FINAL RULES
PUBLISHED IN THE FEDERAL REGISTER DURING 1992
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.
To search the Federal Register for the full text of the regulations, Click Here.
1. Exports to Territories Included Within the Geographic Area of the Former Soviet Union (57 FR 8 on January 2, 1992)
Commentary: This final rule reaffirms that the geographic area formerly known as the Soviet Union, including the Baltic republics of Estonia, Latvia and Lithuania, remain in Country Group Y for export control purposes, despite recent political developments.
2. Revisions to the Export Administration Regulations (57 FR 4553 on February 6, 1992)
Commentary: After months of inter-agency wrangling, the Bureau of Export Administration finally issued the so-called "mega-reg", which reconciles many of the grey areas and plain inconsistencies resulting from the publication of the Core List in August of 1991. In addition, a number of other changes are included in the mega-reg, such as the long-awaited comprehensive revision of General License GTDR, which makes the U.S. technical data regulations conform to the COCOM General Technology Note. Among the many other important changes introduced in the mega-reg are the following:
A. Revisions to the scope of commodities and technical data controlled under various Export Control Classification Numbers on the Commerce Control List;
B. Revisions to the Special Licensing Procedures requiring, inter alia, enhanced screening for possible diversion to missile technology and chemical/biological end-uses similar to existing nuclear screening, and revisions to Supplements 1 and 4 to Part 773;
C. Additional controls on the countries which support international terrorism (e.g., Iran, Iraq and Syria);
D. Reduction of controls on the Republic of South Africa;
E. A definition of "supercomputer" (defined as including all computers having a Composite Theoretical Performance equal to or exceeding 195 MTOPS);
F. Elimination of General License G-COCOM; and
G. Transfer of licensing jurisdiction over certain standard civil aircraft inertial navigation equipment from the Department of State to the Department of Commerce.
This important new regulation should be reviewed carefully, as nearly every exporter will be affected by the revisions to General License GTDR, at minimum, and many will be affected by other provisions, as well.
3. Exports to Cambodia and Laos; Country Group Y (57 FR 11576 on April 6, 1992)
Commentary: In response to the apparent settlement in Cambodia and the President's order of January 4, the Bureau of Export Administration has revised its licensing policy with respect to Cambodia. Formerly subject to a virtually complete embargo by virtue of inclusion in Country Group Z (along with Vietnam, North Korea and Cuba), Cambodia now is a member of Country Group Y (along with the territory formerly known as the Soviet Union and several other Eastern European countries, like Romania and Bulgaria). However, the rule also states that Cambodia and Laos will have a "separate licensing policy" from Russia and the other Country Group Y members. It remains to be determined, on a case-by-case basis, the precise scope of products and technologies that will in fact be exportable to Cambodia.
4. Revisions to the Distribution License Procedure (57 FR 18815 on May 1, 1992)
Commentary: In the first of three highly publicized liberalizations of the Export Administration Regulations first announced on April 23, the Bureau of Export Administration ("BXA") revised the Distribution License regulations to liberalize exports of computers. As before, Supercomputers may be exported to Canada and Japan without security conditions. In a pseudo-improvement, Supercomputers also may now be exported to Australia, Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain and the United Kingdom under the Distribution License, but the unpublished Distribution License Supercomputer Security Conditions faxed to all Distribution License holders by BXA on the same day prohibit intra-country transfers without written approval, so the net effect of this "liberalization" is modest, at best. For other COCOM and 5(k) countries, the limit is 195 Mtops; for free world Non-proliferation Treaty signers, the limit is 100 Mtops; for other free world countries, the limit is 41 Mtops, except for Argentina, Brazil, India, Israel, Pakistan, and South Africa, which remain at 12.5 Mtops.
5. Re-exports from COCOM/5(k) Countries (57 FR 18817 on May 1, 1992)
Commentary: Also on May 1, BXA liberalized the conditions under which reexports of U.S.-origin COCOM-controlled commodities and technical data might be permitted from COCOM/5(k) countries without U.S. government approval. Although promising on its face, as of this date the U.S. government had not informed any foreign governments of this new rule, and it seems that few of the 5(k) countries in particular have export licensing offices staffed to handle the new licensing burden that they are expected to assume, especially in countries with large numbers of U.S.-owned manufacturing facilities, like Ireland.
6. Revision of General License GCT (57 FR 18819 on May 1, 1992)
Commentary: The last of the three rules published on May 1 revised the list of commodities eligible for export under the provisions of General License GCT (authorizing exports to COCOM and 5(k) countries) to include all products and technologies except computers with a CTP in excess of 195 Mtops and cryptographic equipment; items on the International Atomic Energy List, International Munitions List, the Missile Technology Control Regime Annex, and certain products on the Nuclear Referral List. Thus, although some products are added to the eligible list, others are removed, and the net "liberalization" again is modest.
7. Exports to and Reexports from Hong Kong (57 FR 19334 on May 5, 1992)
Commentary: Hong Kong has been extended the licensing benefits accorded to the other 5(k) countries, including expedited licensing, eligibility for General License GCT, and permission to reexport commodities specified in advisory notes to the People's Republic of China and (former) East Bloc.
8. Exports to and Reexports from New Zealand (57 FR 19335 on May 5, 1992)
Commentary: Like Hong Kong, New Zealand has been accorded the benefits accruing to 5(k) countries. In addition, New Zealand has established an import certificate and delivery verification procedure, which Hong Kong and other 5(k) countries have used for some time.
9. COCOM Review of the International List (57 FR 19279 on May 5, 1992)
Commentary: BXA published a formal request for comments on the COCOM Segment A List Review, which will include Categories 3 (Electronics), 4 (Computers), 5 (Telecommunications) and 6 (Sensors).
10. Exports to Hungary (57 FR 19805 on May 8, 1992)
Commentary: In light of Hungary's agreement to implement an export control regime covering not only COCOM-controlled but also indigenously produced products and technologies, it has been moved from the list of proscribed destinations to the "free world" (Country Group V) and is eligible to receive products under General License GFW and the Distribution License. Note, however, that exporters will have to file amendments to their distribution licenses to export products to Hungary, and it seems likely that BXA is going to limit the list of products and technologies eligible for export to Hungary case-by-case as it approves such amendments.
11. Export Controls on Supercomputers (57 FR 20963 on May 18, 1992)
Commentary: This rule simply sets forth in a formal regulation most of the informal Supercomputer policies and procedures which have been implemented on a case-by-case basis by BXA for over one year. The onerous nature of the Supercomputer safeguards for all countries suggests that the only meaningful relief for exporters will occur when the definition of Supercomputer is reviewed and revised upward to take into account dramatic increases in computer performance since the conclusion of bilateral negotiations with the Japanese in May of 1991. Upward movement is essential in order to prevent the next generation of computer workstations from falling within the definition of Supercomputer, which currently is set at 195 Mtops.
12. Expansion of Foreign Policy Controls; Missile Technology Destinations (57 FR 26773 on June 16, 1992)
Commentary: The Bureau of Export Administration announced the list of destinations which require a validated export license when an exporter knows that the items will be used in the design, development or production of missiles. The countries are Brazil (Sonda III, Sonda IV, SS-300, SS-1000, MB/EE Series Missile, VLS Space Launch Vehicle) China (M Series Missiles, CSS-2) India [Agni, Prithvi, SLV-3 Satellite Launch Vehicle, Augmented Satellite Launch Vehicle (ASLV), Polar Satellite Launch Vehicle (PSLV) Geostationary Satellite Launch Vehicle (GSLV)] Iran (Surface-to-Surface Missile Project, Scud Development Project) Middle East (including Bahrain, Egypt, Iraq, Israel, Jordan, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, Syria, United Arab Emirates and Yemen) North Korea (No Dong I, Scud Development Project) Pakistan (Hatf Series Missiles) and South Africa (Surface-to-Surface Missile Project, Space Launch Vehicle). Conspicuously absent from the list is Russia, which recently was sanctioned by the State Department for participating in a missile development project with the Indian Space Research Organization. Unfortunately, the list does not identify specific end-users in these countries which are engaged in the listed missile programs, although several such entities have been publicly identified by the Department of State. Hence, it is prudent to screen transactions against both the Commerce and State Department lists, in order to ensure compliance.
13. Foreign Policy Controls on Items Related to the Design, Development, Production, or Use of Missiles; Batch Mixers (57 FR 26992 on June 17, 1992)
Commentary: This final rule affects several ECCNs on the Commerce Control List dealing with equipment and technical data controlled under the Missile Technology Control Regime, including 1B28B, 9A23B, 9B07A, 9B27B, 9D24B, and 9E21B. In addition to batch mixers, continuous mixers for solid propellants, liquid or slurrey propellant control systems and equipment designed for inspecting the integrity of rocket motors are affected.
14. Revision of General License GATS (57 FR 30899 on July 13, 1992)
Commentary: The Bureau of Export Administration announced revisions to General License GATS, which permits foreign-registered aircraft to land in the U.S., and U.S. aircraft to land in foreign countries. The net effect is to liberalize the criteria under which U.S. aircraft may transit Vietnam and Iran, among other countries, so long as control of the aircraft is not transferred.
15. Revisions to the Controls on Chemical and Biological Weapons(57 FR 31309 on July 15, 1992)
Commentary: This final rule amends Export Control Commodity Numbers 1B70E, 1C61C, 1E60C and 1E61B, which control dual-use items that can be used in the production of chemical and biological weapons. These changes are intended to conform (heretofore unilateral) U.S. export controls to be consistent with the (multilateral) export controls implemented by the various members of the Australia Group.
16. Humanitarian Shipments to Vietnam; General License G-NGO (57 FR 31658)
Commentary: This final rule establishes a new General License G-NGO, authorizing for the first time exports of goods to meet "basic human needs" (such as food, medicine, herbicides, etc.) without a validated license. In addition, a related change to the EAR sets forth a more liberal policy with respect to issuance of licenses authorizing commercial exports of such items to Vietnam. This is a part of the step-by-step policy of normalizing relations between the U.S. and Vietnam, following up on changes published by the Treasury Department in May.
17. Revisions to the Commerce Control List; Chemical Weapons Precursors (57 FR 36929 on August 17, 1992)
Commentary: The Bureau of Export Administration ("BXA") issued a notice regarding receipt of a petition to revise the current controls on chemical weapons precursors when exported as part of a mixture or compound. The business community has found the controls on mixtures containing precursors to be particularly disruptive of normal trade in chemicals which are used in many areas, such as semiconductor manufacturing, and BXA is actively soliciting industry comments.
18. Revisions to the Commerce Control List; Equipment Related to the Production of Biological Weapons (57 FR 41894 on September 14, 1992)
Commentary: The Bureau of Export Administration ("BXA") issued a proposed rule with request for comments revising the list of products and technologies that can be used in the production of biological weapons. This list was generated by the Australia Group and may take effect as early as the end of the year, subject to concurrence by the 22 member governments. Comment is invited regarding whether the final list still includes unnecessary controls on items that have legitimate commercial applications, e.g., in biotechnology research.
19. Revisions to the Export Administration Regulations; Clarifications (57 FR 41854 on September 14, 1992)
Commentary: This final rule makes several substantive changes to the Export Administration Regulations ("EAR") with respect to exports of technical data under General License GTDR, reexports of technical data and products manufactured abroad using U.S.-origin technical data, and exports of supercomputers, among other provisions. There is an important "rollback" in the use of General License GTDR with written assurances, which no longer authorizes exports of controlled software to Iran and Syria, even if such software qualifies as "mass market"! Use of General License GLV for exports to Iran and Syria also is further limited.
20. Increase in the Prohibition on Exports of Unprocessed Timber Harvested From Public Lands in Washington State (57 FR 43692 on September 22, 1992)
Commentary: This is a notice and request for comment on exports of timber from public lands, which certainly qualifies as one of the most obscure provisions of the EAR.
21. Special Chemical License Procedures; Revisions (57 FR 44969 on September 30, 1992)
Commentary: BXA has implemented revisions to the special chemical license procedures, which authorize "bulk" licensing of products controlled by the Australia Group because of their use in the manufacture of chemical or biological weapons.
22. Request for Comments on Effects of Foreign Policy-Based Export Controls (57 FR 46838 on October 13, 1992)
Commentary: The Bureau of Export Administration ("BXA") issued a request for comments on all foreign policy-based export controls.
23. Revisions to the Commerce Control List; Transfer of Communications Satellites from the U.S. Munitions List (57 FR 48312 on October 23, 1992)
Commentary: This interim rule amends the Commerce Control List to add a new Export Control Classification Number 9A04A, which governs certain commercial satellites that previously were covered on the U.S. Munitions List of the International Traffic in Arms Regulations. This represents perhaps the final fruits of the so-called "USML Rationalization Exercise", intended to make the USML conform to the corresponding provisions of the COCOM International Industrial List.
24. Timber Unprocessed from Washington State; Export Prohibition Increase (57 FR 49064 on October 29, 1992)
Commentary: This notice increases the prohibition on exports of unprocessed timber from Washington State to 100%, in order to expand employment in local sawmills.
25. Revisions to the Commerce Control List: Chemical Precursors, Microorganisms and Toxins (57 FR 60122 on December 18, 1992)
Commentary: The Bureau of Export Administration ("BXA") issued an interim rule adding certain chemical weapons precursors, as well as a number of microorganisms and toxins, to the list of items controlled by the U.S. and its Australia Group allies. It also removes controls on exports of such items to Sweden and Finland. Note also that there is a "savings clause" for orders received prior to January 4, 1993, where exports are effected prior to January 19, 1993.
26. Administrative Exception and Favorable Consideration Treatment for Country Group W; Telecommunications Equipment for Country Groups Q and Y; Revisions, Clarifications and Corrections to the Commerce Control List (57 FR 61259 on December 24, 1992)
Commentary: BXA published a massive (40 page) regulation which makes a number of long-awaited changes to the EAR, including (but not limited to) the following important items:
A. Publication of new advisory notes governing administrative exception and favorable consideration licensing treatment for exports to Czechoslovakia and Poland under every Category of the Commerce Control List;
B. The changes to the Telecommunications section of the Commerce Control List, agreed to last June at the COCOM High Level Meeting, which establish new parameters for administrative exception licensing to Russia and embargoed countries, as well as General License GFW eligibility;
C. New notes under the Computer section of the Commerce Control List governing exports to Czechoslovakia and Poland and re-establishing the so-called "China Green Line";
D. An important liberalization to the export controls on encryption software classified under ECCN 5D13, making more software eligible for export under General License GTDR, and expanding the list of eligible destinations; and
E. New requirements to disclose the ECCN under the Schedule B number on all Shipper's Export Declarations where the exporter claims eligibility for General License GCT or GFW.