FINAL RULES PUBLISHED
IN THE FEDERAL REGISTER DURING 2001
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. Implementation of Presidential Announcement of January 10, 2001: Revisions to License Exception CTP (66 FR 5443 on January 19, 2001)
Commentary: The Bureau of Export Administration (BXA) is amending the Export Administration Regulations (EAR) by revising License Exception CTP to reflect rapid technological advances in computing capability. This rule implements the President’s sixth revision to U.S. export controls on high performance computer (HPCs), announced January 10, 2001. License Exception CTP is revised by removing Computer Tier 2 and merging its countries into Computer Tier 1. All HPCs continue to be eligible for export to a Computer Tier 1 country under License Exception CTP. Additionally, HPCs with CTP up to 85,000 MTOPS can be exported to Computer Tier 3 countries under License Exception CTP, and beginning March 20, 2001, exporters will no longer be required to submit National Defense Authorization Act (NDAA) advance notifications for HPCs. Exporters will require a license for exports to Computer Tier 3 countries of HPCs with CTP exceeding 85,000 MTOPS. This rule also moves Lithuania from Computer Tier 3 to Computer Tier 1, effective May 19, 2001.
2. Implementation of Presidential Announcement of January 10, 2001: Revisions to License Exception CTP; Corrections (66 FR 6465 on January 22, 2001)
Commentary: The Bureau of Export Administration published a final rule revising License Exception CTP on January 19, 2001. This rule corrects inadvertent citation references in the January 19th rule.
3. Exports to the Federal Republic of Yugoslavia; Revision of Foreign Policy Controls (66 FR 12845 on March 1, 2001)
Commentary: The Bureau of Export Administration published a final rule revising the Export Administration Regulations (EAR) by removing the additional license requirements imposed on Serbia in May 1999. However, a license is required for all exports and reexports by U.S. persons of any item subject to the EAR to persons listed pursuant to Executive Order 13088, as amended by Executive Order 13192 of January 17, 2001. The persons subject to sanctions under amended Executive Order 13088 include Slobodan Milosevic, his family, his close associates, and those indicted for war crimes. These sanctioned persons are identified on the list of specially designated nationals and blocked persons maintained by the Department of the Treasury’s Office of Foreign Assets Control and identified by the bracketed suffix initials [FRYM].
This rule also eliminates the distinctions previously applicable to Serbia, Kosovo and Montenegro, which had been established by the final rule of November 5, 1999, for export control purposes. Under this rule, Serbia (including the province of Kosovo) and Montenegro will be listed together as the Federal Republic of Yugoslavia (Serbia and Montenegro) for License Exception eligibility purposes, as members of “Country Group B” (see Supplement No. 1 to part 740), “Computer Tier 3” (see §740.7), and in the “Commerce Country Chart” (see Supplement No. 1 part 738).
Note that the arms embargo mandated by United Nations Security Council Resolution 1160 of March 3, 1998 remains in effect. This embargo prohibits the sale or supply of arms and arms-related items to the Federal Republic of Yugoslavia (Serbia and Montenegro), including those controlled under the EAR for crime control and regional stability reasons.
4. Delivery Verification Procedure Request for Comments (66 FR 15073 on March 15, 2001)
Commentary: This is a notice of request for public comments on the requirement for U.S. importers of strategic commodities to furnish their supplier with a U.S. Delivery Verification Certificate validating that the commodities shipped to the U.S. were in fact received. Comments must be received by May 14, 2001.
5. Foreign Availability Procedures and Criteria Request for Comments (66 FR 15217 on March 16, 2001)
Commentary: This is a notice of request for public comments on the information collected in order to respond to requests by Congress and industry to make foreign availability determinations.
Comments must be received by May 15, 2001.
6. Written Assurances for Exports of Technical Data Under License Exception TSR Request for Comments (66 FR 15218 on March 16, 2001)
Commentary: This is a notice of request for public comments on the requirement that U.S. exporters receive letters of assurance from their foreign importers stating that they will not export or reexport technical data to destinations outlined in the E.A.R. unless they have received prior authorization from BXA. Comments must be received by May 15, 2001.
7. Procedure for Voluntary Self-Disclosure of Violations of the EAR Request for Comments (66 FR 15218 on March 16, 2001)
Commentary: This is a notice of request for public comments on the procedure for voluntary self-disclosure of violations. Comments must be received by May 15, 2001.
8. Addition of Brazil, Latvia, and Ukraine to the Nuclear Supplier Group (NSG) and Other Revisions (66 FR 18401 on April 9, 2001)
Commentary: The Bureau of Export Administration published a final rule which adds Brazil, Latvia, and Ukraine to Country Group A, Column A:4 (Nuclear Suppliers) and to the definition of “Nuclear Suppliers Group.” On February 12, 1997 (62 FR 6683), BXA published a regulation, which removed the license requirement symbol for Brazil and Ukraine from the Commerce Country Chart, NP Column 1 (Nuclear Nonproliferation). This rule removes the license requirement symbol for Latvia from the Commerce Country Chart, NP Column 1. The Nuclear Suppliers Group member countries have agreed to establish export-licensing procedures for the transfer of items identified on the Annex to the “Nuclear-Related Dual-Use Equipment, Materials, and Related Technology List,” which is published by the International Atomic Energy Agency.
In addition, this rule adds Austria, Finland, Ireland and Sweden to “Countries Not Subject to Certain Nuclear End-Use Restrictions in §744.2(1)”, because of their commitment to nuclear nonproliferation. This rule is effective on April 9, 2001.
9. Implementation of the Wassenaar Arrangement List of Dual-Use Items: Revisions to Microprocessors, Graphic Accelerators, and External Interconnects (66 FR 18402 on April 9, 2001)
Commentary: BXA has published a rule revising the Commerce Control List (CCL) to implement certain changes in Category 3 (Electronics) and Category 4 (Computers) of the Wassenaar List of Dual-Use Goods and Technologies, specifically in the areas of microprocessors, graphic accelerators, and external interconnects. This change is being implemented to reflect rapid technological advances and controllability factors.
Specifically, this rule increases the CTP parameter for microprocessors in 3A001.a.3.a from 3,500 MTOPS to 6,500 MTOPS. It also removes License Exception CIV eligibility for microprocessors, as the CIV limit has been surpassed by the new high control thresholds. BXA has determined that CIV eligibility above the new threshold is not warranted.
Additionally, this rule amends Category 4, 4A003 by removing the License Exception CIV eligibility for graphic accelerators, as the new high control threshold has surpassed the CIV limit and BXA has determined that CIV eligibility above the new threshold is not warranted. Paragraph (d) in the List of Items Controlled under 4A003 is revised to increase the national security (NS) control level for graphics accelerators and coprocessors from 3 M vectors/sec to 200 M vectors/sec; revised paragraph (g) in the List of Items Controlled to increase the NS control level for external interconnects from a data rate of 80 Mbyte/sec to 1.25 Gbyte/sec.; and finally, 4A994 is amended by adding Anti-Terrorism (AT) controls for external interconnects with data rates exceeding 80 Mbytes/s but less than 1.25 Gbyte/sec. These external interconnects have been removed from NS controls as a result of recent changes made by the Wassenaar Arrangement, but continue to remain controlled for AT reasons under this entry.
10. Entity List: Revisions and Additions (66 FR 24264 on May 14, 2001)
Commentary: The Bureau of Export Administration has published a rule that adds twelve entities located in the People’s Republic of China (PRC) to the Entity List; modifies three Russian entity listings and one Chinese entity listing; and makes one correction to an Israeli entity.
The rule states three levels of license requirements for the twelve PRC entities added to the Entity List.
1) A license will be required for the export or reexport of all items subject to the EAR having a classification other than EAR99 to the following two PRC entities: Baotou Guanghua Chemical Industrial Corporation and Xian Research Institute of Navigation Technology.
2) A license will be required for the export or reexport of all items subject to the EAR to the following five PRC entities: 13 Institute, China Academy of Launch Vehicle Technology, (CALT), aka 713 Institute or Beijing Institute of Control Devices, PRC; Beijing Power Machinery Institute, PRC; Beijing University of Aeronautics and Astronautics (BUAA), PRC, First Department, China Academy of Launch Vehicle Technology, (CALT), PRC; and Xiangdong Machinery Factory, PRC.
3) A license will be required for the export or reexport of all items subject to the EAR having a classification other than EAR99 or a classification where the third through fifth digits are “999” of the ECCN, e.g., XX999 to the following five PRC entities: 35 Institute, aka Beijing Huahang Radio Measurements Research Institute; 33 Institute, aka Beijing Institute of Automatic Control Equipment; Southwest Research Institute of Electronics Technology, Chengdu; Northwestern Polytechnical University; and 54th Research Institute of China, aka Communication, Telemetry and Telecontrol Research Institute (CTI).
License applications to export or reexport these items to all but one of the entities (the Baotou Guanghua Chemical Industrial Corporation, 202 Factory Baotou located in Inner Mongolia, PRC) will be reviewed based on the license review standards for missile end-uses found in Section 744.3 of the Export Administration Regulations (EAR). Therefore, applications will be considered on a case-by-base basis to determine whether the export would make a material contribution to the proliferation of missiles. When an export or reexport is deemed to make a material contribution, the license will be denied.
License applications to export or reexport all items subject to the EAR that have a classification other than EAR99 to Baotou Guanghua Chemical Industrial Corporation, 202 Factory Baotou, Inner Mongolia, PRC will be reviewed based on the license review criteria set out for nuclear end-uses found in Section 744.2 of the EAR.
Modifications to the Entity List include clarification of the location of the Russian entities “All-Russian Scientific Research Institute of Technical Physics”, “All-Union Scientific Research Institute of Experimental Physics”, and “Ministry for Atomic Power of Russia” by adding in parentheticals that “Sarov” is an alternate name for the city of Kremlev, i.e., Kremlev (Sarov). Also added is an alternate name that is used by the Chinese Academy of Engineering Physics, Southwest Institute of Nuclear Physics and Chemistry. This institute is also known as the China Academy of Eng[ineering] Physics [CAEP]’s 902 Institute located in Mianyang, PRC.
Finally, this rule corrects the inadvertently omitted Federal Register citation of the March 10, 2000 rule to the Federal Register Citation column of the Israeli entity “Ben Gurion University”.
11. Exports of Agricultural Commodities, Medicines and Medical Devices (66 FR 36676 on July 12, 2001)
Commentary: The Bureau of Export Administration has amended the Export Administration Regulations (EAR) to implement certain provisions of the Trade Sanctions Reform and Export Enhancement Act (TSRA) of 2000. The TSRA requires the President to terminate existing U.S. unilateral agricultural and medical sanctions and also provides that the export of agricultural commodities, medicines and medical devices to designated terrorist countries be made in accordance with the licensing regime described in that Act. The Department of Commerce is implementing TSRA as it relates to exports of agricultural commodities to Cuba. This rule establishes License Exception Agricultural Commodities (AGR) to permit exports and reexports to Cuba of agricultural commodities that are not specifically identified on the Commerce Control List (CCL) and are classified as EAR99.
12. Harmonization of Definitions of Terms (66 FR 36090 on July 16, 2001)
Commentary: The Bureau of Export Administration has published a rule which adds definitions to part 772 of the Export Administration Regulations (EAR) and in some cases revises or removes definitions to harmonize with definitions found in the list of terms that accompanied the Wassenaar Arrangement List of dual-use items and the European Union List, as of 1999. In addition, revisions are made to the Related Definitions paragraph in the List of Items Controlled Section of certain Export Control Classification Numbers (ECCNs) to harmonize with the revisions being made to part 772. Also, language is added to the introduction to part 772 to clarify that terms that only appear in a single ECCN will be defined in the Related Definitions paragraph in the List of Items Controlled Section of that ECCN, instead of part 772.
13. Revisions to the Export Administration Regulations; Country Group E:1; License Exception TMP (66 FR 42108 on August 10, 2001)
Commentary: The Bureau of Export Administration has published an interim final rule that amends the Export Administration Regulations (EAR) by revising Country Group E:1 to include all terrorist-supporting countries, and replacing references to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria with Country Group E:1 where appropriate. Therefore, the rule removes Angola, Bosnia and Herzegovina, and Rwanda from Country Group E:1, and adds Iran, Sudan and Syria. The rule does not change the license requirements for these countries or Angola, Serbia and Montenegro, or Rwanda set forth in part 742 and 746. This rule also makes conforming changes in §734.4—De minimis U.S. Content, §740.9—Temporary imports, export, and reexports (TMP), §740.10—Service and replacement of parts and equipment (RPL) by replacing references to those countries with the phrase “Country Group E:1.”
This rule also expands the scope of eligible countries for License Exception TMP for exhibition and demonstration to all countries except the new Country Group E:1, with certain restrictions. Under License Exception TMP, you may now export or reexport commodities and software for exhibition or demonstration to any country, including countries in Country Group D:1, except a country listed in Country Group E:1, subject to the terms and conditions of License Exception TMP and the restrictions that apply to all License Exceptions in §740.2 of the EAR.
Finally, the rule clarifies that a License Exception may be applicable to items for which a license would otherwise by required under General Prohibition one, two, three or eight.
14. Prior Notification of Exports Under License Exception AGR (66 FR 45960 on August 10, 2001)
Commentary: To meet the requirements of TSRA, the Bureau of Export Administration (BXA) is imposing a prior notification procedure under new License Exception Agricultural Commodities (AGR). Exports and certain reexport of agricultural commodities will be authorized under License Exception AGR to Cuba. BXA is requesting comments on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments must be submitted on or before October 30, 2001.
15. National Defense Authorization Act (66 FR 45961 on August 10, 2001)
Commentary: The Bureau of Export Administration (BXA) is requesting comments on the collection of information required as the result of the amending of the Export Administration Regulations (15 CFR parts 730-799) (EAR) by revising the (EAR) requirements for exports and reexports contained in Sections 1211-1215 of the National Defense Authorization Act (NDAA) for fiscal year 1998 (P.L. 105-85, 111 Stat. 1629), signed by the President on November 18, 1997. There is one component of this information collection authorization, a post-shipment report on the export of high performance computers, as well as the exports of items used to enhance previously exported or reexported computers, to Tier 3 countries, where the CTP is greater the 85,000 MTOPS for commodities shipped on or after March 20, 2001. (For commodities shipped prior to that date, lower reporting thresholds apply, per 15 CFR parts 740-.7 and 742.12). Exporters are required to provide a written report to BXA no later that the last day of the month following the month in which the export takes place. To simplify this process, BXA is developing an electronic form that will incorporate the relevant data elements and replace the written report, thereby standardizing the data format for the applicant, and enabling the use of information technology in the processing of the data.
16. Revisions and Clarifications to the Export Administration Regulations – Chemical and Biological Weapons Controls; Australia Group; Chemical Weapons Convention (66 FR 49520 on September 28, 2001)
Commentary: The Bureau of Export Administration (BXA) is amending the Export Administration Regulations (EAR) to implement the understandings reached at the October 2000 plenary meeting of the Australia Group (AG). This final rule amends the Commerce Control List and the corresponding export licensing provisions in the EAR to authorize exports, without a license, to State Parties to the Chemical Weapons Convention (CWC) of medical, analytical, diagnostic, and food testing kits containing small quantities of AG-controlled chemicals that are also identified on CWC Schedule 2 or 3, provided that they meet certain criteria. An export license for these kits is still required for anti-terrorism (AT) reasons or for other reason specified in the EAR (e.g. embargoes).
This rule also amends the CCL to implement a new AG policy on mixtures containing certain AG-controlled chemicals. Mixtures containing less than 30 percent by weight (previously 25 percent or less) of any single AG-controlled chemical generally may be exported, without a license, unless the controlled chemical is also (1) a CWC Schedule 1 chemical or (2) a CWC Schedule 2 chemical destined for a State not Party to the CWC. However, exports of these mixtures to certain destinations continue to require a license for AT reasons or for other reasons specified in the EAR (e.g. embargoes).
In addition, this final rule amends the CCL to clarify controls on certain graphite-lined chemical manufacturing equipment, to revise controls on centrifugal separators, and to establish a control of heat exchangers and condensers. Furthermore, this rule amends the EAR by adding Cyprus and Turkey to Country Group A:3, which identifies the countries that participate in the Australia Group, thereby eliminating license requirements for exports and reexports of certain AG-controlled items to these two countries.
This rule also amends the CWC-related provisions in the EAR to clarify the export license requirements and policies for certain toxic chemicals and precursors listed in the Schedules of Chemicals contained within the Annex on Chemicals to the CWC. Specifically, this rule revised certain CWC-related provisions in the EAR to clarify BXA’s export license requirements and policies in light of the CWC prohibition on retransfers of Schedule 1 chemicals to third countries and the CWC prohibition on exports of Schedule 2 chemicals to States not Party to the CWC that took effect on April 29, 2000. Finally this rule updates the list of countries that are currently States Parties to the CWC by adding the following countries: Azerbaijan, Colombia, Dominica, Eritrea, Gabon, Jamaica, Kazakhstan, Kiribati, Liechtenstein, Malaysia, Mozambique, Nicaragua, San Marino, the United Arab Emirates, Yemen, the Federal Republic of Yugoslavia (Serbia and Montenegro), and Zambia.
17. India and Pakistan: Lifting of Sanctions, Removal of Indian and Pakistani Entities, and Revision in License Review Policy; Final Rule (66 FR 50090 on October 1, 2001)
Commentary: The Bureau of Export Administration (BXA) published a rule that implements the waiver of sanctions announced on September 22, 2001, by President George W. Bush, by removing the policy of denial for exports and reexports of items controlled for Nuclear Proliferation (NP) and Missile Technology (MT) reasons to India and Pakistan and restoring the use of License Exceptions for these items for entities not listed on the Entity List. In addition, this rule removes the supplementary measures taken in connection with the sanctions by removing a large number of Indian and Pakistani entities from the Entity List. The license requirements and review policy for the entities that remain on the list are set forth on the list itself.
This rule removes section 742.16 of the Export Administration Regulations (EAR), which sets forth the policy of denial for exports and reexports of items controlled for Nuclear Proliferation (NP) and Missile Technology (MT) reasons to India and Pakistan. A license will continue to be required to India and Pakistan for these items, but the license review policy will revert to a case-by-case review, as set forth in sections 742.3 and 742.5 of the EAR for nuclear- and missile-controlled items, respectively. Also, exports of these items to India and Pakistan, other than exports to entities listed on the Entity List, are again eligible for the use of License Exceptions as provided in Part 740 of the EAR.
This rule also removes the supplementary measures, implemented in 1998, by removing sections 744.11, “Restrictions on certain government, parastatal, and private entities in Pakistan and India,” and 744.12, “Restrictions on certain military entities in Pakistan and India,” from the EAR.
The removal of entities form the Entity List eliminates the existing license requirements in Supplement No. 4 to Part 744 for exports to those entities. The removal of entities from the Entity List does not relieve exporters or reexporters of their obligations under part 744 of the EAR, which provides that a license is required even when one would not otherwise be necessary, if an exporter knows, has reason to know, or is otherwise informed by BXA that the item will be used in activities related to nuclear, chemical, or biological weapons, or missile delivery systems. BXA strongly urges the use of Supplement No. 3 to Part 732 of the EAR, “BXA’s ‘Know Your Customer’ Guidance and Red Flags” when exporting or reexporting to India and Pakistan.
18. Multi-Purpose Application – Notice and request for comments (66 FR 51373 on October 9, 2001)
Commentary: 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 an/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-013 (44 U.S.C. 3506(c)(2)(A)). Comments are invited on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall be practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments must be submitted on or before December 10, 2001.
19. Exports Controls of High Performance Computers – Notice and request for comments (66 FR 51373 on October 9, 2001)
Commentary: 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 an/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-013 (44 U.S.C. 3506(c)(2)(A)). Comments are invited on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall be practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments must be submitted on or before December 10, 2001.
20. Effects of Foreign Policy-Based Export Controls (66 FR 56260 on November 7, 2001)
Commentary: The Bureau of Export Administration (BXA) is reviewing the foreign policy-based export controls in the Export Administration Regulations to determine whether they should be modified, rescinded or extended. To help make these determinations, BXA is seeking comments on how existing foreign policy-based export controls have affected exporters and the general public. Comments must be received by November 30, 2001.
21. India and Pakistan Sanctions (66 FR 65176 on December 18, 2001)
Commentary: The Department of Commerce is requesting comments on: (a) Whether the proposed collection of information relating to India and Pakistan is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments must be submitted on or before February 19, 2002.
22. Removal of Licensing Exemption for Exports and Reexports of Missile Technology-Controlled Items Destined to Canada (66 FR 65666 on December 20, 2001)
Commentary: The Bureau of Export Administration (BXA) is reviewing the existing license exemption contained within the Export Administration Regulations (EAR) for the export of missile technology (MT)-controlled items to Canada, because of the recommendations contained in the Government Accounting Office Report entitled: “Export Controls: Regulatory Change Needed to Comply with Missile Technology Licensing Requirements” (GA-01-530). BXA is seeking comments on how removing the existing licensing exemption for MT-controlled exports to Canada would affect industry and more specifically the exporting community. Comments must be received by February 19, 2002.
23. Entity List: Removal of Two Russian Entities (66 FR 65836 on December 21, 2001)
Commentary: The Bureau of Export Administration (BXA) is removing two Russian entities from the Entity List: INOR Scientific Center, Moscow, Russia; and Polyus Scientific Production Association, 3 Ulitsa Vvedenskogo, 117342, Moscow. The Export Administration Regulations (EAR) provide that the Bureau of Export Administration (BXA) may inform exporters, individually or through amendment to the EAR, that a license is required for exports or reexports to certain entities. The EAR contains a list of such entities call the Entity List.