FINAL
RULES PUBLISHED IN THE FEDERAL REGISTER DURING 1991
DEPARTMENT OF COMMERCE, BUREAU OF EXPORT ADMINISTRATION
EXPORT ADMINISTRATION REGULATIONS
(15 CFR Part 768 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. Removal of General Licenses G-COM and G-CEU (56 FR 1485 on January 15, 1991).
Commentary: General License G-COM has been rendered largely irrelevant by the expansions of General License GFW published in 1990. General License G-CEU never was relevant; not a single foreign company ever signed up to receive a so-called "Gold Card".
2. Reexports into COCOM Participating Countries; Elimination of Notification Requirement (56 FR 1486 on January 15, 1991)
Commentary: The Department of Commerce finally acknowledged that the reporting requirements associated with permissive reexports to and among the COCOM countries were ineffective and irrelevant. Their removal constitutes another useful step toward a true "license free zone" in COCOM.
3. Revisions to the Special Reporting Requirements for Exports and Reexports of Technical Data (56 FR 1487 on January 15, 1991)
Commentary: The rules governing recordkeeping and reporting with respect to exports effected pursuant to validated technical data licenses were revised to conform to the existing requirements with respect to exports of commodities under validated licenses.
4. Foreign Policy Controls on Chemical Weapons Precursors (56 FR 2676 on January 24, 1991)
Commentary: A harbinger of additional foreign policy controls on trade with Third World Countries expected in 1991, this rule placed a couple of additional chemical weapons precursors on the list of items that require a validated license for export to countries which are not participants in the Australia Group.
5. Procedural Changes in Validating Licenses and Duplicate Reexport Authorizations for Hong Kong (56 FR 3028 on January 28, 1991)
Commentary: To assist U.S. exporters utilizing Hong Kong as a transshipment point for exports to Asia, the Department of Commerce will issue duplicate license forms, one of which is to be retained by the U.S. exporter in accordance with the recordkeeping requirements of the EAR, and the other of which is to be supplied to satisfy the requirements of the Hong Kong Trade Department.
6. Decontrol of Certain Dynamic Random Access Memories ("DRAMs") (56 FR 5649 on February 12, 1991)
Commentary: Following a (rare) positive finding of foreign availability, the Bureau of Export Administration released from embargo most DRAMs having up to 256 Kbits per package. Only DRAMs having less than 256 Kbit which also have a maximum access time of less than 80 ns [for devices with an operating temperature range that is not below 253o K (-20o C) or above 348o K (+75o C)], or a maximum access time of less than 60 ns [for other devices] remain controlled under Export Control Commodity Number 1564A on the Commodity Control List of the Export Administration Regulations ("EAR").
7. Amendment of Procedures Established Pursuant to the Nuclear Non-Proliferation Act of 1978 (56 FR 6701 on February 19, 1991)
Commentary: Despite its title, this is a notice, not an amendment to the EAR. It sets time limits on the consideration of export licenses referred to the Sub-Group on Nuclear Export Coordination and establishes procedures for escalating and settling inter-agency disagreements. Every few years, a new protocol for the review of export licenses which raise nuclear non-proliferation concerns is issued; historically, these new pronouncements have been honored more often in the breach than in the observance.
8. Editorial Clarifications to the Export Administration Regulations (56 FR 8273 on February 28, 1991)
Commentary: Not a substantive change to the force and effect of the EAR, this final rule amends the antiboycott regulations, General License GUS, and the rules governing retention and return of validated licenses. It also includes changes which reflect the current organization of the Bureau of Export Administration and the Office of Defense Trade Controls.
9. Expansion of Foreign Policy Controls on Chemical Weapons Precursors (56 FR 10756 on March 13, 1991)
Commentary: This Interim Rule with Request for Comments expands the controls on 39 chemical weapons precursors classified under Export Control Commodity Number ("ECCN") 4798B. These chemicals formerly required licenses only for export to Country Groups S and Z, Iran, Iraq, Syria and South African military/police entities, but now require licenses to all destinations, except members of the so-called Australia Group.
10. Imposition of Foreign Policy Controls on Equipment and Technical Data Related to the Production of Chemical and Biological Weapons (56 FR 10760 on March 13, 1991)
Commentary: This Interim Rule with Request for Comments imposes controls on certain dual-use equipment and technology "useful" in the production of certain chemical and biological agents and precursors, through the addition of several new ECCNs on the Commodity Control List. The final list is far narrower than some of the earlier drafts. However, the "countries of concern" includes entire regions of the world, such as the "Middle East" (including Israel) and "Southwest Asia" as well as other countries, which may presage significant licensing delays.
11. Imposition and Expansion of Foreign Policy Controls (56 FR 10765 on March 13, 1991)
Commentary: The most controversial portions of the EPCI were released only in the form of a Proposed Rule with Request for Public Comment. For example, if this proposed rule is enacted, exporters who "know or are informed" that the ultimate consignee is engaged in proliferation related activity would have to obtain a validate license, even for goods otherwise eligible for export under a general license.
12. Decontrol of Certain Gallium Arsenide (56 FR 11651)
Commentary: Certain gallium arsenide was removed from ECCN 1757A, pursuant to a determination of foreign availability.
13. Section 5(k) Status Extended to Ireland (56 FR 13265 on April 1, 1991)
Commentary: This Final Rule extends to Ireland certain benefits under the provisions of Section 5(k) of the Export Administration Act. Ireland has implemented an export control regime which is similar to the regimes implemented by the COCOM member countries. Therefore, Ireland now is eligible to receive products under General Licenses G-COCOM and GCT. In addition, Irish reexports to and from the COCOM countries, Finland and Switzerland, and exports of "Green Zone" commodities from Ireland to the People's Republic of China, no longer require case-by-case authorization. Finally, all exports of computers (except Supercomputers) now are authorized under the Distribution licensing procedures.
14. Exports to Poland, Hungary and Czechoslovakia (56 FR 19015 on April 25, 1991)
Commentary: Many exporters have observed that the Bureau of Export Administration has been applying more liberal licensing policies with respect to exports to Poland, Hungary and Czechoslovakia in recent months. On April 25, this informal policy was reflected in a Final Rule. Effective immediately, most commodities subject to national security export controls require only four-week COCOM review, with a presumption of approval. However, an eight week COCOM review and presumption of denial will apply to applications for the export of certain semiconductor manufacturing equipment, composite materials and related equipment, aircraft and aero-engine equipment and facilities, telecommunications equipment, lasers and computers.
In addition, Poland, Hungary and Czechoslovakia have instituted an Import Certificate/Delivery Verification procedure, as a part of their enhanced export control regimes.
15. Revisions to the Commodity Control List: Vacuum Furnaces (56 FR 21074 on May 7, 1991)
Commentary: This Final Rule imposes validated license requirements on all exports of vacuum or controlled environmental furnaces, including arc, induction, plasma, or electron beam furnaces, capable of operation above 1,100o C. This change in the regulations is a direct result of the recent seizure of equipment destined for the Iraqi nuclear program. It presages more wide ranging controls on equipment with nuclear related applications, which are expected to result from (1) the ongoing internal U.S. government review of its nuclear non-proliferation controls, and (2) the COCOM review of the Nuclear Referral List scheduled to commence in September of this year.
16. Expansion of General License GCT (56 FR 21074 on May 21, 1991)
Commentary: Many exporters have found that General License GCT is extremely useful for exports to COCOM participating countries. Effective on May 21, 1991, this General License may also be used to export most commodities to Austria, Switzerland, Ireland and Finland, due to their status as so-called "5(k) countries (i.e., countries which are not formal members of COCOM but which implement parallel control regimes).
17. Exports of Crude Oil from the SPR (56 FR 23219 on May 21, 1991)
Commentary: This interim rule clarifies the regulations governing the issuance of licenses for the exportation of crude oil from the Strategic Petroleum Reserve.
18. Deletion of References to East and West Berlin (56 FR 25022 on June 3, 1991)
Commentary: Apparently convinced that German unification is for real, the Bureau of Export Administration has amended the Export Administration Regulations to delete all references to East and West Berlin.
19. Removal of National Security Controls on Prepreg Equipment (56 FR 25023 on June 3, 1991)
Commentary: In an interim rule with request for comments, BXA has eliminated all national security controls on prepreg production equipment controlled under provisions of Export Control Commodity Number 1357A, but retained identical licensing requirements on this equipment under the rubric of foreign policy controls, designed to limit the production of nuclear capable missiles!
20. Foreign Policy Controls on Missile Technologies (56 FR 24925 on June 27, 1991)
Commentary: This new final rule revises approximately twenty Export Control Commodity Numbers on the Commodity Control List, as well as the technical data controls in Supplement No. 4 to Part 779, in order to harmonize the U.S. controls with the controls of other countries which participate in the Missile Technology Control Regime ("MTCR"). These changes increase the scope of controls for certain ECCNs, while reducing controls under others. Note, however, that these changes only conform the U.S. regulations to the provisions of the existing MTCR Equipment and Technology Annex. The U.S. is negotiating in parallel with the other MTCR member countries to expand the scope of products and technologies controlled for foreign policy purposes under the Equipment and Technology Annex of the MTCR. Additional changes are expected to be published later this year.
21. Notice of Upcoming Changes in U.S. National Security Controls (56 FR 30798 on July 5, 1991)
Commentary: This Notice reflects the new structure of the Commodity Control List ("CCL") of the Export Administration Regulations ("EAR", 15 CFR Part 768 et seq. at 799.1, Supplement No. 1), which will become effective after implementation of the Core List on September 1, 1991. Generally, the substance of this Notice reflects the results of the May COCOM High Level Meeting, which we reported to you previously. However, like the advance draft documents which we made available to you, this Notice does not necessarily reflect the entire substance of the new CCL. In particular, products which will remain subject to nuclear nonproliferation, missile technology, chemical/biological warfare, and short supply controls are not included in this Notice. In summary, you should utilize the form, but not the substance, of this Notice for advance planning purposes.
22. Establishment of General License SAFEGUARDS (56 FR 34021 on July 25, 1991)
Commentary: The Bureau of Export Administration has established a new General License SAFEGUARDS, which authorizes exports of most commodities (except supercomputers) to the International Atomic Energy Agency ("IAEA") at its headquarters in Vienna or field offices in Toronto or Tokyo, as well as to the European Atomic Energy Community ("EURATOM") Safeguards Directorate in Luxembourg, for official international safeguards use. Reexports also are permitted for international safeguards use, provided that IAEA or EURATOM maintains control of or otherwise safeguards the commodities and returns them to the appropriate location specified above when they are obsolete, no longer required, or replaced. Note, however, that this new general license does not authorize exports of technical data or software.
23. Imposition and Expansion of Foreign Policy Controls (56 FR 40494 on August 15, 1991)
Commentary: BXA's Enhanced Proliferation Control Initiative has been implemented in an interim rule with request for comments which amends the EAR in the following important respects: (1) BXA now has explicit authority to deny export license applications based on proliferation concerns; (2) exporters now must apply for export licenses whenever they "know" that their products or technical data will be used in proliferation-related activities; (3) BXA also may inform the exporter at any time, either individually or by notice in the Federal Register, that an export license is required; (4) U.S. nationals and foreign branches are prohibited from participating in proliferation related activities; (5) contract sanctity is "maintained as a principle", but in fact is merely a "consideration" in the review of a license application.
24. Revisions to the Commodity Control List: Changes in Nuclear Nonproliferation Controls (56 FR 42652 on August 27, 1991)
Commentary: BXA has (1) established unilateral nuclear controls under twenty one new Export Control Commodity Numbers ("ECCN"); (2) imposed nuclear controls for the first time under two additional ECCNs; and (3) revised the scope of nonproliferation controls, and the countries for which such controls apply, under twenty nine other ECCNs. Most commodities subject to nuclear nonproliferation controls require a validated license to all destinations (except Canada). However, because of foreign availability, other commodities require validate licenses only for exports to Country Groups S and Z, the "target" countries listed in Supplement No. 4 to Part 778 (such as Argentina, Brazil, Israel, India and Pakistan) and Taiwan.
25. Revision of the Commodity Control List: COCOM Core List (56 FR 42824 on August 29, 1991)
Commentary: BXA finally published the long-awaited Core List, which was adopted by COCOM in May and becomes effective on September 1, 1991. These revisions to the Commodity Control List include not only multilateral national security controls, but also the full spectrum of unilateral foreign policy controls, in one comprehensive document. This promises to be a challenging fall, as exporters conform their export practices to the new control thresholds and nomenclature!
26. Removal of Foreign Policy Controls on Exports to Kama River and Zil Truck Plants in the Soviet Union (56 FR 49137 on September 27, 1991)
Commentary: This notice merely corrects an earlier revision to the technical data provisions of the Export Administration Regulations ("EAR"), in which several sections of the EAR governing use of General License GTDR were accidentally omitted.
27. (Proposed) Revisions to the Commerce Control List; Equipment Related to Production of Chemical/Biological Weapons (56 FR 49441 on September 30, 1991)
Commentary: This Proposed Rule would amend the Commerce Control List of the EAR by making the list of items which are controlled because they can be used in the production of chemical or biological weapons conform to those similar controls which are being considered for adoption by the other members of the Australia Group. The list is considerably narrower that earlier drafts circulated informally by the Department of Commerce, but it still controls some chemicals and equipment used in a variety of commercial applications, such as semiconductor manufacturing. Comments are due by October 30, 1991, and will be considered in the formulation of the U.S. position for the next round of Australia Group meetings, currently scheduled for December of 1991.
28. Exports to Sweden: General License GCT and Permissive Reexports to COCOM Countries (56 FR 51833 on October 16, 1991)
Commentary: In recognition of the fact that Sweden has improved its national export control regime and no longer is a preferred point of diversion for products to the Soviet Union and East Bloc, the Bureau of Export Administration has formally granted to Sweden privileges accorded to so-called "5(k) countries", i.e., exports to Sweden now may be effected under the provisions of General License GCT, and reexports from Sweden to COCOM countries are permitted without obtaining validated reexport authorizations.
29. Special Licensing Procedure for Chemicals and Chemical and Biological Equipment (56 FR 55068 on October 24, 1991)
Commentary: This Interim Rule with Request for Comments creates a new Special Chemical License for exports of chemicals and related equipment controlled under the provisions of the Enhanced Proliferation Control Initiative, to subsidiaries or other affiliates under the effective control of the U.S. exporter. Demand for this special license came from the chemical industry, and was strongly supported by the semiconductor manufacturing industry. Informed sources told us that Intel was having great difficulty obtaining export licenses for chemicals required by its manufacturing facility in Israel, for example. This new procedure should help. Foreign subsidiaries and affiliates in all countries except Libya, Cuba, Cambodia, North Korea, Vietnam, Iran, Iraq and Syria are eligible to receive exports under this new procedure.
30. Establishment of IC/DV Verification Procedure for Switzerland and Liechtenstein; Removal of Swiss Blue Import Certificate Requirement for Special and General Licenses (56 FR 64478 on December 10, 1991)
Commentary: Implementing revisions to Switzerland's export control law, this rule replaces the Swiss Blue Import Certificate requirement with an Import Certificate/Delivery Verification procedure. Effective December 10, neither a Swiss Blue nor an IC is required for exports/reexports to Switzerland under General License G-COCOM, the Distribution License or Service Supply License, or the permissive reexport provisions of the EAR.
31. Request for Comments on Effects of Foreign Policy Based Export Controls (56 FR 65202 on December 16, 1991)
Commentary: Last January, the President extended the foreign policy export controls under the EAR for one year. These include controls on nuclear and chemical/biological weapons and ballistic missiles. This Request for Comments solicits information from exporters regarding the effect these controls have had on their activities in 1991.
32. Establishment of IC/DV Verification Procedure for Switzerland and Liechtenstein; Removal of Swiss Blue Import Certificate Requirement for Special and General Licenses (56 FR 65930 on December 19, 1991)
Commentary: This notice just corrects a typographical error.
33. Commerce Control List; Listing of Entries in Numerical Order (56 FR 66558 on December 24, 1991)
Commentary: This interim rule does not change the scope of the Commerce Control List; rather, it attempts to make the sequencing of entries seem more logical. However, it may also make classification of products more difficult, as related commodities will not necessarily be contained in consecutive entries, but now can be dispersed in widely separated entries on the List.
34. Commerce Control List; Corrections (56 FR 67171 on December 30, 1991)
Commentary: This rule just corrects a typographical error.