as replacements in foreign-origin products, if at the time the
replacements are furnished, the foreign-origin product is eligible for
export to such country under any of the License Exceptions in this part
or the exceptions in Sec. 734.4 of the EAR.
(4) Reexports. Parts exported from the United States may be
reexported to a new country of destination, provided that the
restrictions described in paragraphs (a)(2) and (3) of this section are
met. A party reexporting U.S.-origin one-for-one replacement parts
shall ensure that the commodities being repaired were shipped to their
present location in accordance with U.S. law and continue to be legally
used, and that either before or promptly after reexport of the
replacement parts, the replaced parts are either destroyed or returned
to the United States, or to the foreign firm in Country Group B (see
Supplement No. 1 to part 740) that shipped the replacement parts.
(b) Servicing and replacement--(1) Scope. The provisions of this
paragraph (b) authorize the export and reexport of items that were
returned to the United States for servicing and the replacement of
defective or unacceptable U.S.-origin commodities and software.
(2) Commodities and software sent to a United States or foreign
party for servicing.
(i) Definition. ``Servicing'' as used in this section means
inspection, testing, calibration or repair, including overhaul and
reconditioning. The servicing shall not have improved or changed the
basic characteristics, e.g., as to accuracy, capability, performance,
or productivity of the commodity or software as originally authorized
for export or reexport.
(ii) Return of serviced commodities and software. When the serviced
commodity or software is returned, it may include any replacement or
rebuilt parts necessary to its repair and may be accompanied by any
spare part, tool, accessory, or other item that was sent with it for
servicing.
(iii) Commodities and software imported from Country Group D:1
except the PRC. Commodities and software legally exported or reexported
to a consignee in Country Group D:1 (except the People's Republic of
China (PRC)) (see Supplement No. 1 to part 740) that are sent to the
United States or a foreign party for servicing may be returned to the
country from which it was sent, provided that both of the following
conditions are met:
(A) The exporter making the shipment is the same person or firm to
whom the original license was issued; and
(B) The end-use and the end-user of the serviced commodities or
software and other particulars of the transaction, as set forth in the
application and supporting documentation that formed the basis for
issuance of the license have not changed.
(iv) Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. No
repaired commodity or software may be exported or reexported to Cuba,
Iran, Iraq, Libya, North Korea, Sudan, or Syria.
(3) Replacements for defective or unacceptable U.S.-origin
equipment.
(i) Subject to the following conditions, commodities or software
may be exported or reexported to replace defective or otherwise
unusable (e.g., erroneously supplied) items.
(A) The commodity or software to be replaced must have been
previously exported or reexported in its present form under a license
or authorization granted by BXA.
(B) No commodity or software may be exported or reexported to
replace equipment that is worn out from normal use, nor may any
commodity or software be exported to be held in stock abroad as spare
equipment for future use.
(C) The replacement item may not improve the basic characteristic,
e.g., as to accuracy, capability, performance, or productivity, of the
equipment as originally approved for export or reexport under a license
issued by BXA.
(D) No shipment may be made to Cuba, Iran, Iraq, Libya, North
Korea, Sudan, or Syria, or to any other destination to replace
defective or otherwise unusable equipment owned or controlled by, or
leased or chartered to, a national of any of those countries.
(ii) Special conditions applicable to exports to Country Group B
and Country Group D:1. (See Supplement No. 1 to part 740.) In addition
to the general conditions in paragraph (b)(3)(i) of this section, the
following conditions apply
[[Page 64281]]
to exports or reexports of replacements for defective or unacceptable
U.S.-origin commodities or software to a destination in Country Group B
or Country Group D:1:
(A) By making such an export or reexport, the exporter represents
that all the requirements of this paragraph (b) have been met and
undertakes to destroy or return the replaced parts as provided in
paragraph (b)(3)(ii)(C) of this section.
(B) The defective or otherwise unusable equipment must be replaced
free of charge, except for transportation and labor charges. If
exporting to the countries listed in Country Group D:1 (except the
PRC), the exporter shall replace the commodity or software within the
warranty period or within 12 months of its shipment to the ultimate
consignee in the country of destination, whichever is shorter.
(C) The commodity or software to be replaced must either be
destroyed abroad or returned to the United States, or to a foreign firm
in Country Group B that is under the effective control of the U.S.
exporter, or to the foreign firm that is providing the replacement part
or equipment. The destruction or return must be effected before, or
promptly after, the replacement item is exported from the United
States.
(D) A party reexporting replacements for defective or unacceptable
U.S.-origin equipment must ensure that the commodities or software
being replaced were shipped to their present location in accordance
with U.S. law and continue to be legally used.
Sec. 740.10 Governments and international organizations (GOV).
This Licenses Exception authorizes exports and reexports for
international nuclear safeguards; U.S. government agencies or
personnel, and agencies of cooperating governments.
(a) International safeguards--(1) Scope. You may export and
reexport commodities or software to the International Atomic Energy
Agency (IAEA) and the European Atomic Energy Community (Euratom), and
reexports by IAEA and Euratom for official international safeguard use,
as follows:
(i) Commodities or software consigned to the IAEA at its
headquarters in Vienna, Austria, or field offices in Toronto, Ontario,
Canada or Tokyo, Japan for official international safeguards use. The
IAEA is an international organization that establishes and administers
safeguards designed to ensure that special nuclear materials and other
related nuclear facilities, equipment, and material are not diverted
from peaceful purposes to non-peaceful purposes.
(ii) Commodities or software consigned to the Euratom Safeguards
Directorate in Luxembourg, Luxembourg for official international
safeguards use. Euratom is an international organization of European
countries with headquarters in Luxembourg. Euratom establishes and
administers safeguards designed to ensure that special nuclear
materials and other related nuclear facilities, equipment, and material
are not diverted from peaceful purposes to non-peaceful purposes.
(iii) Commodities consigned to IAEA or Euratom may be reexported to
any country for IAEA or Euratom international safeguards use provided
that IAEA or Euratom maintains control of or otherwise safeguards the
commodities and returns the commodities to the locations described in
paragraphs (a)(1)(i) and (a)(1)(ii) of this section when they become
obsolete, are no longer required, or are replaced.
(iv) Commodity or software shipments may be made by commercial
companies under direct contract with IAEA or Euratom, or by Department
of Energy National Laboratories as directed by the Department of State
or the Department of Energy.
(v) The monitoring functions of IAEA and Euratom are not subject to
the restrictions on prohibited safeguarded nuclear activities described
in Sec. 744.2(a)(3) of the EAR.
(vi) When commodities or software originally consigned to IAEA or
Euratom are no longer in IAEA or Euratom official safeguards use, such
commodities may only be disposed of in accordance with the regulations
in the EAR.
(2) Exclusions. No computers with a CTP greater than 10,000 MTOPS
may be exported or reexported to countries listed in Computer Tiers 3
or 4. See Sec. 742.12 of the EAR for a complete list of the countries
within Computer Tiers 3 and 4.
(b) Governments--(1) Scope. The provisions of paragraph (b)
authorize exports and reexports of the items listed in paragraph (b)(2)
of this section to personnel and agencies of the U.S. Government or
agencies of cooperating governments.
(2) Eligibility--(i) Items for personal use by personnel and
agencies of the U.S. Government. This provision is available for items
in quantities sufficient only for the personal use of members of the
U.S. Armed Forces or civilian personnel of the U.S. Government
(including U.S. representatives to public international organizations),
and their immediate families and servants. Items for personal use
include household effects, food, beverages, and other daily
necessities.
(ii) Items for official use by personnel and agencies of the U.S.
Government. This provision is available for items consigned to and for
the official use of any agency of the U.S. Government.
(iii) Items for official use within national territory by agencies
of cooperating governments. This provision is available for all items
consigned to and for the official use of any agency of a cooperating
government within the territory of any cooperating government, except:
(A) Computers with a CTP greater than 10,000 MTOPS when destined
for Argentina, Hong Kong, South Korea, Singapore, or Taiwan;
(B) Items identified on the Commerce Control List as controlled for
missile technology (MT), chemical and biological warfare (CB), or
nuclear nonproliferation (NP) reasons; or
(C) Regional stability items controlled under Export Control
Classification Numbers (ECCNs) 6A002, 6A003, 6D102, 6E001, 6E002,
7D001, 7E001, 7E002, and 7E101, as described in Sec. 742.6(a)(1) of the
EAR.
(iv) Diplomatic and consular missions of a cooperating government.
This provision is available for all items consigned to and for the
official use of a diplomatic or consular mission of a cooperating
government located in any country in Country Group B (see Supplement
No. 1 to part 740), except:
(A) Computers with a CTP greater than 10,000 MTOPS when destined
for Argentina, Hong Kong, South Korea, Singapore, or Taiwan;
(B) Items identified on the Commerce Control List as controlled for
missile technology (MT), chemical and biological warfare (CB), or
nuclear nonproliferation (NP) reasons; or
(C) Regional stability items controlled under Export Control
Classification Numbers (ECCNs) 6A002, 6A003, 6D102, 6E001, 6E002,
7D001, 7E001, 7E002, and 7E101, as described in Sec. 742.6 (a)(1) of
the EAR.
(3) Definitions. (i) ``Agency of the U.S. Government'' includes all
civilian and military departments, branches, missions, government-owned
corporations, and other agencies of the U.S. Government, but does not
include such national agencies as the American Red Cross or
international organizations in which the United States participates
such as the Organization of American States. Therefore, shipments may
not be made to these non-government national or international agencies,
except as provided in paragraph (b)(2)(i) of this
[[Page 64282]]
section for U.S. representatives to these organizations.
(ii) ``Agency of a cooperating government'' includes all civilian
and military departments, branches, missions, and other governmental
agencies of a cooperating national government. Cooperating governments
are the national governments of countries listed in Country Group A:1
(see Supplement No. 1 to part 740) and the national governments of
Argentina, Austria, Finland, Hong Kong, Ireland, Korea (Republic of),
New Zealand, Singapore, Sweden, Switzerland, and Taiwan.
Sec. 740.11 Gift parcels and humanitarian donations (GFT).
(a) Gift parcels.--(1) Scope. The provisions of paragraph (a)
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.''
Note to paragraph (a) of this section: A gift parcel, within the
context of this paragraph (a), does not include multiple parcels
exported in a single shipment for delivery to individuals residing
in a foreign country. Such multiple gift parcels, if subject to the
General Prohibitions described in Sec. 734.2(b) of the EAR, must be
licensed by BXA. (See Supplement No. 2 to part 748 of the EAR for
licensing of multiple gift parcels).
(2) Commodity, value and other limitations.--(i) Eligible
commodities. The eligible commodities are as follows:
(A) The commodity must not be controlled for chemical and
biological weapons (CB), missile technology (MT), national security
(NS), or nuclear proliferation (NP) (see Commerce Control List, part
774 of the EAR); and
(B) The commodity must be of a type and in quantities normally
given as gifts between individuals.
(1) For Cuba, the only commodities that may be included in a gift
parcel are the following items: food, vitamins, seeds, medicines,
medical supplies and devices, hospital supplies and equipment,
equipment for the handicapped, clothing, personal hygiene items,
veterinary medicines and supplies, fishing equipment and supplies,
soap-making equipment, and in addition receive-only radio equipment for
reception of commercial/civil AM/FM and short wave publicly available
frequency bands, and batteries for such equipment.
(2) For all other destinations, eligible commodities include all
items described in paragraph (a)(2)(i)(B)(1) of this section as well as
all other items normally sent as gifts. Gold bullion, gold taels, and
gold bars are prohibited as are items intended for resale or reexport.
Example to paragraph (a) of this section. A watch or piece of
jewelry is normally sent as a gift. However, multiple watches,
either in one package or in subsequent shipments, would not 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.
(3) For purposes of paragraph (a)(2)(i)(B) of this section,
clothing is appropriate, except that export of military wearing apparel
to Country Group D:1 or E:2 under this License Exception is
specifically prohibited, regardless of whether all distinctive U.S.
military insignia, buttons, and other markings are removed.
(ii) Import requirements. The commodities must be acceptable in
type and quantity by the recipient country for import as gifts.
Commodities exceeding the import limits may not be included in gift
parcels.
(iii) Frequency. Except for gift parcels of food to Cuba, not more
than one gift parcel may be sent from the same donor to the same donee
in any one calendar month. Parties seeking authorization to exceed this
limit due to compelling humanitarian concerns (e.g., gifts of medicine
to relatives) should submit a license application (BXA-748P) with
complete justification.
(iv) Value. The combined total domestic retail value of all
commodities included in a gift parcel may not exceed $400, except for
gift parcels to Cuba where the value of non-food items may not exceed
$200. There is no dollar value limit on food contained in a gift parcel
to Cuba.
(3) How to export gift parcels. (i) A gift parcel must be sent
directly to the donee by the individual donor, or for such donor by a
commercial or other gift-forwarding service or organization. Each gift
parcel must show, on the outside wrapper, the name and address of the
donor, as well as the name and address of the donee, regardless of
whether sent by the donor or by a forwarding service.
(ii) Each parcel must have the notation ``GIFT--Export License Not
Required'' written on the addressee side of the package and the symbol
``GFT'' written on any required customs declaration.
(b) Humanitarian donations.--(1) Scope. The provisions of paragraph
(b) authorize exports by groups or organizations of donations to meet
basic human needs when those groups or organizations have experience in
maintaining a verifiable system of distribution that ensures delivery
to the intended beneficiaries.
(2) Basic human needs. Basic human needs are defined as those
requirements essential to individual well-being: health, food,
clothing, shelter, and education. These needs are considered to extend
beyond those of an emergency nature and those that meet direct needs
for mere subsistence.
(3) Eligible donors. Eligible donors are U.S. charitable
organizations that have an established record of involvement in
donative programs and experience in maintaining and verifying a system
of distribution to ensure delivery of commodities and software to the
intended beneficiaries. Eligible distribution arrangements may consist
of any one or more of the following:
(i) A permanent staff maintained in the recipient country to
monitor the receipt and distribution of the donations to the intended
beneficiaries;
(ii) Periodic spot-checks in the recipient country by members of
the exporter's staff; or
(iii) An agreement to utilize the services of a charitable
organization that has a monitoring system in place.
(4) Donations. To qualify for export under the provisions of this
paragraph (b), the items must be provided free of charge to the
beneficiary. The payment by the beneficiary, however, of normal
handling charges or fees levied by the importing country (e.g., import
duties, taxes, etc.) is not considered to be a cost to the beneficiary
for purposes of this paragraph (b).
(5) Ineligible commodities and software. The following commodities
and software are not eligible:
(i) Commodities and software controlled for national security,
chemical or biological weapons, and nuclear nonproliferation, missile
technology or crime control reasons (see Supplement No. 1 to part 774
of the EAR);
(ii) Exports for large-scale projects of the kind associated with
comprehensive economic growth, such as dams and hydroelectric plants;
or
(iii) Exports to Cuba of medical items excluded by Sec. 746.2(a)(3)
of the EAR.
[[Page 64283]]
(6) Eligible items. Eligible commodities and software are those
listed in Supplement No. 2 to part 740.
(7) Additional recordkeeping requirements. In addition to the
recordkeeping requirements in part 762 of the EAR, donors must keep
records containing the following information:
(i) The donor organization's identity and past experience as an
exporter of goods to meet basic human needs;
(ii) Past and current countries to which the donative programs have
been and are being directed, with particular reference to donative
programs in embargoed destinations;
(iii) Types of projects and commodities involved in the donative
programs;
(iv) Specific class(es) of beneficiaries of particular donated
goods intended to be exported under this License Exception; and
(v) Information concerning the source of funding for the donative
programs and the projected annual value of exports of humanitarian
donations.
Sec. 740.12 Technology and software--unrestricted (TSU). This License
Exception authorizes exports and reexports of operation technology and
software; sales technology and software; software updates (bug fixes);
and ``mass market'' software subject to the General Software Note
(a) Operation technology and software.--(1) Scope. The provisions
of paragraph (a) permit exports and reexports of operation technology
and software. ``Operation technology'' is the minimum technology
necessary for the installation, operation, maintenance (checking), and
repair of those products that are lawfully exported or reexported under
a license, a License Exception, or NLR. The ``minimum necessary''
operation technology does not include technology for development or
production and includes use technology only to the extent required to
ensure safe and efficient use of the product. Individual entries in the
software and technology subcategories of the CCL may further restrict
the export or reexport of operation technology.
(2) Provisions and destinations.--(i) Provisions. Operation
software may be exported or reexported provided that both of the
following conditions are met:
(A) The operation software is the minimum necessary to operate
equipment authorized for export or reexport; and
(B) The operation software is in object code.
(ii) Destinations. Operation software and technology may be
exported or reexported to any destination to which the equipment for
which it is required has been or is being legally exported or
reexported.
(b) Sales technology--(1) Scope. The provisions of paragraph (b)
authorize exports and reexports of sales technology. ``Sales
technology'' is data supporting a prospective or actual quotation, bid,
or offer to sell, lease, or otherwise supply any item.
(2) Provisions and destinations--(i) Provisions. Sales technology
may be exported or reexported provided that:
(A) The technology is a type customarily transmitted with a
prospective or actual quotation, bid, or offer in accordance with
established business practice; and
(B) Neither the export nor the reexport will disclose the detailed
design, production, or manufacture technology, or the means of
reconstruction, of either the quoted item or its product. The purpose
of this limitation is to prevent disclosure of technology so detailed
that the consignee could reduce the technology to production.
(ii) Destinations. Sales technology may be exported or reexported
to any destination.
Note: Neither this section nor its use means that the U.S.
Government intends, or is committed, to approve a license
application for any commodity, plant, software, or technology that
may be the subject of the transaction to which such quotation, bid,
or offer relates. Exporters are advised to include in any
quotations, bids, or offers, and in any contracts entered into
pursuant to such quotations, bids, or offers, a provision relieving
themselves of liability in the event that a license (when required)
is not approved by the Bureau of Export Administration.
(c) Software updates. The provisions of paragraph (c) 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 (original software). Such software
updates may be exported or reexported only to the same consignee to
whom the original software was exported or reexported, and such
software updates may not enhance the functional capacities of the
original software. Such software updates may be exported or reexported
to any destination to which the software for which they are required
has been legally exported or reexported.
(d) General Software Note: ``mass market'' software--(1) Scope. The
provisions of paragraph (d) authorize exports and reexports of ``mass
market'' software subject to the General Software Note (see Supplement
No. 2 to part 774 of the EAR; also referenced in this section).
(2) Provisions and destinations--(i) Destinations. The ``mass
market'' provisions of this paragraph (d) for software are available to
all destinations except Cuba, Iran, Libya, North Korea, Sudan, and
Syria.
(ii) Provisions. ``Mass market'' treatment is available for
software that is generally available to the public by being:
(A) Sold from stock at retail selling points, without restriction,
by means of:
(1) Over the counter transactions;
(2) Mail order transactions; or
(3) Telephone call transactions; and
(B) Designed for installation by the user without further
substantial support by the supplier.
17a. The introductory text of newly designated Sec. 740.14 is
revised to read as follows:
Sec. 740.14 Aircraft and vessels (AVS).
This License Exception authorizes departure from the United States
of foreign registry civil aircraft on temporary sojourn in the United
States and of U.S. civil aircraft for temporary sojourn abroad; the
export of equipment and spare parts for permanent use on a vessel or
aircraft; and exports to vessels or planes of U.S. or Canadian registry
and U.S. or Canadian Airlines' installations or agents. Generally, no
License Exception symbol is necessary for export clearance purposes;
however, when necessary, the symbol ``AVS'' may be used.
* * * * *
PART 742--[AMENDED]
18. Section 742.4 is amended by revising the last sentence of
paragraph (a) to read as follows:
Sec. 742.4 National security.
(a) License requirements. * * * License Exception GBS is available
for the export and reexport of certain national security controlled
items to Country Group B (see Sec. 740.4 and Supplement No. 1 to part
740 of the EAR).
* * * * *
19. In Sec. 742.12(a)(1), the reference in the fourth sentence to
``Sec. 743.3(e)'' is revised to read ``Sec. 740.7''.
20. Section 742.12 is amended by revising the last sentence of
paragraph (a)(2) to read as follows:
Sec. 742.12 High performance computers.
(a) * * *
(2) * * * Countries included in Computer Tiers 1, 2, and 3 are
listed in License Exception CTP in Sec. 740.7 of the EAR. Computer Tier
4 consists of Cuba,
[[Page 64284]]
Iran, Iraq, Libya, North Korea, Sudan, and Syria.
* * * * *
PART 744--[AMENDED]
21. Section 744.2 is amended by revising paragraph (c) to read as
follows:
Sec. 744.2 Restrictions on certain nuclear end-uses.
* * * * *
(c) Exceptions. Despite the prohibitions described in paragraphs
(a) and (b) of this section, you may export technology subject to the
EAR under the operation technology and software or sales technology and
software provisions of License Exception TSU (see Sec. 740.12 (a) and
(b)), but only to and for use in countries listed in Country Group A:1
(see Supplement No. 1 to part 740 of the EAR), Iceland and New Zealand.
Notwithstanding the provisions of part 740 of the EAR, the provisions
of Sec. 740.12 (a) and (b) will only overcome general prohibition five
for countries listed in Country Group A:1, Iceland and New Zealand.
PART 746--[AMENDED]
21. Section 746.2 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 746.2 Cuba.
(a) * * *
(1) License Exceptions. You may export without a license if your
transaction meets all the applicable terms and conditions of any of the
following License Exceptions. To determine the scope and eligibility
requirements, you will need to turn to the sections or specific
paragraphs of part 740 of the EAR (License Exceptions). Read each
License Exception carefully, as the provisions available for embargoed
countries are generally narrow.
(i) Temporary exports and reexports (TMP) by the news media (see
Sec. 740.8(a)(2)(viii) of the EAR).
(ii) Operation technology and software (TSU) for legally exported
commodities (see Sec. 740.12(a) of the EAR).
(iii) Sales technology (TSU) (see Sec. 740.12(b) of the EAR).
(iv) Software updates (TSU) for legally exported software (see
Sec. 740.12(c) of the EAR).
(v) Parts (RPL) for one-for-one replacement in certain legally
exported commodities (see Sec. 740.9(a) of the EAR).
(vi) Baggage (BAG) (see Sec. 740.13 of the EAR).
(vii) Governments and international organizations (GOV) (see
Sec. 740.10 of the EAR).
(viii) Gift parcels and humanitarian donations (GFT) (see
Sec. 740.11 of the EAR).
(ix) Items in transit (TMP) from Canada through the U.S. (see
Sec. 740.8(b)(1)(iv) of the EAR).
(x) Aircraft and vessels (AVS) for certain aircraft on temporary
sojourn (see Sec. 740.14(a) of the EAR).
* * * * *
23. Section 746.3 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 746.3 Iraq.
(a) * * *
(1) License Exceptions. You may export or reexport without a
license if your transaction meets all the applicable terms and
conditions of one of the following License Exceptions. Read each
License Exception carefully, as the provisions available for embargoed
countries are generally narrow.
(i) Baggage (BAG) (See Sec. 740.13 of the EAR).
(ii) Governments and international organizations (GOV) (See
Sec. 740.10 of the EAR).
* * * * *
24. Section 746.4 is amended by revising paragraph (b) to read as
follows:
Sec. 746.4 Libya.
* * * * *
(b) License requirements.
(1) Exports. OFAC and BXA both require a license for virtually all
exports (including transshipments) to Libya. Except as noted in
paragraph (b) of this section or specified in OFAC regulation, you may
not use any BXA License Exception or other BXA authorization to export
or transship to Libya. You will need a license from OFAC for all direct
exports and transshipments to Libya except those eligible for the
following BXA License Exceptions:
(i) Baggage (BAG) (see Sec. 740.13 of the EAR).
(ii) Governments and international organizations (GOV) (see
Sec. 740.11 of the EAR).
(iii) Gift parcels (GFT) (see Sec. 740.11(a) of the EAR).
(2) Reexports. You will need a license from BXA to reexport any
U.S.-origin item from a third country to Libya, any foreign-
manufactured item containing U.S.-origin parts, components or
materials, as defined in Sec. 734.2(b)(2) of the EAR, or any national
security-controlled foreign-produced direct product of U.S. technology
or software, as defined in Sec. 734.2(b)(3) of the EAR, exported from
the U.S. after March 12, 1982. You will need a license from BXA to
reexport all items subject to the EAR (see part 734 of the EAR) to
Libya, except:
(i) Food, medicines, medical supplies, and agricultural
commodities;
(ii) Reexports eligible for the following License Exceptions (read
each License Exception carefully, as the provisions available for
embargoed countries are generally narrow):
(A) Temporary exports and reexports (TMP): reexports by the news
media (see Sec. 740.8(a)(2)(viii) of the EAR).
(B) Operation technology and software (TSU) for legally exported
commodities (see Sec. 740.12(a) of the EAR).
(C) Sales technology (TSU) (see Sec. 740.12(b) of the EAR).
(D) Software updates (TSU) for legally exported software (see
Sec. 740.12(c) of the EAR).
(E) Parts (RPL) for one-for-one replacement in certain legally
exported commodities (Sec. 740.9(a) of the EAR).
(F) Baggage (BAG) (Sec. 740.13 of the EAR).
(G) Aircraft and vessels (AVS) for vessels only (see
Sec. 740.14(c)(1) of the EAR).
(H) Governments and international organizations (GOV) (see
Sec. 740.10 of the EAR).
(I) Gift parcels and humanitarian donations (GFT) (see Sec. 740.11
of the EAR).
* * * * *
25. Section 746.5 is amended by revising paragraphs (a)(1) and
(b)(1) to read as follows:
Sec. 746.5 North Korea.
(a) * * *
(1) License Exceptions. You may export without a license if your
transaction meets all the applicable terms and conditions of any of the
License Exceptions specified in this paragraph. To determine scope and
eligibility requirements, you will need to turn to the sections or
specific paragraphs of part 740 of the EAR (License Exceptions). Read
each License Exception carefully, as the provisions available for
embargoed countries are generally narrow.
(i) Temporary exports and reexports (TMP) by the news media (see
Sec. 740.8(a)(2)(viii) of the EAR).
(ii) Operation technology and software (TSU) for legally exported
commodities (see Sec. 740.12(a) of the EAR).
(iii) Sales technology (TSU) (see Sec. 740.12(b) of the EAR).
(iv) Software updates (TSU) for legally exported software (see
Sec. 740.12(c) of the EAR).
(v) Parts (RPL) for one-for-one replacement in certain legally
exported commodities (Sec. 740.9(a) of the EAR).
[[Page 64285]]
(vi) Baggage (BAG) (Sec. 740.13 of the EAR).
(vii) Aircraft and vessels (AVS) for fishing vessels under
governing international fishery agreements and foreign-registered
aircraft on temporary sojourn in the U.S.1 (see Sec. 740.14(a) and
(c)(1) of the EAR).
---------------------------------------------------------------------------
\1\ Export of U.S. aircraft on temporary sojourn or vessels is
prohibited, 44 CFR Ch. IV, Part 403 ``Shipping restrictions: North
Korea (T-2).''
---------------------------------------------------------------------------
(viii) Governments and international organizations (GOV) (see
Sec. 740.10 of the EAR).
(ix) Gift parcels and humanitarian donations (GFT) (see Sec. 740.11
of the EAR).
* * * * *
(b) * * *
(1) BXA will review on a case-by-case basis applications for export
of donated human-needs items listed in Supplement No. 2 to Part 740 of
the EAR that do not qualify for the humanitarian donation provisions of
License Exception GFT (see Sec. 740.11(b) of the EAR). Such
applications include single transactions involving exports to meet
emergency needs.
* * * * *
PART 748--[AMENDED]
26. Supplement No. 2 to part 748 is amended by revising the
introductory text of paragraphs (d), (e), and (p) to read as follows:
Supplement No. 2 to Part 748--Unique License Application Requirements
* * * * *
(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 for gift parcels in
License Exception GFT (See Sec. 740.11(a) of the EAR).
* * * * *
(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 the intransit provisions of License
Exception TMP (see Sec. 740.8(b)(1) of the EAR), you must provide the
following information with your license application:
* * * * *
(p) Temporary exports or reexports. If you are submitting a license
application for the temporary export or reexport of an item (not
eligible for the temporary exports and reexports provisions of License
Exception TMP (see Sec. 740.9(a) of the EAR)) you must include the
following certification in Block 24:
* * * * *
26. Supplement No. 5 to part 748 is amended by revising paragraph
(a)(6)(vii) to read as follows:
Supplement No. 5 to Part 748--U.S. Import Certificate and Delivery
Verification Procedure
* * * * *
(a) * * *
(6) * * *
(vii) Reexport or transshipment of items after delivery to U.S.
Items imported into the U.S. under the provisions of a U.S.
International Import Certificate may not be reexported to any
destination under the intransit provisions of License Exception TMP
(see Sec. 740.8(b)(1) of the EAR). However, all other provisions of the
EAR applicable to items of domestic origin shall apply to the reexport
of items of foreign origin shipped to the U.S. under a U.S.
International Import Certificate.
* * * * *
PART 750--[AMENDED]
28. Section 750.7 is amended by revising paragraph (h)(2) to read
as follows:
Sec. 750.7 Issuance of licenses.
* * * * *
(h) * * *
(2) Intransit within the United States. If you have been issued a
license authorizing an intransit shipment (that does not qualify for
the intransit provisions of License Exception TMP) 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.
* * * * *
PART 752--[AMENDED]
29. Section 752.5 is amended by revising the introductory text of
paragraph (c)(8)(i) to read as follows:
Sec. 752.5 Steps you must follow to apply for an SCL.
* * * * *
(c) * * *
(8) * * *
(i) Temporary exports. Proposed consignees that plan to exhibit or
demonstrate items in countries other than those in which they are
located or are authorized under an SCL, an approved Form BXA-752, or a
License Exception provision described in Sec. 740.8(a)(2)(iii) of the
EAR may obtain permission to do so by including the following
additional certification on company letterhead, and attaching it to
Form BXA-752.
* * * * *
PART 758--[AMENDED]
30. Section 758.1 is amended by revising the first sentence of
paragraph (d)(2)(vi) to read as follows:
Sec. 758.1 Export clearance requirements.
* * * * *
(d) * * *
(2) * * *
(vi) Software and technology. If you are exporting software or
technology, the export of which is authorized under the License
Exceptions in Sec. 740.6 or Sec. 740.12 of the EAR, you do not need to
make any notation on the package. * * *
* * * * *
31. Section 758.3 is amended by revising the third and fourth
sentences of paragraph (h)(2) introductory text and the introductory
text of paragraph (m)(3)(ii)(C) to read as follows:
Sec. 758.3 Shipper's Export Declaration (SED).
* * * * *
(h) * * *
(2) Exports not needing a license. * * * If the item(s) will be
exported under the provisions of License Exceptions GBS, CIV, or LVS,
or under the ``NLR'' provisions of the EAR (as described in
Sec. 758.1(a) of this part) and the item(s) are covered by entries on
the Commerce Control List that have the column identifier ``NS Column
2'' controlled for ``NS'' reasons, the ECCN must also be shown in the
designated space on the SED or SED continuation sheet. The following
apply for notations made on SED:
* * * * *
(m) * * *
(3) * * *
(ii) * * *
(C) For intransit shipments of items of U.S.-origin eligible for
the intransit provisions of License Exception TMP (see Sec. 740.8(b) of
the EAR), enter the following statement:
* * * * *
32. Section 758.6 is amended by revising paragraph (a)(1)(ii) to
read as follows:
Sec. 758.6 Destination control statement.
(a) * * *
(1) * * *
(ii) The export is made under the authority of the following
License
[[Page 64286]]
Exceptions: LVS, GBS, CIV, CTP, TMP, or RPL; or
* * * * *
PART 770--[AMENDED]
33. Section 770.3 is amended by revising paragraphs (d)(1)(i)(B),
(d)(1)(ii), and (d)(2)(ii) to read as follows:
Sec. 770.3 Interpretations related to exports of technology and
software to destinations in Country Group D:1.
* * * * *
(d) * * *
(1) * * *
(i) * * *
(B) Can we send an engineer (with knowledge and experience) to the
customer site to perform the installation or repair, under the
provisions of License Exception for operation technology and software
described in Sec. 740.12(a) of the EAR, if it is understood that he is
restricted by our normal business practices to performing the work
without imparting the knowledge or technology to the customer
personnel?
(ii) Answer 1. Export of technology includes release of U.S.-origin
data in a foreign country, and ``release'' includes ``application to
situations abroad of personal knowledge or technical experience
acquired in the United States.'' As the release of technology in the
circumstances described here would exceed that permitted under the
License Exception for operation technology and software described in
Sec. 740.12(a) of the EAR, a license would be required even though the
technician could apply the data without disclosing it to the customer.
* * * * *
(2) * * *
(ii) Answer 2. (A) Provided that this is your normal training, and
involves technology contained in your manuals and standard instructions
for the exported equipment, and meets the other requirements of License
Exception for operation technology and software described in
Sec. 740.12(a), the training may be provided within the limits of those
provisions of License Exception TSU. 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 TSU for operation technology and software described
in Sec. 740.12(a), but specifically represented in your license
application as required for this customer installation, and in fact
authorized on the face of the license or a separate technology license,
may not be undertaken while the license is suspended or revoked.
Dated: November 25, 1996.
Sue E. Eckert,
Assistant Secretary for Export Administration.
[FR Doc. 96-30502 Filed 12-3-96; 8:45 am]
BILLING CODE 3510-33-P
