Industry and Security Bureau – Federal Register Recent Federal Regulation Documents
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Revisions to the Export Administration Regulations Based Upon a Systematic Review of the CCL
This rule amends the Export Administration Regulations (EAR) to make revisions to the EAR as a result of a systematic review of the Commerce Control List (CCL) that was conducted by the Bureau of Industry and Security (BIS). This rule is the second phase of the regulatory implementation of the results of a review of the CCL that was conducted by BIS starting in 2007. The BIS CCL review benefited from input received from BIS's Technical Advisory Committees (TACs) and comments that were received from the interested public in response to the publication of a BIS notice of inquiry on July 17, 2007. The revisions in this rule include clarifications to existing controls, eliminating redundant or outdated controls, establishing more focused and rationalized controls, and adding additional controls for clarity or for consistency with international regimes.
Export Administration Regulations: Establishment of License Exception Intra-Company Transfer (ICT)
This proposed rule would amend the Export Administration Regulations (EAR) to establish a new license exception entitled ``Intra-Company Transfer (ICT).'' This license exception would allow an approved parent company and its approved wholly-owned or controlled in fact entities to export, reexport, or transfer (in-country) many items on the Commerce Control List (CCL) among themselves for internal company use. Prior authorization from the Bureau of Industry and Security (BIS) would be required to use this license exception. This rule describes the criteria pursuant to which entities would be eligible to use License Exception ICT and the procedure by which they must apply for such authorization. This proposed rule is one of the initiatives in the export control directive announced by the President on January 22, 2008.
Encryption Simplification
This interim final rule amends the Export Administration Regulations (EAR) to make the treatment of encryption items more consistent with the treatment of other items subject to the EAR, as well as to simplify and clarify regulations pertaining to encryption items. The restrictions pertaining to technical assistance by U.S. persons with respect to encryption items are removed, because the current export and reexport restrictions set forth in the EAR for technology already include technical assistance. This rule also removes License Exception KMI as it has become obsolete because of developments in uses of encryption. In addition, this rule removes notification requirements for items classified as 5A992, 5D992, and 5E992. This rule also increases certain parameters under License Exception ENC, which is intended to reflect advances in technology. This rule adds two new review and reporting requirement exclusion paragraphs under License Exception ENC for wireless ``personal area network'' items and for ``ancillary cryptography'' items. This rule also adds Bulgaria, Canada, Iceland, Romania, and Turkey to the list of countries that receive favorable treatment under License Exception ENC. Commodities and software pending mass market review may no longer be exported under ECCNs 5A992 and 5D992 using No License Required (NLR). However, once the mass market review has been received by BIS, then such commodities and software may be exported using License Exception ENC under ECCNs 5A002 and 5D002. This rule will reduce the paperwork burden on the public by 9% (annual dollar amount savings of approximately $14,000 to the public and $5,000 to the U.S. Government), because of the removal of certain notification requirements, addition of countries to the list of those receiving favorable treatment under License Exception ENC, and the increase of reporting and review requirement exclusions. The Departments of Commerce, State and Defense will continue to review export control, license review policies, and license exceptions for encryption items in the EAR.
De Minimis U.S. Content in Foreign Made Items
The Department of Commerce is revising the provisions of the Export Administration Regulations (EAR) that pertain to foreign-made items that incorporate controlled U.S.-origin items, i.e., the EAR's ``de minimis'' rules. This rule amends the EAR to change the de minimis calculation for foreign produced hardware that is bundled with U.S.- origin software. This rule also clarifies the definition of `incorporate' as it is applied to the de minimis rules and to the medical statement of understanding. This rule also removes the requirement to submit a one-time report to the Bureau of Industry and Security for foreign-made software that incorporates U.S.-origin software. In addition, this rule revises the ``Steps for Using the EAR'' and General Prohibition Two with regard to the de minimis rules in order to reduce redundancies in the EAR and harmonize the provisions with other revisions made by this rule.
Revisions to the Unverified List-Guidance as to “Red Flags” Under Supplement No. 3 to 15 CFR Part 732
On June 14, 2002, the Bureau of Industry and Security (``BIS'') published a notice in the Federal Register that set forth a list of persons in foreign countries who were parties to past export transactions where pre-license checks (``PLC'') or post-shipment verifications (``PSV'') could not be conducted for reasons outside the control of the U.S. Government (``Unverified List''). Additionally, on July 16, 2004, BIS published a notice in the Federal Register that advised exporters that the Unverified List would also include persons in foreign countries in transactions where BIS is not able to verify the existence or authenticity of the end-user, intermediate consignee, ultimate consignee, or other party to the transaction. These notices advised exporters that the involvement of a listed person as a party to a proposed transaction constitutes a ``red flag'' as described in the guidance set forth in Supplement No. 3 to 15 CFR Part 732, requiring heightened scrutiny by the exporter before proceeding with such a transaction. The notices also stated that, when warranted, BIS would remove persons from the Unverified List. This notice removes one entity from the Unverified List based upon recently conducted PSVs or scheduled PSVs. The entity is: Fuchs Oil Middle East Ltd., P.O. Box 7955, Sharjah Airport Intl. Free Zone, Sharjah, United Arab Emirates.
National Defense Stockpile Market Impact Committee Request for Public Comments on the Potential Market Impact of Proposed Stockpile Disposals for Fiscal Year 2010
This notice is to advise the public that the National Defense Stockpile Market Impact Committee, co-chaired by the Departments of Commerce and State, is seeking public comments on the potential market impact of the proposed disposal levels of excess materials for the Fiscal Year (FY) 2010 Annual Materials Plan.
Addition of Certain Persons to the Entity List; Removal of General Order From the Export Administration Regulations (EAR)
This rule amends the Export Administration Regulations (EAR) by adding additional persons to the Entity List (Supplement No. 4 to Part 744) on the basis of section 744.11 of the EAR. These additional persons being added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. Two types of persons are being added to the Entity List by this rule. The first type is persons that were listed on General Order No. 3 prior to publication of this rule, that are now moved to the Entity List with publication of this rule. There were 33 persons listed on the general order and all of those persons are now listed on the Entity List with the publication of this rule. These were persons concerning whom the U.S. Government possessed information regarding the acquisition or attempted acquisition of electronic components and devices (``commodities'') capable of being used in the construction of Improvised Explosive Devices (``IEDs''). These commodities have been, and may continue to be, employed in IEDs or other explosive devices used against Coalition Forces in Iraq and Afghanistan. The second type of persons being added to the Entity List with this rule are certain additional persons that were not previously listed on the general order, but are of concern to the U.S. Government for the same reasons as those other persons that were previously listed on the general order. This rule adds these additional persons to the Entity List also on the basis of section 744.11. This rule removes and reserves the general order because all of the persons from the general order are now listed on the Entity List with the publication of this rule. The Entity List provides notice to the public that certain exports and reexports to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of License Exceptions in such transactions is limited.
Effects of Foreign Policy-Based Export Controls
The Bureau of Industry and Security (BIS) is reviewing the foreign policy-based export controls in the Export Administration Regulations (EAR) to determine whether they should be modified, rescinded or extended. To help make these determinations, BIS is seeking comments on how existing foreign policy-based export controls have affected exporters and the general public. Additionally, BIS is particularly interested in comments regarding the Entity List (Supplement No. 4 to part 744 of the EAR), including on its usefulness and format, as well as on the specific entities listed and the licensing policies and requirements assigned to each.
Clarification of the Classification of Crew Protection Kits on the Commerce Control List
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to clarify that crew protection kits used as protective cabs on construction equipment are on the Wassenaar Arrangement Munitions List and are correctly classified on the Commerce Control List in the entry that applies to construction equipment built to military specifications.
Addition of Kosovo in the Export Administration Regulations
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to establish export licensing requirements for Kosovo.
Foreign Availability Assessment: Uncooled Thermal Imaging Cameras Incorporating Microbolometer Focal Plane Arrays
This notice is to announce that the Bureau of Industry and Security (BIS) is initiating a foreign availability assessment pursuant to sections 5(f) and 5(h) of the Export Administration Act of 1979, as amended (EAA). The Office of Technology Evaluation (OTE) will oversee the assessment of the foreign availability in China of uncooled thermal imaging cameras incorporating microbolometer focal plane arrays. BIS is also seeking public comments on the foreign availability of these cameras in China.
Reopening of Request for Public Comments on Deemed Export Advisory Committee Recommendations: Narrowing the Scope of Technologies on the Commerce Control List Subject to Deemed Export Licensing Requirements and Implementing a More Comprehensive Set of Criteria for Assessing Probable Country Affiliation for Foreign Nationals
This notice reopens the comment period on the notice of inquiry (73 FR 28795) that sought comments regarding two specific recommendations made by the Deemed Export Advisory Committee (DEAC) with respect to the Bureau of Industry and Security's (BIS's) deemed export licensing policy. The new comment period deadline is September 22, 2008.
Authorization To Impose License Requirements for Exports or Reexports to Entities Acting Contrary to the National Security or Foreign Policy Interests of the United States
The Entity List (Supplement No. 4 to Part 744 of the Export Administration Regulations (EAR)) provides notice to the public that certain exports and reexports to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of License Exceptions in such transactions is limited. This rule expands the scope of reasons for adding parties to the Entity List. This rule also amends the EAR to state explicitly that a party listed on the Entity List has a right to request that its listing be removed or modified and sets procedures for addressing such requests.
Mandatory Electronic Filing of Export and Reexport License Applications, Classification Requests, Encryption Review Requests, and License Exception AGR Notifications
This rule requires that export and reexport license applications, classification requests, encryption review requests, License Exception AGR notifications and related documents be submitted to the Bureau of Industry and Security (BIS) via its Simplified Network Application Process (SNAP-R) system. This requirement does not apply to applications for Special Comprehensive Licenses or in certain situations in which BIS authorizes paper submissions.
Technical Advisory Committees; Notice of Recruitment of Private-Sector Members
Six Technical Advisory Committees (TACs) advise the Department of Commerce on the technical parameters for export controls applicable to dual-use commodities and technology and on the administration of those controls. The TACs are composed of representatives from industry and Government representing diverse points of view on the concerns of the exporting community. Industry representatives are selected from firms producing a broad range of goods, technologies, and software presently controlled for national security, non-proliferation, foreign policy, and short supply reasons or that are proposed for such controls, balanced to the extent possible among large and small firms. TAC members are appointed by the Secretary of Commerce and serve terms of not more than four consecutive years. The membership reflects the Department's commitment to attaining balance and diversity. TAC members must obtain secret-level clearances prior to appointment. These clearances are necessary so that members may be permitted access to the classified information needed to formulate recommendations to the Department of Commerce. Each TAC meets approximately four times per year. Members of the Committees will not be compensated for their services. The six TACs are responsible for advising the Department of Commerce on the technical parameters for export controls and the administration of those controls within the following areas: Information Systems TAC: Control List Categories 3 (electronics), 4 (computers), and 5 (telecommunications and information security); Materials TAC: Control List Category 1 (materials, chemicals, microorganisms, and toxins); Materials Processing Equipment TAC: Control List Category 2 (materials processing); Regulations and Procedures TAC: The Export Administration Regulations (EAR) and Procedures for implementing the EAR; Sensors and Instrumentation TAC: Control List Category 6 (sensors and lasers); and Transportation and Related Equipment TAC: Control List Categories 7 (navigation and avionics), 8 (marine), and 9 (propulsion systems, space vehicles, and related equipment). To respond to this recruitment notice, please send a copy of your resume to Ms. Yvette Springer at Yspringer@bis.doc.gov. Deadline: This Notice of Recruitment will be open for one year from its date of publication in the Federal Register. For Further Information Contact: Ms. Yvette Springer on (202) 482- 2813.
Implementation of the Understandings Reached at the April 2008 Australia Group (AG) Plenary Meeting; Additions to the List of States Parties to the Chemical Weapons Convention (CWC)
The Bureau of Industry and Security (BIS) is publishing this final rule to amend the Export Administration Regulations (EAR) to implement the understandings reached at the April 2008 plenary meeting of the Australia Group (AG). This final rule amends the EAR to reflect changes to the AG ``Control List of Biological Agents'' that the countries participating in the AG adopted at the plenary meeting. Specifically, this rule revises the Commerce Control List (CCL) entry that controls animal pathogens on the AG ``Control List of Biological Agents'' by revising the listing for avian influenza viruses to replace the description of highly pathogenic avian influenza (HPAI) with new HPAI language that is based on the definition currently used by the World Organization for Animal Health (OIE). This rule also amends the provisions in the EAR that describe the advance notification and annual report requirements for exports of Chemical Weapons Convention (CWC) Schedule 1 chemicals and the End-Use Certificate requirement for certain exports of CWC Schedule 3 chemicals by updating the fax number and address for submitting these documents to BIS. Finally, this rule amends the list of countries that currently are States Parties to the CWC by adding ``Congo (Republic of the)'' and ``Guinea-Bissau,''which recently became States Parties. As a result of this change, the CW (Chemical Weapons) license requirements and policies in the EAR that apply to these two countries now conform with those applicable to other CWC States Parties.
Proposed Information Collection; Comment Request; Multipurpose Application
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Proposed Information Collection; Comment Request; Import Certificates, End-User Certificates, and Delivery Verification Procedures
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Revisions to the Export Administration Regulations Based on the 2007 Missile Technology Control Regime Plenary Agreements
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to reflect changes to the Missile Technology Control Regime (MTCR) Annex that were agreed to by MTCR member countries at the November 2007 Plenary in Athens, Greece.
Establishment of the Emerging Technology and Research Advisory Committee
The Bureau of Industry and Security (BIS) is announcing the creation of and recruiting individuals for a technical advisory committee that will review and provide recommendations to the Department of Commerce on emerging technology and research issues. The Emerging Technology and Research Advisory Committee (ETRAC) will advise the Department and other agency officials on (i) identifying emerging technologies and research and development activities that may be of interest from a dual-use perspective; (ii) prioritizing new and existing controls to determine which are of greatest consequence to national security from a deemed export perspective; and (iii) addressing the implications of dual-use export control requirements on research activities.
Reporting on Offsets Agreements in Sales of Weapon Systems or Defense-Related Items to Foreign Countries or Foreign Firms for Calendar Year 2007
This notice is to remind the public that U.S. firms are required to report annually to the Department of Commerce (Commerce) on contracts for the sale of defense-related items or defense-related services to foreign countries or foreign firms that are subject to offsets agreements exceeding $5,000,000 in value. U.S. firms are also required to report annually to Commerce on offsets transactions completed in performance of existing offsets commitments for which offsets credit of $250,000 or more has been claimed from the foreign representative. Such reports must be submitted to Commerce no later than June 15, 2008.
Request for Public Comments on Deemed Export Advisory Committee Recommendations: Narrowing the Scope of Technologies on the Commerce Control List Subject to Deemed Export Licensing Requirements and Implementing a More Comprehensive Set of Criteria for Assessing Probable Country Affiliation for Foreign Nationals
The Bureau of Industry and Security (BIS) is publishing a notice of inquiry in order to elicit comments regarding two specific recommendations made by the Deemed Export Advisory Committee (DEAC) with respect to BIS's deemed export licensing policy. BIS is requesting comments on whether the scope of technologies on the Commerce Control List that are subject to deemed export licensing requirements should be narrowed, and if so, which technologies should be subject to deemed export licensing requirements. Additionally, BIS is seeking comments on whether a more comprehensive set of criteria should be used to assess country affiliation for foreign nationals with respect to deemed exports.
Technical Corrections to the Export Administration Regulations Based Upon a Systematic Review of the CCL; Correction
The Bureau of Industry and Security published a final rule in the Federal Register on April 18, 2008 (73 FR 21035), that amended the Export Administration Regulations (EAR) to make various technical corrections and clarifications to the EAR as a result of a systematic review of the CCL. The amendments in that final rule included a revision to the ``Unit'' paragraph in the List of Items Controlled section of Export Control Classification Number (ECCN) 9A004. However, because of an inadvertent formatting error in a rule published on March 18, 1999 (64 FR 13338), the ``Related Controls'' paragraph in that CCL entry appeared to be a part of the ``Unit'' paragraph. This resulted in the inadvertent removal of the ``Related Controls'' paragraph in the List of Items Controlled section of that ECCN entry when the ``Unit'' paragraph was revised with the publication of the April 18, 2008, rule. Today's rule corrects that inadvertent removal by adding the ``Related Controls'' paragraph back into that ECCN entry.
Proposed Information Collection; Comment Request; Prior Notification of Exports Under License Exception Agriculture Commodities
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Technical Corrections to the Export Administration Regulations Based Upon a Systematic Review of the CCL
This rule amends the Export Administration Regulations (EAR) to make various technical corrections and clarifications to the EAR as a result of a systematic review of the Commerce Control List (CCL) that was conducted by the Bureau of Industry and Security (BIS). This rule is the first phase of the regulatory implementation of the results of a review of the CCL that was conducted by BIS starting in 2007. The BIS CCL review benefited from input received from BIS's Technical Advisory Committees (TACs) and comments that were received from the interested public in response to the publication of a BIS notice of inquiry on July 17, 2007 (72 FR 39052).
Conforming Changes to Certain End-User/End-Use Based Controls in the EAR; Clarification of the Term “Transfer” and Related Terms as Used in the EAR
The Bureau of Industry and Security (BIS) proposes to amend the Export Administration Regulations (EAR) by making conforming changes in certain end-user/end-use controls in the EAR to ensure that the terminology used to describe each type of end-user/end-use control is consistent, to the fullest extent possible, with the terminology in other such controls in the EAR. The proposed amendments would clarify that a party cannot proceed with an export, reexport, or transfer (in- country) that is in transit at the time the party is informed by BIS that a license is required (in accordance with certain end-user/end-use controls in the EAR), unless that party first obtains a license from BIS authorizing the completion of the transaction. These proposed changes to part 744 are intended to enhance the ability of BIS to stop items subject to the EAR, including items not on the Commerce Control List, from being exported, reexported or transferred (in-country) when there is an unacceptable risk that such items will be used in, or diverted to, any of the proliferation activities specified in Sec. Sec. 744.2, 744.3, 744.4 and 744.6 of the EAR. This rule also proposes to amend the EAR by revising the definition of the term ``transfer'' and certain related terms, to provide greater clarity regarding these provisions.
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