Foreign-Direct Product Rules: Organization, Clarification, and Correction, 6022-6026 [2022-02302]
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Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Rules and Regulations
frequent and routine amendments are
necessary to keep them operationally
current. It, therefore—(1) is not a
‘‘significant regulatory action’’ under
Executive Order 12866; (2) is not a
‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. For the same
reason, the FAA certifies that this
amendment will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
Lists of Subjects in 14 CFR Part 97;
Air Traffic Control, Airports,
Incorporation by reference, Navigation
(Air).
Issued in Washington, DC, on January 21,
2022.
Thomas J. Nichols,
Aviation Safety, Flight Standards Service,
Manager, Standards Section, Flight
Procedures & Airspace Group, Flight
Technologies & Procedures Division.
Adoption of the Amendment
Accordingly, pursuant to the
authority delegated to me, Title 14,
Code of Federal Regulations, Part 97 (14
CRF part 97) is amended by
establishing, amending, suspending, or
removing Standard Instrument
Approach Procedures and/or Takeoff
Minimums and Obstacle Departure
Procedures effective at 0901 UTC on the
dates specified, as follows:
PART 97—STANDARD INSTRUMENT
APPROACH PROCEDURES
1. The authority citation for part 97
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 40103,
40106, 40113, 40114, 40120, 44502, 44514,
44701, 44719, 44721–44722.
2. Part 97 is amended to read as
follows:
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■
[FR Doc. 2022–02137 Filed 2–2–22; 8:45 am]
BILLING CODE 4910–13–P
Effective 24 March 2022
Siloam Springs, AR, KSLG, RNAV (GPS)
RWY 18, Amdt 2
Prescott, AZ, KPRC, VOR RWY 12, Amdt 3
Fresno, CA, KFCH, RNAV (GPS) RWY 12,
Amdt 1A
Hanford, CA, KHJO, VOR–A, Amdt 10,
CANCELLED
Napa, CA, KAPC, RNAV (GPS) RWY 6, Amdt
3
Napa, CA, KAPC, VOR RWY 6, Amdt 15
Ontario, CA, KONT, RNAV (RNP) Z RWY
26L, Amdt 3
Ontario, CA, KONT, RNAV (RNP) Z RWY
26R, Amdt 3
Ontario, CA, Ontario International Airport,
Takeoff Minimums and Obstacle DP, Amdt
9A
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Rio Vista, CA, O88, RNAV (GPS) RWY 25,
Amdt 4
Salinas, CA, KSNS, RNAV (GPS) RWY 8,
Orig
Tulare, CA, KTLR, VOR RWY 13, Amdt 2A,
CANCELLED
Alamosa, CO, KALS, ILS OR LOC RWY 2,
Amdt 3
Alamosa, CO, KALS, RNAV (GPS) RWY 2,
Amdt 2
Alamosa, CO, KALS, RNAV (GPS) RWY 20,
Amdt 2
Alamosa, CO, KALS, VOR–B, Amdt 6
Fort Collins/Loveland, CO, KFNL, ILS OR
LOC RWY 33, Amdt 7
Fort Collins/Loveland, CO, KFNL, RNAV
(GPS) RWY 15, Orig-C
Fort Collins/Loveland, CO, KFNL, RNAV
(GPS) RWY 33, Amdt 2
Donalsonville, GA, 17J, RNAV (GPS) RWY 1,
Amdt 2
Donalsonville, GA, 17J, RNAV (GPS) RWY
19, Amdt 2
Wellington, KS, KEGT, VOR RWY 18, Amdt
3, CANCELLED
Falmouth, MA, 5B6, RNAV (GPS) RWY 7,
Orig
Falmouth, MA, 5B6, RNAV (GPS) RWY 25,
Orig
Falmouth, MA, Falmouth Airpark, Takeoff
Minimums and Obstacle DP, Orig
Coldwater, MI, KOEB, VOR RWY 7, Amdt
5B, CANCELLED
Coldwater, MI, KOEB, VOR/DME RWY 25,
Orig-B, CANCELLED
Detroit, MI, KDET, RNAV (GPS) RWY 15,
Orig-D
Bowling Green, MO, H19, RNAV (GPS) RWY
13, Amdt 1
Bowling Green, MO, H19, RNAV (GPS) RWY
31, Amdt 1
Bowling Green, MO, Bowling Green Muni,
Takeoff Minimums and Obstacle DP, Amdt
1
Keene, NH, KEEN, ILS OR LOC RWY 2,
Amdt 6
Saranac Lake, NY, KSLK, RNAV (GPS) RWY
23, Amdt 2
Columbus, OH, KCMH, RNAV (RNP) Z RWY
28L, Amdt 2A
Albany, OR, S12, VOR–A, Amdt 5
Elizabethton, TN, 0A9, RNAV (GPS) RWY 6,
Amdt 1
Decatur, TX, KLUD, RNAV (GPS) RWY 35,
Orig-C
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 734, 736, 744, and 774
[Docket No. 220127–0035]
RIN 0694–AI61
Foreign-Direct Product Rules:
Organization, Clarification, and
Correction
Bureau of Industry and
Security, Department of Commerce.
AGENCY:
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ACTION:
Final rule.
The Bureau of Industry and
Security (BIS) is clarifying, reorganizing,
and making minor corrections to the
provisions of the foreign-direct product
(FDP) rules. Before this final rule, the
FDP rules appeared in parts 736 and 744
of the Export Administration
Regulations (EAR); now, the rules are
consolidated in part 734 of the EAR.
These revisions clarify the applicability
of the FDP rules and make one
correction applicable to the FDP rules as
to the term ‘‘U.S.-origin technology and
software.’’
DATES: The effective date of this rule is
February 3, 2022.
FOR FURTHER INFORMATION CONTACT:
Sharron Cook, 202–482–2440,
Sharron.Cook@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Consolidation and Organization of the
Foreign-Direct Product (FDP) Rules
This final rule consolidates the FDP
rules in § 734.9 of the Export
Administration Regulations (EAR).
Before publication of this rule, the FDP
rules were found in § 736.2(b)(3)
(General Prohibition 3) and footnote 1 to
supplement no. 4 to part 744 (the Entity
List). Placing the FDP rules in part 734
(Scope of the EAR) clarifies that they are
used to determine if a foreign-produced
item is subject to, and thus within the
scope of, the EAR. To further clarify the
FPD rules, this rule moves the license
requirement, license review policy, and
license exception applicability text for
listed entities from the Entity List’s
footnote 1 to supplement no. 4 to part
744 to § 744.11(a), where the overall
license requirements pertaining to listed
entities are located.
Organization of the FDP Rules
In new § 734.9, this rule separates the
FDP provisions into four paragraphs:
The National Security FDP rule, the
9x515 FDP rule, the ‘‘600 series’’ FDP
rule, and the Entity List FDP rule. While
the product scope of the first three FDP
rules is relatively similar in format, the
country scopes of each rule are
different. This reorganization and
naming of the FDP rules does not make
substantive changes to the FDP rules.
Rather, it facilitates reference to and
compliance with the rules.
The original national security-focused
FDP rule is now the National Security
FDP rule. The provisions of the 9x515
FDP rule and the ‘‘600 series’’ FDP rule
are reorganized into separate paragraphs
with a description of the product scope
followed by the country scope. The
provisions of the Entity List FDP rule
are organized with a description of the
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product scope followed by the
applicable end-user scope.
This rule moves a definition of the
term ‘major component’ from a note to
footnote 1 to Supplement no. 4 to part
744 of the EAR to a new definition
paragraph in § 734.9(a) of the EAR. In
making this change, this rule clarifies
that the definition of the term ‘major
component’ applies to all the FDP rules,
and not just the Entity List FDP rule. A
‘major component’ of a plant located
outside the United States for all FDP
rules is ‘‘equipment’’ that is essential to
the ‘‘production’’ of an item, including
testing ‘‘equipment.’’ As noted in the
August 20, 2020, final rule that
amended the Entity List FPD rule (see
85 FR 51596, at 51601), any equipment
that is involved in any of the production
stages is considered essential. As a
conforming edit, to indicate that the
term is defined in that section, BIS
added single quotation marks around
the term ‘major component’ wherever it
appears in § 734.9.
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Clarification of the FDP Rules
This rule further clarifies the FDP
rules by adding double quotation marks
around terms that are defined in part
772 of the EAR, e.g., direct product,
technology, software, and equipment.
BIS has received requests for additional
guidance about determining the scope of
production equipment in relation to the
Entity List FDP rule and clarifying that
these are defined terms should help the
public better understand its obligations.
In addition, this rule clarifies in
§ 736.2(b)(3) of the EAR (General
Prohibition Three), that foreign-direct
products subject to the EAR are not
necessarily subject to a license
requirement and that license
requirements must be determined based
on an assessment of the classification,
destination, end user, and end use of the
items.
Lastly, this rule clarifies the
circumstances under which the ‘‘600
series’’ FDP rule applies to items
described in Export Control
Classification Number (ECCN) 0A919.
The text of ECCN 0A919 states that it
includes the foreign direct product of
‘‘600 series’’ technology or software.
However, before this rule, the text of
General Prohibition Three did not
explicitly include ECCN 0A919 items
when describing other aspects of
determining applicability of the ‘‘600
series’’ FDP rule. This rule also replaces
the cross reference in ECCN 0A919.a.3
as a conforming edit.
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Correction: U.S.-Origin ‘‘technology’’
and ‘‘software’’
In this rule, BIS corrects an earlier
revision to General Prohibition Three to
clarify when the FDP rules are intended
to apply to the direct product of U.S.origin technology or software. On May
19, 2020, BIS published a rule entitled
‘‘Export Administration Regulations:
Amendments to General Prohibition
Three (Foreign-Direct Product Rule) and
the Entity List’’ (85 FR 29849). This rule
removed the word ‘‘U.S.’’ from the
heading of § 736.2(b)(3) (Foreign-Direct
Product rule) where it had been placed
in front of the words ‘‘technology and
software.’’ This revision was made
because the scope of the heading did not
align with the scope of the Entity List
foreign-direct product rule being added
to the EAR on that date. The Entity List
FDP rule in § 734.9(e), and as it
previously appeared in footnote 1 to
supplement no. 4 to part 744 of the
EAR, applies to the FDP of technology
or software that is subject to the EAR,
but that is not necessarily technology or
software of U.S. origin. The preamble of
the May 19 rule that added the Entity
List FDP rule clearly stated that BIS did
not intend to change the scope of the
other FDP rules, noting General
Prohibition Three: ‘‘continues to apply
to foreign-produced items controlled for
national security reasons, 9x515 items,
or ‘‘600 series’’ items and has three
criteria: The reason for control or
classification of the U.S. ‘‘technology’’
or ‘‘software’’; the foreign-produced
item’s reason for control or
classification; and the destination
country of the foreign-produced item[.]’’
The May 19 rule stated that it
‘‘maintains the scope and criteria of
General Prohibition Three[.]’’
Nevertheless, by removing the term
‘‘U.S.’’ from General Prohibition Three’s
heading, BIS may have inadvertently
caused confusion as to whether the
revision was intended to change the
product scope of all FDP rules, because
the term ‘‘U.S.’’ had only been in the
heading and not in the other FDP rules’
product scope descriptions. For this
reason, this rule clarifies the EAR by
specifically stating in each of the FDP
rules that the application of the rule
relates to U.S.-origin technology or
software.
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 ECRA
(codified, as amended, at 50 U.S.C.
Sections 4801–4852). ECRA provides
the legal basis for BIS’s principal
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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 and distributive impacts and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits and
of reducing costs, harmonizing rules,
and promoting flexibility.
This final rule has not been
designated a ‘‘significant regulatory
action’’ under Executive Order 12866.
This rule does not contain policies with
Federalism implications as that term is
defined under Executive Order 13132.
2. Notwithstanding any other
provision of law, no person is required
to respond to, nor shall any person 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 final rule
does not intentionally affect any PRA
collection burden, because this intent of
this final rule is to organize, clarify, and
correct the rules pertaining to the
foreign direct product and in doing so
BIS only expects minimal, if any,
change to the burden hours associated
with license requirements. The
following is a list of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) (PRA) collection approvals that
may be encountered if a license is
required, and the estimated average
burden hours for each:
• 0694–0088, ‘‘Simplified Network
Application Processing System,’’ and
carries a burden-hour estimate of 29.6
minutes for a manual or electronic
submission;
• 0694–0137 ‘‘License Exceptions and
Exclusions,’’ which carries a burdenhour estimate average of 1.5 hours per
submission (Note: Submissions for
License Exceptions are rarely required);
• 0694–0096 ‘‘Five Year Records
Retention Period,’’ which carries a
burden-hour estimate of less than 1
minute; and
• 0607–0152 ‘‘Automated Export
System (AES) Program,’’ which carries a
burden-hour estimate of 3 minutes per
electronic submission.
Any comments regarding these
collections of information, including
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suggestions for reducing the burden,
may be submitted online at https://
www.reginfo.gov/public/do/PRAMain.
Find the particular information
collection by using the search function
and entering either the title of the
collection or the OMB Control Number.
3. Pursuant to Section 1762 of the
Export Control Reform Act of 2018
(ECRA) (50 U.S.C. 4821), this action is
exempt from the Administrative
Procedure Act (APA) (5 U.S.C. 553)
requirements for notice of proposed
rulemaking, opportunity for public
participation and delay in effective date.
List of Subjects
15 CFR Part 734
Administrative practice and
procedure, Exports, Inventions and
patents, Research, Science and
technology.
15 CFR Part 736
Exports.
15 CFR Part 744
Exports, Reporting and recordkeeping
requirements, Terrorism.
15 CFR Part 774
Exports, Reporting and recordkeeping
requirements, Terrorism.
For the reasons discussed in the
preamble, the Bureau of Industry and
Security of the Department of
Commerce amends 15 CFR parts 734,
736, 744, and 774 as follows:
PART 734—SCOPE OF THE EXPORT
ADMINISTRATION REGULATIONS
1. The authority citation for part 734
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.
13637, 78 FR 16129, 3 CFR, 2014 Comp., p.
223; Notice of November 10, 2021, 86 FR
62891 (November 12, 2021).
■
2. Add § 734.9 to read as follows:
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§ 734.9
Rules.
Foreign-Direct Product (FDP)
Foreign-produced items located
outside the United States are subject to
the EAR when they are a ‘‘direct
product’’ of specified ‘‘technology’’ or
‘‘software,’’ or are produced by a plant
or ‘major component’ of a plant that
itself is a ‘‘direct product’’ of specified
‘‘technology’’ or ‘‘software.’’ If a foreignproduced item is subject to the EAR,
then you should separately determine
the license requirements that apply to
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that foreign-produced item (e.g., by
assessing the item classification,
destination, end-use, and end-user in
the relevant transaction). Not all
transactions involving foreign-produced
items that are subject to the EAR require
a license. Those transactions that do
require a license may be eligible for a
license exception.
(a) Definitions. The terms defined in
this paragraph are specific to § 734.9 of
the EAR. These terms are indicated by
single quotation marks. Terms that are
in double quotation marks are defined
in part 772 of the EAR.
Major Component: A major
component of a plant located outside
the United States means ‘‘equipment’’
that is essential to the ‘‘production’’ of
an item, including testing ‘‘equipment.’’
(b) National Security FDP rule. A
foreign-produced item is subject to the
EAR if it meets both the product scope
in paragraph (b)(1) of this section and
the country scope in paragraph (b)(2) of
this section.
(1) Product scope of National Security
FDP rule. The product scope applies if
a foreign-produced item meets the
conditions of either paragraph (b)(1)(i)
or (ii) of this section.
(i) ‘‘Direct product’’ of ‘‘technology’’
or ‘‘software.’’ A foreign-produced item
meets the product scope of this
paragraph if it meets both of the
following conditions:
(A) The foreign-produced item is the
‘‘direct product’’ of U.S.-origin
‘‘technology’’ or ‘‘software’’ that
requires a written assurance as a
supporting document for a license, as
defined in paragraph (o)(3)(i) of
supplement no. 2 to part 748 of the
EAR, or as a precondition for the use of
License Exception TSR at § 740.6 of the
EAR; and
(B) The foreign-produced item is
subject to national security controls as
designated in the applicable ECCN of
the Commerce Control List in part 774
of the EAR.
(ii) ‘‘Direct product’’ of a complete
plant or ‘major component’ of a plant.
A foreign-produced item meets the
product scope of this paragraph if it
meets both of the following conditions:
(A) The foreign-produced item is a
‘‘direct product’’ of a complete plant or
‘major component’ of a plant that itself
is the ‘‘direct product’’ of U.S.-origin
‘‘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 § 740.6 of
the EAR; and
(B) The foreign-produced item is
subject to national security controls as
designated on the applicable ECCN of
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the Commerce Control List at part 774
of the EAR.
(2) Country scope of National Security
FDP rule. A foreign-produced item
meets the country scope of this
paragraph if its destination is listed in
Country Group D:1, E:1, or E:2 (See
supplement no.1 to part 740 of the
EAR).
(c) 9x515 FDP rule. A foreignproduced item is subject to the EAR if
it meets both the product scope in
paragraph (c)(1) of this section and the
country scope in paragraph (c)(2) of this
section.
(1) Product scope of 9x515 FDP rule.
The product scope applies if a foreignproduced item meets the conditions of
either paragraph (c)(1)(i) or (ii) of this
section.
(i) ‘‘Direct product’’ of ‘‘technology’’
or ‘‘software.’’ A foreign-produced item
meets the product scope of this
paragraph if it meets both of the
following conditions:
(A) The foreign-produced item is the
‘‘direct product’’ of U.S.-origin
‘‘technology’’ or ‘‘software’’ that is
specified in ECCN 9D515 or 9E515; and
(B) The foreign-produced item is
specified in a 9x515 ECCN.
(ii) ‘‘Direct product’’ of a complete
plant or ‘major component’ of a plant.
A foreign-produced item meets the
product scope of this paragraph if it
meets both of the following conditions:
(A) The foreign-produced item is a
‘‘direct product’’ of a complete plant or
any ‘major component’ of a plant that
itself is the ‘‘direct product’’ of U.S.origin ‘‘technology’’ specified in ECCN
9E515; and
(B) The foreign-produced item is
specified in a 9x515 ECCN.
(2) Country scope of 9x515 FDP rule.
A foreign produced item meets the
country scope of this paragraph if its
destination is listed in Country Group
D:5, E:1, or E:2 (see supplement no. 1 to
part 740 of the EAR).
(d) ‘‘600 series’’ FDP rule. A foreignproduced item is subject to the EAR if
it meets both the product scope in
paragraph (d)(1) of this section and the
country scope in paragraph (d)(2) of this
section.
NOTE 1 TO PARAGRAPH (D) INTRODUCTORY
TEXT: As described in the CCL, ECCN 0A919
is included in this paragraph because it
includes the ‘‘direct product’’ of ‘‘600 series’’
‘‘technology’’ or ‘‘software’’.
(1) Product scope of ‘‘600 series’’ FDP
rule. The product scope applies if a
foreign-produced item meets the
conditions of either paragraph (d)(1)(i)
or (ii) of this section.
(i) ‘‘Direct product’’ of ‘‘technology’’
or ‘‘software.’’ A foreign-produced item
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meets the product scope of this
paragraph if it meets both of the
following conditions:
(A) The foreign-produced item is the
‘‘direct product’’ of U.S.-origin
‘‘technology’’ or ‘‘software’’ that is
specified in a ‘‘600 series’’ ECCN; and
(B) The foreign-produced item is
specified in a ‘‘600 series’’ ECCN or
ECCN 0A919.
(ii) ‘‘Direct product’’ of a complete
plant or ‘major component’ of a plant.
Foreign-produced items meet the
product scope of this paragraph if they
meet both of the following conditions:
(A) The foreign-produced item is the
‘‘direct product’’ of a complete plant or
‘major component’ of a plant that itself
is the ‘‘direct product’’ of U.S.-origin
‘‘technology’’ that is specified in a ‘‘600
series’’ ECCN; and
(B) The foreign produced item is
specified in a ‘‘600 series’’ ECCN.
(2) Country scope of ‘‘600 series’’ FDP
rule. A foreign-produced item meets the
country scope of this paragraph if it is
destined to a country listed in Country
Group D:1, D:3, D:4, D:5, E:1, or E:2 (see
supplement no.1 to part 740 of the
EAR).
(e) Entity List FDP rule. A foreignproduced item is subject to the EAR if
it meets both the product scope in
paragraph (e)(1) of this section and the
end-user scope in paragraph (e)(2) of
this section. See § 744.11(a) of the EAR
for license requirements, license review
policy, and license exceptions
applicable to foreign-produced items
that are subject to the EAR pursuant to
this paragraph.
(1) Product Scope of Entity List FDP
rule. The product scope applies if a
foreign-produced item meets the
conditions of either paragraph (e)(1)(i)
or (ii) of this section.
(i) ‘‘Direct product’’ of ‘‘technology’’
or ‘‘software.’’ A foreign-produced item
meets the product scope of this
paragraph if the foreign-produced item
is a ‘‘direct product’’ of ‘‘technology’’ or
‘‘software’’ subject to the EAR and
specified in ECCN 3D001, 3D991,
3E001, 3E002, 3E003, 3E991, 4D001,
4D993, 4D994, 4E001, 4E992, 4E993,
5D001, 5D991, 5E001, or 5E991 of the
Commerce Control List (CCL) in
supplement no. 1 to part 774 of the
EAR; or
(ii) ‘‘Direct product’’ of a complete
plant or ‘major component’ of a plant.
A foreign-produced item meets the
product scope of this paragraph if the
foreign-produced item is produced by
any plant or ‘major component’ of a
plant that is located outside the United
States, when the plant or ‘major
component’ of a plant, whether made in
the U.S. or a foreign country, itself is a
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‘‘direct product’’ of ‘‘technology’’ or
‘‘software’’ subject to the EAR that is
specified in ECCN 3D001, 3D991,
3E001, 3E002, 3E003, 3E991, 4D001,
4D993, 4D994, 4E001, 4E992, 4E993,
5D001, 5D991, 5E001, or 5E991 of the
CCL.
(ii) Each license exception described
in part 740 of the EAR supersedes
General Prohibition Three if all terms
and conditions of a given license
exception are met and none of the
restrictions of § 740.2 or 744.11(a)
apply.
NOTE 2 TO PARAGRAPH (E)(1): A foreignproduced item includes any foreignproduced wafer whether finished or
unfinished.
PART 744—CONTROL POLICY: ENDUSER AND END-USER BASED
(2) End-user scope of the Entity List
FDP rule. A foreign-produced item
meets the end-user scope of this
paragraph if there is ‘‘knowledge’’ that:
(i) Activities involving Footnote 1
designated entities. The foreignproduced item will be incorporated
into, or will be used in the ‘‘production’’
or ‘‘development’’ of any ‘‘part,’’
‘‘component,’’ or ‘‘equipment’’
produced, purchased, or ordered by any
entity with a footnote 1 designation in
the license requirement column of the
Entity List in Supplement No. 4 to part
744 of the EAR; or
(ii) Footnote 1 designated entities as
transaction parties. Any entity with a
footnote 1 designation in the license
requirement column of the Entity List in
Supplement No. 4 to part 744 of the
EAR is a party to any transaction
involving the foreign-produced item,
e.g., as a ‘‘purchaser,’’ ‘‘intermediate
consignee,’’ ‘‘ultimate consignee,’’ or
‘‘end-user.’’
PART 736—GENERAL PROHOBITIONS
3. The authority citation for part 736
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
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 10, 2021, 86 FR
62891 (November 12, 2021); Notice of May 6,
2021, 86 FR 26793 (May 10, 2021).
4. Section 736.2 is amended by
revising paragraph (b)(3) to read as
follows:
■
§ 736.2 General prohibitions and
determination of applicability.
*
*
*
*
*
(b) * * *
(3) General Prohibition Three—
Foreign-direct product (FDP) rules—(i)
You may not, without a license or
license exception, export from abroad,
reexport, or transfer (in-country)
foreign-‘‘direct products’’ subject to the
EAR pursuant to § 734.9 if such items
are subject to a license requirement in
part 736, 742, 744, 746, or 764 of the
EAR.
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
5. The authority citation for 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 15, 2021,
86 FR 52069 (September 17, 2021); Notice of
November 10, 2021, 86 FR 62891 (November
12, 2021).
6. Section 744.11 is amended by
revising paragraph (a) to read as follows:
■
§ 744.11 License requirements that apply
to entities acting contrary to the national
security or foreign policy interests of the
United States.
*
*
*
*
*
(a) License requirement, availability of
license exceptions, and license
application review policy. (1) A license
is required, to the extent specified on
the Entity List, to export, reexport, or
transfer (in-country) any item subject to
the EAR when an entity that is listed on
the Entity List is a party to the
transaction as described in § 748.5(c)
through (f). License exceptions may not
be used unless authorized in the Entity
List entry for the entity that is party to
the transaction. Applications for
licenses required by this section will be
evaluated as stated in the Entity List
entry for the entity that is party to the
transaction, in addition to any other
applicable review policy stated
elsewhere in the EAR.
(2) Entity List Foreign-Direct Product
(FDP) license requirements, review
policy, and license exceptions. You may
not, without a license or license
exception, reexport, export from abroad,
or transfer (in-country) any foreignproduced item subject to the EAR
pursuant to § 734.9(e) of the EAR to any
end user described in § 734.9(e)(2) of the
EAR. All license exceptions described
in part 740 of the EAR are available for
foreign-produced items that are subject
to this license requirement if all terms
and conditions of the applicable license
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Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Rules and Regulations
exception are met and the restrictions in
§ 740.2 do not apply. The sophistication
and capabilities of technology in items
is a factor in license application review;
license applications for foreignproduced items subject to a license
requirement by this paragraph (a)(2) that
are capable of supporting the
‘‘development’’ or ‘‘production’’ of
telecom systems, equipment and
devices below the 5G level (e.g., 4G, 3G)
will be reviewed on a case-by-case basis.
*
*
*
*
*
■ 7. Supplement No. 4 to part 744 is
amended by:
■ a. Removing the phrase ‘‘see
§§ 736.2(b)(3)(vi),1’’ wherever it appears
and adding in its place ‘‘see
§§ 734.9(e),1’’ ; and
■ b. Revising footnote 1.
The revision reads as follows:
Supplement No. 4 to Part 744—Entity
List
*
*
*
*
*
1 For
this entity, see § 734.9(e) of the EAR
for foreign-produced items that are subject to
the EAR and § 744.11 of the EAR for related
license requirements, license review policy,
and applicable license exceptions.
*
*
*
*
*
PART 774—THE COMMERCE
CONTROL LIST
8. The authority citation for 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.
9. In supplement no. 1 to part 774,
Category 0, ECCN 0A919 is revised to
read as follows:
■
Supplement No. 1 to Part 774—The
Commerce Control List
*
*
*
*
*
0A919 ‘‘Military commodities’’ located and
produced outside the United States as
follows (see list of items controlled)
khammond on DSKJM1Z7X2PROD with RULES
License Requirements
Reasons for Control: RS, AT
Control(s)
RS applies to entire
entry.
AT applies to entire
entry.
VerDate Sep<11>2014
Country Chart
(see Supp. No. 1
to part 738)
RS Column 1, See
§ 742.6(a)(3) for license requirements.
AT Column 1.
16:34 Feb 02, 2022
List Based License Exceptions (See Part 740
for a description of all license exceptions)
DEPARTMENT OF HOMELAND
SECURITY
LVS: N/A
GBS: N/A
Coast Guard
List of Items Controlled
Related Controls: (1) ‘‘Military
commodities’’ are subject to the export
licensing jurisdiction of the Department of
State if they incorporate items that are
subject to the International Traffic in Arms
Regulations (ITAR) (22 CFR parts 120–130).
(2) ‘‘Military commodities’’ described in this
paragraph are subject to the export licensing
jurisdiction of the Department of State if such
commodities are described on the U.S.
Munitions List (22 CFR part 121) and are in
the United States. (3) The furnishing of
assistance (including training) to foreign
persons, whether in the United States or
abroad, in the design, development,
engineering, manufacture, production,
assembly, testing, repair, maintenance,
modification, operation, demilitarization,
destruction, processing, or use of defense
articles that are subject to the ITAR; or the
furnishing to foreign persons of any technical
data controlled under 22 CFR 121.1 whether
in the United States or abroad are under the
licensing jurisdiction of the Department of
State. (4) Brokering activities (as defined in
22 CFR 129) of ‘‘military commodities’’ that
are subject to the ITAR are under the
licensing jurisdiction of the Department of
State.
Related Definitions: ‘‘Military commodity’’
or ‘‘military commodities’’ means an article,
material or supply that is described on the
U.S. Munitions List (22 CFR part 121) or on
the Munitions List that is published by the
Wassenaar Arrangement on Export Controls
for Conventional Arms and Dual-Use Goods
and Technologies (i.e., the Wassenaar
Arrangement Munitions List (WAML)), but
does not include software, technology, any
item listed in any ECCN for which the last
three numerals are 018, or any item in the
‘‘600 series.’’
Items:
a. ‘‘Military commodities’’ produced and
located outside the United States that are not
subject to the International Traffic in Arms
Regulations (22 CFR parts 120–130) and
having any of the following characteristics:
a.1. Incorporate more than a de minimis
amount of U.S.-origin controlled content
classified under ECCNs 6A002, 6A003, or
6A993.a (having a maximum frame rate equal
to or less than 9 Hz and thus meeting the
criterion of Note 3.a to 6A003.b.4);
a.2. Incorporate more than a de minimis
amount of U.S.-origin ‘‘600 series’’ controlled
content (see § 734.4 of the EAR); or
a.3. Are direct products of U.S.-origin ‘‘600
series’’ technology or software (see § 734.9(d)
of the EAR).
b. [Reserved]
*
*
*
*
*
Thea D. Rozman Kendler,
Assistant Secretary for Export
Administration.
Jkt 256001
PO 00000
Frm 00010
Fmt 4700
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[Docket Number USCG–2021–0873]
RIN 1625–AA08
Special Local Regulations; Sector Ohio
Valley Annual and Recurring Special
Local Regulations, Update
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
The Coast Guard is amending
and updating its special local
regulations for recurring marine
parades, regattas, and other events that
take place in the Coast Guard Sector
Ohio Valley area of responsibility
(AOR). This rule informs the public of
regularly scheduled events that require
additional safety measures through the
establishing of a special local regulation.
Through this rulemaking the current list
of recurring special local regulations is
updated with revisions, additional
events, and removal of events that no
longer take place in Sector Ohio Valley’s
AOR. When these special local
regulations are enforced, certain
restrictions are placed on marine traffic
in specified areas.
DATES: This rule is effective February 3,
2022.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2021–
0873 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Petty Officer Christopher Roble,
Sector Ohio Valley, U.S. Coast Guard;
telephone (502) 779–5336, email
SECOHV-WWM@uscg.mil.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port Sector Ohio
Valley
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
[FR Doc. 2022–02302 Filed 2–2–22; 8:45 am]
BILLING CODE 3510–33–P
33 CFR Part 100
The Captain of the Port Sector Ohio
Valley (COTP) is establishing,
E:\FR\FM\03FER1.SGM
03FER1
]]>Agencies
[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Rules and Regulations]
[Pages 6022-6026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02302]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 734, 736, 744, and 774
[Docket No. 220127-0035]
RIN 0694-AI61
Foreign-Direct Product Rules: Organization, Clarification, and
Correction
AGENCY: Bureau of Industry and Security, Department of Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Industry and Security (BIS) is clarifying,
reorganizing, and making minor corrections to the provisions of the
foreign-direct product (FDP) rules. Before this final rule, the FDP
rules appeared in parts 736 and 744 of the Export Administration
Regulations (EAR); now, the rules are consolidated in part 734 of the
EAR. These revisions clarify the applicability of the FDP rules and
make one correction applicable to the FDP rules as to the term ``U.S.-
origin technology and software.''
DATES: The effective date of this rule is February 3, 2022.
FOR FURTHER INFORMATION CONTACT: Sharron Cook, 202-482-2440,
[email protected].
SUPPLEMENTARY INFORMATION:
Consolidation and Organization of the Foreign-Direct Product (FDP)
Rules
This final rule consolidates the FDP rules in Sec. 734.9 of the
Export Administration Regulations (EAR). Before publication of this
rule, the FDP rules were found in Sec. 736.2(b)(3) (General
Prohibition 3) and footnote 1 to supplement no. 4 to part 744 (the
Entity List). Placing the FDP rules in part 734 (Scope of the EAR)
clarifies that they are used to determine if a foreign-produced item is
subject to, and thus within the scope of, the EAR. To further clarify
the FPD rules, this rule moves the license requirement, license review
policy, and license exception applicability text for listed entities
from the Entity List's footnote 1 to supplement no. 4 to part 744 to
Sec. 744.11(a), where the overall license requirements pertaining to
listed entities are located.
Organization of the FDP Rules
In new Sec. 734.9, this rule separates the FDP provisions into
four paragraphs: The National Security FDP rule, the 9x515 FDP rule,
the ``600 series'' FDP rule, and the Entity List FDP rule. While the
product scope of the first three FDP rules is relatively similar in
format, the country scopes of each rule are different. This
reorganization and naming of the FDP rules does not make substantive
changes to the FDP rules. Rather, it facilitates reference to and
compliance with the rules.
The original national security-focused FDP rule is now the National
Security FDP rule. The provisions of the 9x515 FDP rule and the ``600
series'' FDP rule are reorganized into separate paragraphs with a
description of the product scope followed by the country scope. The
provisions of the Entity List FDP rule are organized with a description
of the
[[Page 6023]]
product scope followed by the applicable end-user scope.
This rule moves a definition of the term `major component' from a
note to footnote 1 to Supplement no. 4 to part 744 of the EAR to a new
definition paragraph in Sec. 734.9(a) of the EAR. In making this
change, this rule clarifies that the definition of the term `major
component' applies to all the FDP rules, and not just the Entity List
FDP rule. A `major component' of a plant located outside the United
States for all FDP rules is ``equipment'' that is essential to the
``production'' of an item, including testing ``equipment.'' As noted in
the August 20, 2020, final rule that amended the Entity List FPD rule
(see 85 FR 51596, at 51601), any equipment that is involved in any of
the production stages is considered essential. As a conforming edit, to
indicate that the term is defined in that section, BIS added single
quotation marks around the term `major component' wherever it appears
in Sec. 734.9.
Clarification of the FDP Rules
This rule further clarifies the FDP rules by adding double
quotation marks around terms that are defined in part 772 of the EAR,
e.g., direct product, technology, software, and equipment. BIS has
received requests for additional guidance about determining the scope
of production equipment in relation to the Entity List FDP rule and
clarifying that these are defined terms should help the public better
understand its obligations.
In addition, this rule clarifies in Sec. 736.2(b)(3) of the EAR
(General Prohibition Three), that foreign-direct products subject to
the EAR are not necessarily subject to a license requirement and that
license requirements must be determined based on an assessment of the
classification, destination, end user, and end use of the items.
Lastly, this rule clarifies the circumstances under which the ``600
series'' FDP rule applies to items described in Export Control
Classification Number (ECCN) 0A919. The text of ECCN 0A919 states that
it includes the foreign direct product of ``600 series'' technology or
software. However, before this rule, the text of General Prohibition
Three did not explicitly include ECCN 0A919 items when describing other
aspects of determining applicability of the ``600 series'' FDP rule.
This rule also replaces the cross reference in ECCN 0A919.a.3 as a
conforming edit.
Correction: U.S.-Origin ``technology'' and ``software''
In this rule, BIS corrects an earlier revision to General
Prohibition Three to clarify when the FDP rules are intended to apply
to the direct product of U.S.-origin technology or software. On May 19,
2020, BIS published a rule entitled ``Export Administration
Regulations: Amendments to General Prohibition Three (Foreign-Direct
Product Rule) and the Entity List'' (85 FR 29849). This rule removed
the word ``U.S.'' from the heading of Sec. 736.2(b)(3) (Foreign-Direct
Product rule) where it had been placed in front of the words
``technology and software.'' This revision was made because the scope
of the heading did not align with the scope of the Entity List foreign-
direct product rule being added to the EAR on that date. The Entity
List FDP rule in Sec. 734.9(e), and as it previously appeared in
footnote 1 to supplement no. 4 to part 744 of the EAR, applies to the
FDP of technology or software that is subject to the EAR, but that is
not necessarily technology or software of U.S. origin. The preamble of
the May 19 rule that added the Entity List FDP rule clearly stated that
BIS did not intend to change the scope of the other FDP rules, noting
General Prohibition Three: ``continues to apply to foreign-produced
items controlled for national security reasons, 9x515 items, or ``600
series'' items and has three criteria: The reason for control or
classification of the U.S. ``technology'' or ``software''; the foreign-
produced item's reason for control or classification; and the
destination country of the foreign-produced item[.]'' The May 19 rule
stated that it ``maintains the scope and criteria of General
Prohibition Three[.]'' Nevertheless, by removing the term ``U.S.'' from
General Prohibition Three's heading, BIS may have inadvertently caused
confusion as to whether the revision was intended to change the product
scope of all FDP rules, because the term ``U.S.'' had only been in the
heading and not in the other FDP rules' product scope descriptions. For
this reason, this rule clarifies the EAR by specifically stating in
each of the FDP rules that the application of the rule relates to U.S.-
origin technology or software.
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 ECRA (codified, as amended, at 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 and distributive impacts and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits and of reducing costs, harmonizing rules, and
promoting flexibility.
This final rule has not been designated a ``significant regulatory
action'' under Executive Order 12866. This rule does not contain
policies with Federalism implications as that term is defined under
Executive Order 13132.
2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person 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 final
rule does not intentionally affect any PRA collection burden, because
this intent of this final rule is to organize, clarify, and correct the
rules pertaining to the foreign direct product and in doing so BIS only
expects minimal, if any, change to the burden hours associated with
license requirements. The following is a list of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) collection
approvals that may be encountered if a license is required, and the
estimated average burden hours for each:
0694-0088, ``Simplified Network Application Processing
System,'' and carries a burden-hour estimate of 29.6 minutes for a
manual or electronic submission;
0694-0137 ``License Exceptions and Exclusions,'' which
carries a burden-hour estimate average of 1.5 hours per submission
(Note: Submissions for License Exceptions are rarely required);
0694-0096 ``Five Year Records Retention Period,'' which
carries a burden-hour estimate of less than 1 minute; and
0607-0152 ``Automated Export System (AES) Program,'' which
carries a burden-hour estimate of 3 minutes per electronic submission.
Any comments regarding these collections of information, including
[[Page 6024]]
suggestions for reducing the burden, may be submitted online at https://www.reginfo.gov/public/do/PRAMain. Find the particular information
collection by using the search function and entering either the title
of the collection or the OMB Control Number.
3. Pursuant to Section 1762 of the Export Control Reform Act of
2018 (ECRA) (50 U.S.C. 4821), this action is exempt from the
Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for
notice of proposed rulemaking, opportunity for public participation and
delay in effective date.
List of Subjects
15 CFR Part 734
Administrative practice and procedure, Exports, Inventions and
patents, Research, Science and technology.
15 CFR Part 736
Exports.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements, Terrorism.
For the reasons discussed in the preamble, the Bureau of Industry
and Security of the Department of Commerce amends 15 CFR parts 734,
736, 744, and 774 as follows:
PART 734--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS
0
1. The authority citation for part 734 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. 13637, 78 FR 16129, 3 CFR, 2014 Comp.,
p. 223; Notice of November 10, 2021, 86 FR 62891 (November 12,
2021).
0
2. Add Sec. 734.9 to read as follows:
Sec. 734.9 Foreign-Direct Product (FDP) Rules.
Foreign-produced items located outside the United States are
subject to the EAR when they are a ``direct product'' of specified
``technology'' or ``software,'' or are produced by a plant or `major
component' of a plant that itself is a ``direct product'' of specified
``technology'' or ``software.'' If a foreign-produced item is subject
to the EAR, then you should separately determine the license
requirements that apply to that foreign-produced item (e.g., by
assessing the item classification, destination, end-use, and end-user
in the relevant transaction). Not all transactions involving foreign-
produced items that are subject to the EAR require a license. Those
transactions that do require a license may be eligible for a license
exception.
(a) Definitions. The terms defined in this paragraph are specific
to Sec. 734.9 of the EAR. These terms are indicated by single
quotation marks. Terms that are in double quotation marks are defined
in part 772 of the EAR.
Major Component: A major component of a plant located outside the
United States means ``equipment'' that is essential to the
``production'' of an item, including testing ``equipment.''
(b) National Security FDP rule. A foreign-produced item is subject
to the EAR if it meets both the product scope in paragraph (b)(1) of
this section and the country scope in paragraph (b)(2) of this section.
(1) Product scope of National Security FDP rule. The product scope
applies if a foreign-produced item meets the conditions of either
paragraph (b)(1)(i) or (ii) of this section.
(i) ``Direct product'' of ``technology'' or ``software.'' A
foreign-produced item meets the product scope of this paragraph if it
meets both of the following conditions:
(A) The foreign-produced item is the ``direct product'' of U.S.-
origin ``technology'' or ``software'' that requires a written assurance
as a supporting document for a license, as defined in paragraph
(o)(3)(i) of supplement no. 2 to part 748 of the EAR, or as a
precondition for the use of License Exception TSR at Sec. 740.6 of the
EAR; and
(B) The foreign-produced item is subject to national security
controls as designated in the applicable ECCN of the Commerce Control
List in part 774 of the EAR.
(ii) ``Direct product'' of a complete plant or `major component' of
a plant. A foreign-produced item meets the product scope of this
paragraph if it meets both of the following conditions:
(A) The foreign-produced item is a ``direct product'' of a complete
plant or `major component' of a plant that itself is the ``direct
product'' of U.S.-origin ``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
(B) The foreign-produced item is subject to national security
controls as designated on the applicable ECCN of the Commerce Control
List at part 774 of the EAR.
(2) Country scope of National Security FDP rule. A foreign-produced
item meets the country scope of this paragraph if its destination is
listed in Country Group D:1, E:1, or E:2 (See supplement no.1 to part
740 of the EAR).
(c) 9x515 FDP rule. A foreign-produced item is subject to the EAR
if it meets both the product scope in paragraph (c)(1) of this section
and the country scope in paragraph (c)(2) of this section.
(1) Product scope of 9x515 FDP rule. The product scope applies if a
foreign-produced item meets the conditions of either paragraph
(c)(1)(i) or (ii) of this section.
(i) ``Direct product'' of ``technology'' or ``software.'' A
foreign-produced item meets the product scope of this paragraph if it
meets both of the following conditions:
(A) The foreign-produced item is the ``direct product'' of U.S.-
origin ``technology'' or ``software'' that is specified in ECCN 9D515
or 9E515; and
(B) The foreign-produced item is specified in a 9x515 ECCN.
(ii) ``Direct product'' of a complete plant or `major component' of
a plant. A foreign-produced item meets the product scope of this
paragraph if it meets both of the following conditions:
(A) The foreign-produced item is a ``direct product'' of a complete
plant or any `major component' of a plant that itself is the ``direct
product'' of U.S.-origin ``technology'' specified in ECCN 9E515; and
(B) The foreign-produced item is specified in a 9x515 ECCN.
(2) Country scope of 9x515 FDP rule. A foreign produced item meets
the country scope of this paragraph if its destination is listed in
Country Group D:5, E:1, or E:2 (see supplement no. 1 to part 740 of the
EAR).
(d) ``600 series'' FDP rule. A foreign-produced item is subject to
the EAR if it meets both the product scope in paragraph (d)(1) of this
section and the country scope in paragraph (d)(2) of this section.
Note 1 to paragraph (d) introductory text: As described in the
CCL, ECCN 0A919 is included in this paragraph because it includes
the ``direct product'' of ``600 series'' ``technology'' or
``software''.
(1) Product scope of ``600 series'' FDP rule. The product scope
applies if a foreign-produced item meets the conditions of either
paragraph (d)(1)(i) or (ii) of this section.
(i) ``Direct product'' of ``technology'' or ``software.'' A
foreign-produced item
[[Page 6025]]
meets the product scope of this paragraph if it meets both of the
following conditions:
(A) The foreign-produced item is the ``direct product'' of U.S.-
origin ``technology'' or ``software'' that is specified in a ``600
series'' ECCN; and
(B) The foreign-produced item is specified in a ``600 series'' ECCN
or ECCN 0A919.
(ii) ``Direct product'' of a complete plant or `major component' of
a plant. Foreign-produced items meet the product scope of this
paragraph if they meet both of the following conditions:
(A) The foreign-produced item is the ``direct product'' of a
complete plant or `major component' of a plant that itself is the
``direct product'' of U.S.-origin ``technology'' that is specified in a
``600 series'' ECCN; and
(B) The foreign produced item is specified in a ``600 series''
ECCN.
(2) Country scope of ``600 series'' FDP rule. A foreign-produced
item meets the country scope of this paragraph if it is destined to a
country listed in Country Group D:1, D:3, D:4, D:5, E:1, or E:2 (see
supplement no.1 to part 740 of the EAR).
(e) Entity List FDP rule. A foreign-produced item is subject to the
EAR if it meets both the product scope in paragraph (e)(1) of this
section and the end-user scope in paragraph (e)(2) of this section. See
Sec. 744.11(a) of the EAR for license requirements, license review
policy, and license exceptions applicable to foreign-produced items
that are subject to the EAR pursuant to this paragraph.
(1) Product Scope of Entity List FDP rule. The product scope
applies if a foreign-produced item meets the conditions of either
paragraph (e)(1)(i) or (ii) of this section.
(i) ``Direct product'' of ``technology'' or ``software.'' A
foreign-produced item meets the product scope of this paragraph if the
foreign-produced item is a ``direct product'' of ``technology'' or
``software'' subject to the EAR and specified in ECCN 3D001, 3D991,
3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994, 4E001, 4E992, 4E993,
5D001, 5D991, 5E001, or 5E991 of the Commerce Control List (CCL) in
supplement no. 1 to part 774 of the EAR; or
(ii) ``Direct product'' of a complete plant or `major component' of
a plant. A foreign-produced item meets the product scope of this
paragraph if the foreign-produced item is produced by any plant or
`major component' of a plant that is located outside the United States,
when the plant or `major component' of a plant, whether made in the
U.S. or a foreign country, itself is a ``direct product'' of
``technology'' or ``software'' subject to the EAR that is specified in
ECCN 3D001, 3D991, 3E001, 3E002, 3E003, 3E991, 4D001, 4D993, 4D994,
4E001, 4E992, 4E993, 5D001, 5D991, 5E001, or 5E991 of the CCL.
Note 2 to paragraph (e)(1): A foreign-produced item includes
any foreign-produced wafer whether finished or unfinished.
(2) End-user scope of the Entity List FDP rule. A foreign-produced
item meets the end-user scope of this paragraph if there is
``knowledge'' that:
(i) Activities involving Footnote 1 designated entities. The
foreign-produced item will be incorporated into, or will be used in the
``production'' or ``development'' of any ``part,'' ``component,'' or
``equipment'' produced, purchased, or ordered by any entity with a
footnote 1 designation in the license requirement column of the Entity
List in Supplement No. 4 to part 744 of the EAR; or
(ii) Footnote 1 designated entities as transaction parties. Any
entity with a footnote 1 designation in the license requirement column
of the Entity List in Supplement No. 4 to part 744 of the EAR is a
party to any transaction involving the foreign-produced item, e.g., as
a ``purchaser,'' ``intermediate consignee,'' ``ultimate consignee,'' or
``end-user.''
PART 736--GENERAL PROHOBITIONS
0
3. The authority citation for part 736 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 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 10, 2021, 86 FR 62891 (November 12,
2021); Notice of May 6, 2021, 86 FR 26793 (May 10, 2021).
0
4. Section 736.2 is amended by revising paragraph (b)(3) to read as
follows:
Sec. 736.2 General prohibitions and determination of applicability.
* * * * *
(b) * * *
(3) General Prohibition Three--Foreign-direct product (FDP) rules--
(i) You may not, without a license or license exception, export from
abroad, reexport, or transfer (in-country) foreign-``direct products''
subject to the EAR pursuant to Sec. 734.9 if such items are subject to
a license requirement in part 736, 742, 744, 746, or 764 of the EAR.
(ii) Each license exception described in part 740 of the EAR
supersedes General Prohibition Three if all terms and conditions of a
given license exception are met and none of the restrictions of Sec.
740.2 or 744.11(a) apply.
PART 744--CONTROL POLICY: END-USER AND END-USER BASED
0
5. The authority citation for 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 15, 2021, 86 FR 52069 (September 17, 2021); Notice of
November 10, 2021, 86 FR 62891 (November 12, 2021).
0
6. Section 744.11 is amended by revising paragraph (a) to read as
follows:
Sec. 744.11 License requirements that apply to entities acting
contrary to the national security or foreign policy interests of the
United States.
* * * * *
(a) License requirement, availability of license exceptions, and
license application review policy. (1) A license is required, to the
extent specified on the Entity List, to export, reexport, or transfer
(in-country) any item subject to the EAR when an entity that is listed
on the Entity List is a party to the transaction as described in Sec.
748.5(c) through (f). License exceptions may not be used unless
authorized in the Entity List entry for the entity that is party to the
transaction. Applications for licenses required by this section will be
evaluated as stated in the Entity List entry for the entity that is
party to the transaction, in addition to any other applicable review
policy stated elsewhere in the EAR.
(2) Entity List Foreign-Direct Product (FDP) license requirements,
review policy, and license exceptions. You may not, without a license
or license exception, reexport, export from abroad, or transfer (in-
country) any foreign-produced item subject to the EAR pursuant to Sec.
734.9(e) of the EAR to any end user described in Sec. 734.9(e)(2) of
the EAR. All license exceptions described in part 740 of the EAR are
available for foreign-produced items that are subject to this license
requirement if all terms and conditions of the applicable license
[[Page 6026]]
exception are met and the restrictions in Sec. 740.2 do not apply. The
sophistication and capabilities of technology in items is a factor in
license application review; license applications for foreign-produced
items subject to a license requirement by this paragraph (a)(2) that
are capable of supporting the ``development'' or ``production'' of
telecom systems, equipment and devices below the 5G level (e.g., 4G,
3G) will be reviewed on a case-by-case basis.
* * * * *
0
7. Supplement No. 4 to part 744 is amended by:
0
a. Removing the phrase ``see Sec. Sec. 736.2(b)(3)(vi),\1\'' wherever
it appears and adding in its place ``see Sec. Sec. 734.9(e),\1\'' ;
and
0
b. Revising footnote 1.
The revision reads as follows:
Supplement No. 4 to Part 744--Entity List
* * * * *
\1\ For this entity, see Sec. 734.9(e) of the EAR for foreign-
produced items that are subject to the EAR and Sec. 744.11 of the
EAR for related license requirements, license review policy, and
applicable license exceptions.
* * * * *
PART 774--THE COMMERCE CONTROL LIST
0
8. The authority citation for 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
9. In supplement no. 1 to part 774, Category 0, ECCN 0A919 is revised
to read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
0A919 ``Military commodities'' located and produced outside the United
States as follows (see list of items controlled)
License Requirements
Reasons for Control: RS, AT
Country Chart (see Supp. No.
Control(s) 1 to part 738)
RS applies to entire entry................ RS Column 1, See Sec.
742.6(a)(3) for license
requirements.
AT applies to entire entry................ AT Column 1.
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
LVS: N/A
GBS: N/A
List of Items Controlled
Related Controls: (1) ``Military commodities'' are subject to
the export licensing jurisdiction of the Department of State if they
incorporate items that are subject to the International Traffic in
Arms Regulations (ITAR) (22 CFR parts 120-130). (2) ``Military
commodities'' described in this paragraph are subject to the export
licensing jurisdiction of the Department of State if such
commodities are described on the U.S. Munitions List (22 CFR part
121) and are in the United States. (3) The furnishing of assistance
(including training) to foreign persons, whether in the United
States or abroad, in the design, development, engineering,
manufacture, production, assembly, testing, repair, maintenance,
modification, operation, demilitarization, destruction, processing,
or use of defense articles that are subject to the ITAR; or the
furnishing to foreign persons of any technical data controlled under
22 CFR 121.1 whether in the United States or abroad are under the
licensing jurisdiction of the Department of State. (4) Brokering
activities (as defined in 22 CFR 129) of ``military commodities''
that are subject to the ITAR are under the licensing jurisdiction of
the Department of State.
Related Definitions: ``Military commodity'' or ``military
commodities'' means an article, material or supply that is described
on the U.S. Munitions List (22 CFR part 121) or on the Munitions
List that is published by the Wassenaar Arrangement on Export
Controls for Conventional Arms and Dual-Use Goods and Technologies
(i.e., the Wassenaar Arrangement Munitions List (WAML)), but does
not include software, technology, any item listed in any ECCN for
which the last three numerals are 018, or any item in the ``600
series.''
Items:
a. ``Military commodities'' produced and located outside the
United States that are not subject to the International Traffic in
Arms Regulations (22 CFR parts 120-130) and having any of the
following characteristics:
a.1. Incorporate more than a de minimis amount of U.S.-origin
controlled content classified under ECCNs 6A002, 6A003, or 6A993.a
(having a maximum frame rate equal to or less than 9 Hz and thus
meeting the criterion of Note 3.a to 6A003.b.4);
a.2. Incorporate more than a de minimis amount of U.S.-origin
``600 series'' controlled content (see Sec. 734.4 of the EAR); or
a.3. Are direct products of U.S.-origin ``600 series''
technology or software (see Sec. 734.9(d) of the EAR).
b. [Reserved]
* * * * *
Thea D. Rozman Kendler,
Assistant Secretary for Export Administration.
[FR Doc. 2022-02302 Filed 2-2-22; 8:45 am]
BILLING CODE 3510-33-P
