FINAL RULES PUBLISHED IN THE FEDERAL REGISTER DURING 2000
DEPARTMENT OF COMMERCE, BUREAU OF EXPORT ADMINISTRATION
EXPORT ADMINISTRATION REGULATIONS
(15 CFR Part 730 et seq.)

NOTE: CHANGES TO THE EXPORT ADMINISTRATION REGULATIONS LISTED BELOW ARE NUMBERED CONSECUTIVELY, BEGINNING IN JANUARY OF THE NEW YEAR.

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 1. Revisions to Encryption Items (65 FR 2491 on January 14, 2000)

Commentary: This rule amends the Export Administration Regulations (EAR) to allow the export and reexport of any encryption commodity or software to individuals, commercial firms, and other non-government end-users in all destinations.  It also allows exports and reexports of retail encryption commodities and software to all end-users in all destinations.  Post-export reporting requirements are streamlined, and changes are made to reflect amendments to the Wassenaar Arrangement.  This rule implements the encryption policy announced by the White House on September 16 and will simplify U.S. Encryption export rules. Restrictions on terrorist supporting states (Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria), their nationals and other sanctioned entities are not changed by this rule.  The rule is effective January 14, 2000.  Comments must be received on or before May 15, 2000.

2.   Revisions to License Exception CTP (65 FR 12919 on March 10, 2000)

Commentary: The Bureau of Export Administration has amended the Export Administration Regulations (EAR) by revising License Exception CTP to reflect continuing technological advancement in the computer industry.

Summary of Revisions to License Exception CTP (65 FR 12919, March 10, 2000)

 Accordingly, High Performance Computers (HPCs) with a composite theoretical performance (CTP) of up to 33,000 millions of theoretical operations per second (MTOPS) can be exported to Computer Tier 2 countries, and HPCs with a CTP up to 20,000 MTOPS can be exported to civilian end-users and end-uses in Computer Tier 3 destinations under License Exception CTP. For military end-users and end-uses in Computer Tier 3 countries, the CTP limit remains at 6,500 MTOPS until August 14, 2000, when it is raised to 12,500 MTOPS.  This coincides with the date this rule raises the advance notification level for HPC exports to Computer Tier 3 countries to 12,500 MTOPS.  As required by the National Defense Authorization Act of 1998 (NDAA), changes in the advance notification level for HPC exports to Tier 3 destinations are only effective 180 days following the submission of a report to Congress.  This report was sent to Congress on February 16, 2000. This rule also moves Romania from Computer Tier 3 to Computer Tier 2, effective June 15, 2000, and links the level of HPCs requiring post-shipment verification reporting to the advance notification level for HPX exports to Computer Tier3 destinations.  This rule also revises the Commerce Control List (CCL) to liberalize the national security thresholds for digital computers to conform with recently agreed changed in the Wassenaar List of Dual-Use Goods and Technologies, and corrects/updates the mailing address for submission of post-shipment reports.

 3.   Correction to Revisions to the Export Administration Regulations (65 FR 13879 on March 15, 2000)

Commentary: This rule corrects an error that appeared in the March 10th rule by inserting the word “not” which was inadvertently omitted from the note to the License Requirements Section of Export Control Classification Number 4A003.

4.  Export Administration Regulations Entity List: Removal of Entities, Revision in License Policy and Reformat of List (65 FR 14444 on March 17, 2000)

Commentary: This rule removes 51 Indian entities and modifies one entity’s listing. In addition, this rule revised the license review policy for items classified as EAR99 (items that are subject to the EAR, but are not listed on the Commerce Control List) to Indian and Pakistani government, private and parastatal entities from a presumption of denial to a presumption of approval.  Also, to correct two inadvertent errors in the publication of the Entity List, this rule: re-designates one existing Pakistani entry on the list as a government entity instead of a military facility; and re-designates one existing Indian entry on the list as a government entity instead of a private or parastatal entity, which also correcting the organization with which it was previously identified.  Finally, after consultation between BXA and the Department of State, the subordinates of Indian and Pakistani organizations that are on the Entity List will be moved to Appendix A and Appendix B of the Entity List, respectively.  BXA anticipates this change in policy will increase the number of license applications submitted to BXA.

5.  Editorial Clarification and Revisions to the Export Administration Regulations (65 FR 14858 on March 20, 2000)

Commentary: This rule amends the Export Administration Regulations (EAR) to make certain editorial revisions and clarifications.

6.   Revision to the Export Administration Regulations; Administrative Enforcement Proceedings (65 FR 14862 on March 20, 2000)

Commentary: The Bureau of Export Administration (BXA) is amending the Export Administration Regulations (EAR) by providing that, notwithstanding certain circumstances, when determining whether to deny the export privileges of a person convicted of violating certain laws, BXA will give prior notice of this administrative action and an opportunity for that person to make written comments to BXA stating why a denial is not appropriate. This rule further clarifies the scope of the export privileges, which may be denied.  In addition, it clarifies in Part 756 of the EAR that these administrative procedures are subject to the appeals procedures described in that part.

7. Revision and Clarifications to the Export Administration Regulations; Commerce Control List (65 FR 34073 on May 26, 2000)

Commentary: The Bureau of Export Administration (BXA) has published a final rule that revised the Commerce Control List (“CCL”) based on Wassenaar Arrangement review on July 23, 1999. This rule corrects a number of inadvertent errors to the EAR that appeared in the July 23rd rule. Of particular interests to electronics, computer, telecommunications and networking companies, BXA has published important changes to the controls to Export Control Classification Numbers 3B991, 5A001, 5A991, 5B001, 5D001, 5E001 and 5E991 to reflect removal of national security controls in accordance with the Wassenaar Arrangement and incorporation of new anti-terrorism controls.

8. Public information, Freedom of Information Act implementation, and Privacy Act implementation (65 FR 34606 on May 31, 2000)

Commentary:  The Department of Commerce (Department) is proposing revisions of regulations regarding the Freedom of Information Act (FOIA), Privacy Act (PA), and declassification and public availability of national security information.  The proposed amendment to 15 CFR 4 adds new provisions to implement the EFOIA Amendments of 1996.  New provisions implementing the amendments are found at Sec. 4.2(b) (electronic reading rooms), Sec. 4.6(b) (timing of responses), Sec. 4.6(d) (multitrack processing), Sec. 4.6(e) (expedited processing), Sec. 4.7(a), (b)(3) (deletion marking and estimation of volume of information withheld), Sec. 4.11(b)(3) (format of disclosure), and Sec. 4.11(b)(8) (electronic searches). 

The Department proposes to remove part 4b, which contains the Department's PA regulations, and to incorporate revised PA provisions as a new subpart B to part 4. The proposed subpart B expands the list of PA officers to include all FOIA officers; changes the official responsible for adjudicating PA appeals of denials of requests for access, correction, and amendment from the General Counsel to the Assistant General Counsel for Administration; and streamlines and clarifies the regulations.

 The Department proposes to revise Sec. 4.8 Classified Information so that when processing a request for information classified under Executive Order 12958 or any other executive order concerning the classification of records, the information shall be reviewed to determine whether it should remain classified. Ordinarily the component or other Federal agency that classified the information should conduct the review, except that if a record contains information that has been derivatively classified by a component because it contains information classified by another component or agency, the component shall refer the responsibility for responding to the request to the component or agency that classified the underlying information. Information determined to no longer require classification shall not be withheld on the basis of FOIA Exemption 1 (5 U.S.C. 552(b)(1)). Appeals involving classified information shall be processed in accordance with Sec. 4.10(c).

Section 4.30 of the proposed rule allows the disclosure of a record to a person other than the individual to whom it pertains in certain instances.  Circumstances include when permitted under 5 U.S.C. 552a(b)(1) through (12).  This allows for disclosure to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties; when required under 5 U.S.C. 552; for a routine use as defined 5 U.S.C. 552a(a)(7) and as described under 5 U.S.C. 552a(e)(4)(D); to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought; or to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.

The Department also sets forth General Exemptions to the proposed rule which include individuals identified in Export Administration compliance proceedings or investigations--COMMERCE/ITA-1. Pursuant to 5 U.S.C. 552a(j)(2), these records are determined to be exempt from all provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i). These exemptions are necessary to insure the proper functioning of the law enforcement activity, to protect confidential sources of information, to fulfill promises of confidentiality, to maintain the integrity of the law enforcement process, to avoid premature disclosure of the knowledge of criminal activity and the evidentiary bases of possible enforcement actions, to prevent interference with law enforcement proceedings, to avoid disclosure of investigative techniques, and to avoid the endangering of law enforcement personnel. Section 7(c) of the Export Administration Act of 1969, as amended, also protects this information from disclosure.

Section 4.34 specifies Specific Exemptions, which include: Some systems of records under the Act which are maintained by the Department and contain, from time to time, material subject to the exemption appearing at 5 U.S.C. 552a(k)(1), relating to national defense and foreign policy materials. The systems of records published in the Federal Register by the Department which are within this exemption are: COMMERCE/ITA-1, COMMERCE/ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11, COMMERCE/PAT-TM-4, COMMERCE/PAT-TM-6, COMMERCE/PAT-TM-7, COMMERCE/PAT- TM-8, COMMERCE/PAT-TM-9, COMMERCE/DEPT-12, COMMERCE/DEPT-13, and COMMERCE/DEPT-14; and the Department hereby asserts a claim to exemption of such materials wherever they might appear in such systems of records, or any systems of records, at present or in the future. The materials would be exempt from 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f). The reason therefore is to protect the materials required by Executive order to be kept secret in the interest of the national defense and foreign policy.

Specific exemptions with respect to systems of records maintained by the Department, including the parts of each system to be exempted, the provisions of the Act from which they are exempted, and the justification for the exemption, include the following: (1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt hereunder appear in paragraph (a) of this section. The claims for exemption of COMMERCE/DEPT-12, COMMERCE/ITA-1, and COMMERCE/NOAA-11 under this paragraph are subject to the condition that the general exemption claimed in Sec. 4.33(b)(3) is held to be invalid. (2)(i) Exempt under 5 U.S.C. 552a(k)(2). The systems of records exempt (some only conditionally), the sections of the Act from which exempted, and the reasons therefor are as follows: (A) Individuals identified in Export Administration compliance proceedings or investigations--COMMERCE/ITA-1, but only on condition that the general exemption claimed in Sec. 4.33(b)(1) is held to be invalid; (B) Individuals involved in export transactions--COMMERCE/ITA-2; (E) Investigative Records--Persons Within the Investigative Jurisdiction of the Department--COMMERCE/DEPT-13.   

9. Restrictive Trade Practices or Boycotts (65 FR 34942 on June 1, 2000) 

Commentary: The Bureau of Export Administration (BXA) has amended the Export Administration Regulations (EAR) to make certain editorial revisions and clarifications to the antiboycott provisions of the EAR, 15 CFR Part 760.  This rule removes all references to the 1978 grace period, including deletions of language in the text of the regulations and the interpretive examples that no longer apply.  In some cases new text has been added to preserve the substantive meaning of the regulation or example.  The rule also removes the phrase “effective date of this part” and replaces it with the January 18, 1978 date of publication of the original rule.  In addition, the rule provides clarifying language in instances where the original text was unclear, as well as making typographical corrections, as appropriate.

10. Expansion of License Exception CIV Eligibility for “Microprocessors” controlled by ECCN 3A001 and Graphics Accelerators Controlled by ECCN 4A003 (65 FR 37039 on June 13, 2000)

Commentary:  Consistent with technological changes, the Department of Commerce, Bureau of Export Administration (BXA) has published an interim rule adjusting the License Exception CIV eligibility level for microprocessors controlled by Export Control Classification Number (ECCN) 3A001 from a composite theoretical performance (CTP) of equal to or less than 3500 million theoretical operations per second (MTOPS) to a CTP of equal to or less than 4500 MTOPS. The rule also adjusts the License Exception CIV eligibility level for graphics accelerators controlled by ECCN 4A003 from 75 million vectors per second to 100 million vectors per second.  License Exception CIV authorizes exports and reexports to civil end-users for civil end-uses in Country Group D:1.  CIV may not be used for exports or reexports to military end-users or end-uses. 

11. Easing of Export Restrictions on North Korea (65 FR 38148 on June 19, 2000)

12.  Parties to a Transaction and Their Responsibilities, Routed Export Transactions, Shipper’s Export Declarations, the Automated Export System (AES), and Export Clearance (65 FR 42565 on July 10, 2000)

Commentary: The Bureau of Export Administration (BXA) has revised the Export Administration Regulations (EAR) in order to simplify and clarify the export clearance process and facilitate compliance.  BXA has defined new terms, including “principal parties in interest”, “routed Export transaction”, and “end-user”, and clarified an existing one (notably the definition of “exporter”). The amendments ensure that for every transaction subject to the EAR, some party to the transaction is clearly responsible for determining licensing authority (License, License Exception, or NLR), and for obtaining the appropriate license or other authorization.  The amendments also encourage communication among all parties to a transaction to ensure that each party knows its responsibilities in order to comply with the EAR.  The rule also institutes a requirement that the export licensee communicate license conditions to those parties to whom conditions apply and, when required by the license, obtain written acknowledgement of receipt of conditions.  Finally, these amendments significantly revise the first six sections of Part 758 of the EAR by reorganizing, streamlining and clarifying necessary or redundant provisions.

13.   Implementation of the Wassenaar Arrangement List of Dual-Use Items: Revisions to Categories 1, 2, 3, 4, 5, 6 and 9 of the Commerce Control List (65 FR 43130 on July 12, 2000)

Commentary:  The Bureau of Export Administration has revised certain entries on the Commerce Control List that are controlled for national security reasons in Categories 1, 2, 3, 4, 5, 6 and 9 to conform with the changes in the Wassenaar Arrangement’s List of Dual-Use Goods and Technologies maintained and agreed to by governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. The most significant revisions include liberalizations in national security thresholds for microprocessors.  This rule increases the composite theoretical performance (CTP) for microprocessors in 3A001.a.3.a from 260 million operations per second (MTOPS) to 3,500 MTOPS to account for technological advances and controllability factors. 

14.   Revisions and Clarifications to the Export Administration Regulations; Commerce Control List (65 FR 43406 on July 13, 2000)

Commentary:  The Bureau of Export Administration has published revisions and clarifications to the rule published on Friday, May 26, 2000 to correct typographical errors.

15.  Export Administration Regulations Entity List:  Revisions to the Entity List (65 FR 45842 on July 26, 2000)

Commentary:  The Bureau of Export Administration has published a rule to remove two Indian entities:  The Nuclear Science Centre located in New Delhi and the Uranium Recovery Plant located in Cochin.  This rule also adds one Indian entity: Indian Space Research Organization (ISRO), Telemetry, Tracking and Command Network (ISTRAC) to the Entity List.

16. Reexports to Serbia of Foreign Registered Aircraft Subject to the Export Administration Regulations (65 FR 46091 on July 27, 2000)

Commentary:  The Bureau of Export Administration has amended the Export Administration Regulations (EAR) by reinstating provisions of License Exception AVS for temporary reexports to Serbia of foreign registered aircraft subject to the EAR.  This limited action in taken to support the European Union’s six-month suspension in support of Serbia’s democratic forces.  In support of this suspension, the United States has taken action that will allow, under License Exception AVS, the temporary reexport to Serbia of foreign registered aircraft subject to the EAR.  Foreign registered aircraft meeting all the temporary sojourn requirements of License Exception AVS may fly from foreign countries to Serbia without obtaining prior written authorization from BXA.  Note that License Exception AVS remains unavailable to U.S. registered aircraft.  

17.    Crime Control Items:  Revisions to the Commerce Control List (65 FR 55177 on September 13, 2000)

Commentary:  The Bureau of Export Administration has published a rule that amends the Commerce Control List (“CCL”) by removing saps and police helmets and shields from ECCN 0A982, placing saps in new ECCN 0A978 and police helmets and shields in new ECCN 0A979.  The rule also removes fingerprinting powders, dyes, and inks from ECCN 1A984 and places them in new ECCN 1A985, which improved the grouping of these items on the CCL.  This rule expands controls on restraint devices and on discharge type arms controlled under ECCNs 0A982 and 0A985, respectively, requiring a license for all destinations except Canada, and imposes controls on technology for the development or production of those items under new ECCN 0E982.  BXA is also revising §742.7 to reflect the changes to crime control items on the CCL, and is making conforming changes to part 746 (Embargoes and Special Controls).

18.   Revisions and Clarifications to the Commerce Control List; Chemical and Biological Weapons Controls; Australia Group (65 FR 58911 on October 3, 2000)

Commentary:  The Bureau of Export Administration has amended the Commerce Control List (CCL) of the Export Administration Regulations to implement an October 1999 Australia Group agreement to clarify the scope of controls on saxitoxin, toxic gas monitoring systems, and cross-flow filtration equipment, as well as clarifying the application of the rule for mixtures containing Australia Group (AG) chemicals that are also identified as Schedule 1 chemicals under the Chemical Weapons Convention.  This rule also amends the CCL to authorize, without a license, export of certain medical products containing botulinum toxin, and certain diagnostic and food testing kits that contain AG-controlled toxins.  Finally, this final rule amends the CCL to add titanium carbide and silicon carbide to the list of construction materials for heat exchangers. Restrictions on chemicals and toxins that are also controlled for CW (Chemical Weapons Convention) purposes continue to apply. This rule will result in an overall decreased licensing burden on U.S. industry.

19. Revisions to License Exception CTP (65 FR 60852 on October 13, 2000)

Commentary:  The Bureau of Export Administration has amended Export Administration Regulations (EAR) by revising License Exception CTP to reflect continuing technological advancement in the computer industry.  High Performance Computers (HPCs) with a composite theoretical performance (CTP) of up to 45,000 millions of theoretical operations per second (MTOPS) can be exported to Computer Tier 2 countries under License Exception CTP, and HPCs with a CTP up to 28,000 MTOPS can be exported to Computer Tier 3 destinations under License Exception CTP.  The civil-military distinction for Computer Tier 2 end-users and end-uses is removed.  Effective February 26, 2001, this rule also raises the advance notification level for HPC exports to Computer Tier 3 countries to 28,000 MTOPS. As required by the National Defense Authorization Act of 1998 (NDAA), changes in the advance notification level for HPC exports to Tier 3 destinations are only effective 180 days following the submission by the President of a report to Congress.  The President sent the report to Congress on August 30, 2000.  This rule moves Argentina from Computer Tier 2 to Computer Tier 1.  This rule also moves Estonia from Computer Tier 3 to Computer Tier 2, effective December 29, 2000.

20.  Revisions to Encryption Items (65 FR 62600 on October 19, 2000)

Commentary:  The Bureau of Export Administration has amended the Export Administration Regulations (EAR) to implement the July 17th White House announcement to streamline the export and reexport of encryption items to European Union (EU) member states, Australia, Czech Republic, Hungary, Japan, New Zealand, Norway, Poland and Switzerland under License Exception ENC.  The 30-day waiting period and the previous distinction between government and non-government end-users are removed by this rule for these destinations.  This rule makes further revisions and clarifications to the rule published on January 14, 2000 including changes in the treatment of products incorporating short-range wireless technologies (such as those based on the Bluetooth and Home Radio Frequency (HomeRF) specifications), open cryptographic interfaces, beta test software, encryption source code, and U.S. content (de minimis) requirements.  This rule also allows, for the first time, exporters to self-classify unilateral controlled encryption products (that fall under Export Control Classification Numbers (ECCNs) 5A992, 5D992 and 5E992) upon notification to the Bureau of Export Administration (BXA).  Restrictions on exports by U.S. persons to terrorist-supporting states (Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria), their nationals and other sanctioned entities are not changed by this rule.

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