The Export Administration Regulations; Editorial Revisions, Clarifications, and Corrections, 54807-54814 [2021-20649]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[Federal Register Volume 86, Number 190 (Tuesday, October 5, 2021)]
[Rules and Regulations]
[Pages 54807-54814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20649]



[[Page 54807]]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 732, 734, 736, 738, 740, 744, 748, 750, 770, 772, and 
774

[Docket No. 210802-0157]
RIN 0694-AI24


The Export Administration Regulations; Editorial Revisions, 
Clarifications, and Corrections

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule; corrections.

-----------------------------------------------------------------------

SUMMARY: In this rule, the Bureau of Industry and Security (BIS) amends 
the Export Administration Regulations (EAR) by making targeted 
editorial corrections and clarifications. The errors addressed by this 
rule were inadvertent and these corrections will provide clarity and 
facilitate understanding of the regulations. This rule ensures that the 
language and policies already set forth in the EAR remain consistent 
throughout.

DATES: This rule is effective October 5, 2021.

FOR FURTHER INFORMATION CONTACT: Logan Norton, Regulatory Policy 
Division, [email protected], (202) 812-1762.

SUPPLEMENTARY INFORMATION:

Background

    This final rule updates eleven parts of the Export Administration 
Regulations (EAR), parts 732, 734, 736, 738, 740, 744, 748, 750, 770, 
772, and 774, such that most-recent language elsewhere in the EAR is 
consistent with the language in these parts. These changes are minor 
editorial revisions that either reflect Bureau of Industry and Security 
(BIS) policies that were previously published in the Federal Register 
and added to the EAR or reflect the modernization of procedures 
implemented by BIS. These revisions do not change the substance of the 
EAR.

Part 732 Steps for Using the EAR

    In 2004, supplement no. 2 to part 732, the ``Subject to the EAR?'' 
flowchart, was revised to make it simpler and easier to read. However, 
the language of the supplement is not consistent with the language in 
other parts of the EAR, including language implemented before and after 
the 2004 amendment. In 1999, paragraphs (a) and (b) of Sec.  734.5 were 
amended to better represent U.S. policy objectives but the 2004 update 
to supplement no. 2 did not capture these changes. Further, in 2009, 
paragraph (c) of Sec.  734.5 was dropped from the EAR and in 2016, 
``transfer (in-country)'' was added to the EAR in Sec.  734.16. 
Elsewhere in this rule, Sec.  734.3(a)(4) and (5) are being amended to 
align with Sec.  736.2(b)(3) of the EAR; the changes to these sections 
also impact the flowchart in supplement no. 2 to part 732. This rule 
changes the ``Subject to the EAR?'' flowchart in supplement no. 2 of 
part 732 to reflect these changes. For example, the first text bubble 
of the supplement no longer mentions Sec.  734.5(c) and the final text 
bubble simply refers readers to Sec.  736.2(b)(3), rather than to any 
specific destinations.

Part 734 Scope of the Export Administration Regulations

    Parts 734 and 736 were added to the EAR in 1996. Section 736.2 has 
been revised several times since then, updating the language regarding 
what constitutes a ``foreign-produced direct product.'' The most recent 
update to part 736 was in August of 2020. This rule amends Sec.  
734.3(a)(4) and (5) to reflect the terms currently used in Sec.  
736.2(b)(3) of the EAR. The definition for the term ``direct product'' 
is removed from Sec.  734.3(a)(4), because it is being added to part 
772, as detailed below.

Part 736

    On January 15, 2021, BIS published an interim final rule (86 FR 
4865) that inadvertently removed paragraphs (B) and (C) from Sec.  
736.2(b)(7)(i). Paragraphs (B) and (C) are added back by this rule. 
Those paragraphs dictate which schedules of chemicals listed in 
supplement no. 1 to part 745 a ``U.S. person'' may not export without 
complying with specific provisions and requirements of the EAR. In 
addition, as the January 15 interim final rule removed the definition 
of ``U.S. person'' from Sec.  744.6(c) of the EAR (while leaving the 
identical definition in Sec.  772.1 of the EAR), BIS is making 
conforming changes to Sec.  736.2(b)(7)(i)(B) and (C). Specifically, 
BIS is revising both paragraphs to reference Sec.  772.1, instead of 
Sec.  744.6(c), for the definition of the term ``U.S. person.'' 
Quotation marks are also added around the term ``U.S. person'' in both 
paragraphs, given it is a defined term in part 772. Quotation marks are 
also added around the term ``direct product'' in Sec.  736.2(b) for the 
same reason and as detailed below.

Part 738 Commerce Control List Overview and the Country Chart

    In June of 2020, License Exception Civil End Users (CIV) was 
removed from the EAR. After the removal, a sample Commerce Control List 
entry set forth in Sec.  738.4(b)(2) of the EAR unintentionally 
retained a reference to License Exception CIV. This rule rectifies this 
by removing the CIV reference from Sec.  738.4(b)(2) while retaining 
the remainder of the sample entry.

Part 740 License Exceptions

    On December 28, 2020, BIS published a final rule (85 FR 84211) 
adding Cyprus and Mexico to Country Group A:6. As there were issues 
with the amendatory instruction to that rule, this rule corrects the 
amendatory instruction and adds an ``X'' in Column ``[A:6]'' in 
Supplement No. 1 to Part 740 for ``Cyprus'' and ``Mexico.''

Part 744 Control Policy: End-User and End-Use Based

    In April of 2020, BIS published a rule regarding military end users 
(85 FR 23459). In supplement no. 2 to part 744 of the EAR, paragraph 
(3)(viii) inadvertently reprinted out-of-date text from Export Control 
Classification Number (ECCN) 3A992 when referring to ECCN 3E991 
technology for those 3A992 items. This rule updates the paragraph to 
reflect the current text in that ECCN. This edit does not change the 
scope of the license requirement for items controlled under the ECCN. 
Quotation marks are also added around the term ``direct product'' in 
supplement no. 4 to part 744, because the term is being added to part 
772 by this rule, as detailed below.

Part 748 Applications (Classification, Advisory, and License) and 
Documentation

    As has been the case for some time, the public may submit advisory 
opinion requests to BIS in a variety of ways in addition to through the 
mail (e.g., the U.S. Postal Service or via a shipping and logistics 
delivery service). This rule revises Sec.  748.3(c) of the EAR to 
include how to submit advisory opinion requests via email or through 
the BIS website.
    Supplement no. 2 to part 748, ``Unique Application and Submission 
Requirements,'' is being clarified to reflect BIS policy regarding the 
letters of assurance described in paragraph (o)(3)(i), which are 
applicable to license applications submitted for the export of 
technology controlled for national security reasons to certain 
countries. Specifically, this clarification reflects BIS policy that 
license applicants must always obtain letters of assurance, which must 
be submitted to BIS upon request. Quotation marks are also added around 
the term ``direct product'' in supplement no. 2, because the term is 
being added to part 772 by this rule, as

[[Page 54808]]

detailed below. This rule also adds in that this applies to exports, 
reexports, and transfers (in-country), which is currently BIS policy 
regarding this paragraph.
    This rule amends paragraph (b)(6) ``Block 6: Ultimate Consignee,'' 
of supplement no. 3 to part 748, ``Statement by Ultimate Consignee and 
Purchaser Content Requirements.'' Prior to publication of this rule, 
paragraph (b)(6) indicated that an ink signature is required on the 
BIS-711 ``Statement by Ultimate Consignee and Purchaser'' form. 
However, following public comments, in a March 2015 final rule, BIS 
confirmed that electronic signatures are permissible. This rule revises 
paragraph (b)(6) to more accurately reflect existing text found in 
Sec.  748.11 of the EAR.

Part 750 Application Processing, Issuance and/or Denial

    Sections 750.1, 750.8, and 750.9 are being updated to reflect BIS's 
use of the Simplified Network Application Process--Redesign (SNAP-R) 
system by eliminating or rewording parts of the sections that are no 
longer relevant given the online nature of the system. The SNAP-R 
system has been in place since October of 2006 and has largely replaced 
the previous system that involved the submission of paper license 
applications, but the EAR has not been fully updated to reflect that 
change. Now that BIS does not mail copies of licenses to applicants 
with SNAP-R accounts, and almost all exporters have access to licenses 
electronically (via the SNAP-R system) and can therefore save and print 
out multiple copies of their licenses themselves, a requirement to 
return a revoked license or a duplicate copy of a license is, under 
most circumstances, unnecessary. In Sec.  750.8, the text specific to 
the return of a revoked license was relevant when BIS sent validated 
hard copies of licenses to exporters. This rule revises Sec.  750.8 by 
removing the text requiring the return of revoked or suspended 
licenses. The remaining text specifies that if BIS revokes or suspends 
a license, the licensee must retain all applicable supporting documents 
and records of shipments in accordance with the recording keeping 
provisions of part 762 of the EAR. In Sec.  750.9, the text specific to 
the return of duplicate licenses was relevant when BIS sent validated 
hard copies of licenses to exporters. This rule revises Sec.  750.9 
regarding lost, stolen or destroyed paper licenses by removing and 
reserving Sec.  750.9(a)(3) of the EAR, which required the return of 
either the original or duplicate paper licenses should the original 
paper license be found. Doing so aligns the EAR with existing BIS 
policies and procedures. This rule also revises Sec.  750.1 to reflect 
the changes this rule makes to Sec. Sec.  750.8 and 750.9 of the EAR.
    Section 750.7(a) is corrected by adding a sentence that directs 
readers to more detailed information regarding the release of 
``technology'' authorized by the issuance of a BIS license, which is 
set forth within Sec.  734.20 of the EAR. Section 750.7(a) is also 
broken up into subparagraphs (1), (2), and (3) to make it easier to 
read.

Part 770 Interpretations

    ``Release'' as it is used in the context of the EAR is defined in 
Sec.  734.15, which was added to the EAR in 2016. However, Sec.  
770.3(d)(1)(ii) was never updated to reflect the definition. This rule 
rectifies this omission by amending Sec.  770.3(d)(1)(ii) to direct 
readers to the definition of a ``release'' in Sec.  734.15 and by 
altering the language in paragraph (d)(1)(ii) such that it answers the 
preceding question in Sec.  770.3(d)(1)(i) correctly given the 2016 
change in the definition of ``release.''

Part 772 Definitions of Terms

    This final rule removes the definition of the term ``direct 
product'' from Sec.  734.3(a)(4) and adds it to Sec.  772.1. Given the 
changes to part 734 detailed above, the term ``direct product'' is 
better suited to appear as a defined term in part 772. This rule does 
not alter the definition of ``direct product'' or the BIS policy 
specific to the term.
    BIS is also amending paragraph (a) of the definition of ``U.S. 
person'' in Sec.  772.1 of the EAR to clarify that the definition 
applies for purposes of Sec. Sec.  732.3(j), 736.2(b)(7), and 
745.2(a)(1) of the EAR. This change does not alter BIS policy, but does 
bring the definition of ``U.S. person'' in line with the rest of the 
EAR.

Part 774 The Commerce Control List

    This final rule corrects ECCN 0D617 to remove text that was 
inadvertently included from 0D606 and published as part of a revision 
of 0D617 on June 3, 2020 (85 FR 34306). In ECCN 0D617, this final rule 
removes references to 0x606 ECCNs and adds in its place text 
referencing the 0x617 ECCNs. This final rule also revises the Related 
Controls paragraph and Items paragraph (a) in the List of Items 
Controlled section of ECCN 0D617 to remove text that was inadvertently 
included from 0D606 and to add in its place the intended text from 
0D617. The publication of this correction does not change existing BIS 
policy.
    This final rule corrects a reference in the control chart for ECCN 
7A611 from ``Sec.  724.6(a)(7)'' to ``Sec.  742.6(a)(7)'' in supplement 
no. 1 to part 774.

Export Control Reform Act of 2018

    On August 13, 2018, the President signed into law the John S. 
McCain National Defense Authorization Act for Fiscal Year 2019, which 
included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. 
Sections 4801-4852. ECRA provides the legal basis for BIS's principal 
authorities and serves as the authority under which BIS issues this 
rule.

Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This final rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866.
    2. Notwithstanding any other provision of law, no person may be 
required to respond to or be subject to a penalty for failure to comply 
with a collection of information, subject to the requirements of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless 
that collection of information displays a currently valid Office of 
Management and Budget (OMB) Control Number. This regulation involves a 
collection currently approved by OMB under control number 0694-0088, 
Simplified Network Application Processing System. This collection 
includes, among other things, license applications and commodity 
classification, and carries a burden estimate of 29.6 minutes for a 
manual or electronic submission for a total burden estimate of 31,835 
hours. BIS does not expect the burden hours associated with this 
collection to change.
    3. This rule does not contain policies with federalism implications 
as that term is defined under Executive Order 13132.

Administrative Procedure Act and Regulatory Flexibility Act 
Requirements

    Pursuant to Section 4821 of ECRA, this action is exempt from the 
Administrative Procedure Act (5 U.S.C. 553) requirements for notice of

[[Page 54809]]

proposed rulemaking, opportunity for public participation and delay in 
effective date.
    Further, no other law requires that a notice of proposed rulemaking 
and an opportunity for public comment be given for this final rule. 
Because a notice of proposed rulemaking and an opportunity for public 
comment are not required to be given for this rule under the 
Administrative Procedure Act or by any other law, the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

List of Subjects

15 CFR Part 732

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Part 734

    Administrative practice and procedure, Exports, Inventions and 
patents, Research, Science and technology.

15 CFR Part 738

    Exports.

15 CFR Part 744

    Exports, Reporting and recordkeeping requirements, Terrorism.

15 CFR Parts 740, 748 and 750

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Parts 736, 770, and 772

    Exports.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements, Terrorism.

    Accordingly, parts 732, 734, 736, 738, 740, 744, 748, 750, 770, 
772, and 774 of the Export Administration Regulations (15 CFR parts 
730-774) are amended as follows:

PART 732--[AMENDED]

0
1. The authority citation for part 732 continues to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.

0
2. Supplement no. 2 to part 732 is revised to read as follows:

Supplement No. 2 to Part 732--Subject to the EAR?

BILLING CODE 3510-33-P

[[Page 54810]]

[GRAPHIC] [TIFF OMITTED] TR05OC21.003

BILLING CODE 3510-33-C

PART 734--[AMENDED]

0
3. The authority citation for part 734 continues to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 
61 FR 58767, 3

[[Page 54811]]

CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., 
p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice 
of November 12, 2020, 85 FR 72897 (November 13, 2020).


0
4. Section 734.3 is amended by revising paragraphs (a)(4) and (5), to 
read as follows:


Sec.  734.3   Items subject to the EAR.

    (a) * * *
    (4) Certain foreign-produced ``direct products'' of specified 
``technology'' and ``software,'' as described in Sec.  736.2(b)(3) of 
the EAR; and

    Note to paragraph (a)(4):  Certain foreign-manufactured items 
developed or produced from U.S.-origin encryption items exported 
pursuant to License Exception ENC are subject to the EAR. See Sec.  
740.17(a) of the EAR.

    (5) Certain foreign-produced ``direct products'' of a complete 
plant or any major component of a plant as described in Sec.  
736.2(b)(3) of the EAR.
* * * * *

PART 736--[AMENDED]

0
5. The authority citation for part 736 is revised to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 
CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp., 
p. 168; Notice of November 12, 2020, 85 FR 72897 (November 13, 
2020); Notice of May 6, 2021, 86 FR 26793 (May 10, 2021).


0
6. Section 736.2 is amended by:
0
a. Adding double quotation marks around the term ``Direct Product'' in 
paragraph (b) introductory text and the paragraph (b)(3) subject 
heading;
0
b. Adding double quotation marks around the term ``direct product'' 
wherever it appears in paragraph (b)(3);
0
c. Adding double quotation marks around the term ``direct products'' in 
paragraphs (b)(3)(ii)(B)(2), (b)(3)(iv)(B)(2), and (b)(3)(v); and
0
d. Adding paragraphs (b)(7)(i)(B) and (C).
    The additions read as follows:


Sec.  736.2   General prohibitions and determination of applicability.

* * * * *
    (b) * * *
    (7) * * *
    (i) * * *
    (B) If you are a ``U.S. person'' as that term is defined in Sec.  
772.1 of the EAR, you may not export a Schedule 1 chemical listed in 
Supplement No. 1 to part 745 without first complying with the 
provisions of Sec. Sec.  742.18 and 745.1 of the EAR.
    (C) If you are a ``U.S. person'' as that term is defined in Sec.  
772.1 of the EAR, you may not export a Schedule 3 chemical listed in 
Supplement No. 1 to part 745 to a destination not listed in Supplement 
No. 2 to part 745 without complying with the End-Use Certificate 
requirements in Sec.  745.2 of the EAR that apply to Schedule 3 
chemicals controlled for CW reasons in ECCN 1C350, ECCN 1C355, and ECCN 
1C395.
* * * * *

PART 738--[AMENDED]

0
7. The authority citation for part 738 is revised to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C. 
287c; 22 U.S.C. 2151 note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 
42 U.S.C. 2139a; 15 U.S.C. 1824; 50 U.S.C. 4305; 22 U.S.C. 7201 et 
seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.


0
8. Section 738.4 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  738.4  Determining whether a license is required.

* * * * *
    (b) * * *
    (2) Sample CCL entry.
    2A000: Entry heading.

License Requirements

Reason for Control: NS, NP, AT

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry................  NS Column 2.
NP applies to 2A000.b entire entry........  NP Column 1.
AT applies to entire entry................  AT Column 1.
 

List Based License Exceptions (See Part 740 for a Description of all 
License Exceptions)

LVS: $5,000
GBS: Yes

List of Items Controlled

Related Definition: N/A
Related Controls: N/A
Items:

    a. Having x.
    b. Having z.
* * * * *

PART 740--LICENSE EXCEPTIONS

0
9. The authority citation for part 740 continues to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 
58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 
2001 Comp., p. 783.

0
10. Supplement No. 1 to part 740 is amended by revising the entries for 
``Cyprus'' and ``Mexico'' in the Country Group A table to read as 
follows:

Supplement No. 1 to Part 740--Country Groups

                                                                     Country Group A
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     [A:1] Wassenaar       [A:2] Missile                         [A:4] Nuclear
              Country                 participating      technology control    [A:3] Australia  suppliers group           [A:5]               [A:6]
                                        states \1\           regime \2\             group             \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Cyprus.............................  ...............  .......................               X                X   ......................               X
 
                                                                      * * * * * * *
Mexico.............................               X   .......................               X                X   ......................               X
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 54812]]

* * * * *

PART 744--[AMENDED]

0
11. The authority citation for 15 CFR part 744 continues to read as 
follows:

    Authority:  50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 
U.S.C. 7201 et seq.; 22 U.S.C. 7210; 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. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 
CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., 
p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice 
of September 18, 2020, 85 FR 59641 (September 22, 2020); Notice of 
November 12, 2020, 85 FR 72897 (November 13, 2020).


0
12. Supplement no. 2 to part 744 is amended by revising paragraph 
(3)(viii) to read as follows:

Supplement No. 2 to Part 744--List of Items Subject to the Military End 
Use or End User License Requirement of Sec.  744.21

* * * * *
    (3) * * *
    (viii) 3E991 Limited to ``technology'' according to the General 
Technology Note for the ``development,'' ``production,'' or ``use'' of 
digital oscilloscopes and transient recorders using analog-to-digital 
conversion techniques, capable of storing transients by sequentially 
sampling single-shot inputs at successive intervals of less than 1 ns 
(greater than 1 giga-sample per second), digitizing to 8 bits or 
greater resolution and storing 256 or more samples.
* * * * *

Supplement 4 to Part 744 [Amended]

0
13. Supplement no. 4 to part 744 is amended in footnote 1 by adding 
double quotation marks around the terms ``direct product'' and ``Direct 
product'' wherever they appear.

PART 748--[AMENDED]

0
14. The authority citation for part 748 is revised to read as follows:

    Authority:  50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of 
August 6, 2021, 86 FR 43901 (August 10, 2021).


0
15. Section 748.3 is amended by revising the introductory text of 
paragraph (c) and the introductory text of paragraph (c)(1) to read as 
follows:


Sec.  748.3  Classification requests and advisory opinions.

* * * * *
    (c) Advisory Opinions. Advisory opinion requests must be made in 
writing, and may be delivered to BIS by mail, by email, or through the 
BIS website. If delivering a request by mail, submit to the address 
listed in Sec.  748.1(d)(2). Both your letter and envelope must be 
marked ``Advisory Opinion.'' If submitting by email, submit to 
[email protected] with the subject title ``Advisory Opinion.'' If 
submitting through the BIS website, see https://www.bis.doc.gov.
    (1) Your submission must contain the following information if you 
are requesting guidance regarding interpretations of the EAR:
* * * * *

0
16. Supplement no. 2 to part 748 is amended by revising paragraph 
(o)(3)(i) to read as follows:

Supplement No. 2 to Part 748--Unique Application and Submission 
Requirements

* * * * *
    (o) * * *
    (3) * * *
    (i) Technology controlled for national security reasons. If you are 
submitting a license application to export, reexport, and transfer (in-
country) technology controlled for national security reasons to a 
country not listed in Country Group D:1, E:1, or E:2 (see Supplement 
No. 1 to part 740 of the EAR), you must obtain the letter from the 
ultimate consignee verifying that, unless prior authorization is 
obtained from BIS, the consignee will not knowingly reexport the 
technology to any destination, or export the ``direct product'' of the 
technology, directly or indirectly, to a country listed in Country 
Group D:1, E:1, or E:2 (see Supplement No. 2 to part 740 of the EAR). 
If you are unable to obtain this letter of assurance from your 
consignee, you must state in your license application why the 
assurances could not be obtained. BIS may request a copy of this 
letter. * * *
* * * * *

0
17. Supplement no. 3 to part 748 is amended by revising paragraph 
(b)(6) to read as follows:

Supplement No. 3 to Part 748--Statement by Ultimate Consignee and 
Purchaser Content Requirements

* * * * *
    (b) * * *
    (6) Block 6: Ultimate Consignee. Enter the requested information 
and sign the statement digitally or in ink. (For a definition of 
ultimate consignee, see Sec.  748.5(e) of this part.)
* * * * *

PART 750--[AMENDED]

0
18. The authority citation for part 750 is revised to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 
13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 
44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 
2013 Comp., p. 223; Presidential Determination 2003-23, 68 FR 26459, 
3 CFR, 2004 Comp., p. 320.

0
19. Section 750.1 is revised to read as follows:


Sec.  750.1  Scope.

    In this part, references to the EAR are references to 15 CFR 
chapter VII, subchapter C. This part describes the Bureau of Industry 
and Security's (BIS) process for reviewing your application for a 
license and the applicable processing times for various types of 
applications. Information related to the issuance, revocation, or 
suspension of a license and the denial of a license application is 
provided along with the procedures on obtaining a duplicate or 
replacement license (limited to those which BIS has validated and 
issued in hardcopy), the transfer of a license, and the shipping 
tolerances available on licenses. This part also contains instructions 
on obtaining the status of a pending application.

0
20. Section 750.7 is amended by revising paragraph (a) to read as 
follows:


Sec.  750.7  Issuance of licenses.

    (a) Scope. (1) Unless limited by a condition set out in a license, 
the export, reexport, or transfer (in-country) authorized by a license 
is for the item(s), end-use(s), and parties described in the license 
application and any letters of explanation. The applicant must inform 
the other parties identified on the license, such as the ultimate 
consignees and end users, of the license's scope and of the specific 
conditions applicable to them.
    (2) BIS grants licenses in reliance on representations the 
applicant made or submitted in connection with the license application, 
letters of explanation, and other documents submitted. Any license 
obtained in which a false or misleading representation was made, or a 
material fact was falsified or concealed on the license application, 
letters of explanation, or any document submitted in connection with 
the license application, shall be deemed void as of

[[Page 54813]]

the date of issuance. See Sec.  750.8(a) of the EAR, which provides 
that all licenses are subject to revocation, in whole or in part, 
without notice. See part 764 of the EAR for other sanctions that may 
result in the event a violation occurs.
    (3) A BIS license authorizing the release of ``technology'' to an 
entity also authorizes the release of the same ``technology'' to the 
entity's foreign persons who are permanent and regular employees (and 
who are not proscribed persons) of the entity's facility or facilities 
authorized on the license, except to the extent a license condition 
limits or prohibits the release of the ``technology'' to foreign 
persons of specific countries or country groups. See Sec.  734.20 of 
the EAR for additional information regarding the release of 
``technology'' authorized by a BIS license.
* * * * *

0
21. Section 750.8 is amended by revising paragraph (b) to read as 
follows:


Sec.  750. 8  Revocation or suspension of licenses.

* * * * *
    (b) Revoked or suspended licenses. If BIS revokes or suspends a 
license, the licensee must retain all applicable supporting documents 
and records of shipments in accordance with the recordkeeping 
provisions of part 762 of the EAR.

0
22. Section 750.9 is amended by revising paragraph (a) to read as 
follows:


Sec.  750.9  Duplicate licenses.

    (a) Lost, stolen or destroyed. For licensees whom BIS authorized 
the submission of paper applications, if a license is lost, stolen or 
destroyed, you, as the licensee, may obtain a duplicate of the license 
by submitting a letter to the BIS at the address listed in Sec.  
748.1(d)(2) of the EAR, Attention: Duplicate License Request.'' You 
must certify in your letter:
    (1) That the original license ([number] issued to [name and address 
of licensee]) has been lost, stolen or destroyed; and
    (2) The circumstances under which it was lost, stolen or destroyed.
* * * * *

PART 770--[AMENDED]

0
23. The authority citation for 15 CFR part 770 is revised to read as 
follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783.

0
24. Section 770.3 is amended by revising paragraph (d)(1)(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) * * *
    (ii) Answer 1. Export of technology includes release of U.S.-origin 
data in a foreign country as defined in Sec.  734.15 of the EAR. So 
long as the circumstances described here would not exceed that 
permitted under the License Exception TSU for operation technology and 
software, as described in Sec.  740.13(a) of the EAR, this is not a 
``release'' of technology and a license would not be required.
* * * * *

PART 772--[AMENDED]

0
25. The authority citation for part 772 continues to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783.

0
26. Section 772.1 is amended by:
0
a. Adding a definition for ``direct product'' in alphabetical order; 
and
0
b. Revising paragraph (a) introductory text of the definition of ``U.S. 
person''.
    The addition and revision read as follows:


Sec.  772.1  Definitions of terms as used in the Export Administration 
Regulations (EAR).

* * * * *
    Direct product. The immediate product (including processes and 
services) produced directly by the use of technology or software.
* * * * *
    U.S. Person. (a) For purposes of Sec. Sec.  732.3(j), 736.2(b)(7), 
740.21(e)(1), 744.6, 744.10, 744.11, 744.12, 744.13, 744.14, and 
745.2(a)(1) of the EAR, the term U.S. person includes:
* * * * *

PART 774--[AMENDED]

0
27. The authority citation for 15 CFR part 774 continues to read as 
follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C. 
287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 
U.S.C. 1824; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; 
E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 
FR 44025, 3 CFR, 2001 Comp., p. 783.

0
28. Supplement No. 1 to Part 774 is amended by revising ECCN 0D617 and 
ECCN 7A611 to read as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *
0D617 ``Software'' ``specially designed'' for the ``development,'' 
``production,'' operation, or maintenance of commodities controlled 
by 0A617, ``equipment'' controlled by 0B617, or materials controlled 
by 0C617 (see List of Items Controlled).

License Requirements

Reason for Control: NS, RS, AT, UN

 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry, except 0D617.y  NS Column 1.
RS applies to entire entry, except 0D617.y  RS Column 1.
RS applies to 0D617.y.....................  China, Russia, or Venezuela
                                             (see Sec.   742.6(a)(7)).
AT applies to entire entry................  AT Column 1.
UN applies to entire entry, except 0D617.y  See Sec.   746.1(b) for UN
                                             controls.
 

List Based License Exceptions (See Part 740 for a description of all 
license exceptions)

TSR: N/A

Special Conditions for STA

    STA: Paragraph (c)(2) of License Exception STA (Sec.  
740.20(c)(2) of the EAR) may not be used for any ``software'' in 
0D617.

List of Items Controlled

Related Controls: (1) ``Software'' directly related to articles 
controlled by USML Category XIII is subject to the control of USML 
paragraph XIII(l). (2) See ECCN 0A919 for foreign-made ``military 
commodities'' that incorporate more than a de minimis amount of 
U.S.-origin ``600 series'' controlled content.
Related Definitions: N/A
Items:

    a. ``Software'' (other than ``software'' controlled in paragraph 
.y of this entry) ``specially designed'' for the ``development,'' 
``production,'' operation or maintenance of commodities controlled 
by ECCNs 0A617 (except 0A617.y), 0B617, or 0C617.
    b. to x. [Reserved].
    y. Specific ``software'' ``specially designed'' for the 
``production,'' ``development,'' operation or maintenance of 
commodities controlled by ECCN 0A617.y.
* * * * *
7A611 Military fire control, laser, imaging, and guidance equipment, 
as follows (see List of Items Controlled).

License Requirements

Reason for Control: NS, MT, RS, AT, UN

[[Page 54814]]



 
                                            Country chart (see Supp. No.
                Control(s)                         1 to part 738)
 
NS applies to entire entry except 7A611.y.  NS Column 1.
MT applies to commodities in 7A611.a that   MT Column 1.
 meet or exceed the parameters in 7A103.b
 or .c.
RS applies to entire entry except 7A611.y.  RS Column 1.
RS applies to 7A611.y.....................  China, Russia, or Venezuela
                                             (see Sec.   742.6(a)(7)).
AT applies to entire entry................  AT Column 1.
UN applies to entire entry except 7A611.y.  See Sec.   746.1(b) for UN
                                             controls.
 

List Based License Exceptions (See Part 740 for a description of all 
license exceptions)

LVS: $1500
GBS: N/A

Special Conditions for STA

STA: Paragraph (c)(2) of License Exception STA (Sec.  740.20(c)(2) 
of the EAR) may not be used for any item in 7A611.

List of Items Controlled

Related Controls: (1) Military fire control, laser, imaging, and 
guidance equipment that are enumerated in USML Category XII, and 
technical data (including software) directly related thereto, are 
subject to the ITAR. (2) See Related Controls in ECCNs 0A504, 2A984, 
6A002, 6A003, 6A004, 6A005, 6A007, 6A008, 6A107, 7A001, 7A002, 
7A003, 7A005, 7A101, 7A102, and 7A103. (3) See ECCN 3A611 and USML 
Category XI for controls on countermeasure equipment. (4) See ECCN 
0A919 for foreign-made ``military commodities'' that incorporate 
more than a de minimis amount of U.S. origin ``600 series'' 
controlled content.
Related Definitions: N/A
Items:
    a. Guidance or navigation systems, not elsewhere specified on 
the USML, that are ``specially designed'' for a defense article on 
the USML or for a 600 series item.
    b. to w. [Reserved]
    x. ``Parts,'' ``components,'' ``accessories,'' and 
``attachments,'' including accelerometers, gyros, angular rate 
sensors, gravity meters (gravimeters), and inertial measurement 
units (IMUs), that are ``specially designed'' for defense articles 
controlled by USML Category XII or items controlled by 7A611, and 
that are NOT:
    x.1. Enumerated or controlled in the USML or elsewhere within 
ECCN 7A611;
    x.2. Described in ECCNs 6A007, 6A107, 7A001, 7A002, 7A003, 
7A101, 7A102 or 7A103; or
    x.3. Elsewhere specified in ECCN 7A611.y or 3A611.y.
    y. Specific ``parts,'' ``components,'' ``accessories,'' and 
``attachments'' ``specially designed'' for a commodity subject to 
control in this ECCN or a defense article in Category XII and not 
elsewhere specified on the USML or in the CCL, as follows, and 
``parts,'' ``components,'' ``accessories,'' and ``attachments'' 
``specially designed'' therefor:
    y.1 [Reserved]
* * * * *

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2021-20649 Filed 10-4-21; 8:45 am]
BILLING CODE 3510-33-P