FINAL RULES
PUBLISHED IN THE FEDERAL REGISTER DURING 1993
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. Exports to Afghanistan; Special Country Policies (58 FR 485 on January 6, 1993)
Commentary: When the Soviet Union invaded Afghanistan in June of 1980, validated license requirements for Afghanistan were made virtually identical to the Soviet Union, and applications for licenses were reviewed on the assumption that commodities and technical data sent to that country would be available to the Soviet Union. In light of the Soviet withdrawal from Afghanistan, the Export Administration Regulations have been amended so that Afghanistan will be treated henceforth as a free world country.
2. Western Red Cedar (58 FR 487 on January 6, 1993)
Commentary: The Bureau of Export Administration is amending the export administration regulations by adding a new General License GLOG, which authorizes exports of unprocessed western red cedar, and by revising the short supply provisions of the EAR to remove the individual validated licensing requirement for exports of unprocessed red cedar harvested from certain locations.
3. Shipper's Export Declaration (58 FR 3222 on January 8, 1993)
Commentary: BXA is amending the EAR to conform with changes in the Foreign Trade Statistics Regulations (15 CFR Part 30) eliminating the requirement for filing SEDs for most direct shipments to Canada and clarifying the scope of other exports which are exempt from the SED requirements.
4. Foreign Availability Assessment: Advanced High Speed Modems (58 FR 3531 on January 11, 1993)
Commentary: The Office of Foreign Availability has provided notice regarding the initiation of an assessment with respect to modems, which currently are controlled if they exceed a rate of 9,600 bits per second. (Effective late last year, COCOM granted AEN treatment for modems at the level of 14.4 which has not been published in the EAR heretofore.)
5. Administrative Exception and Favorable Consideration Treatment for Country Groups Q and Y; Revisions to the Commerce Control List (58 FR 3889 on January 29, 1993)
Commentary: This rule makes only editorial corrections.
6. Revisions to the Commerce Control List: Equipment Related to the Production of Biological Weapons (58 FR 21925 on April 26, 1993)
Commentary: The Bureau of Export Administration has modified the provisions of Export Control Classification Number 1B71E on the Commerce Control List of the Export Administration Regulations, so that the controls imposed by the U.S. on biotechnology related equipment and technology will conform to the controls imposed multilaterally by the other 24 members of the Australia Group. This includes, for example, controls on biohazard containment equipment, fermenters capable of cultivation of micro-organisms, centrifugal separators, filtration equipment and related items.
7. Exports to the Science-Based Industrial Park in Hsinchu, Taiwan: Establishment of Import Certificate/Delivery Verification (IC/DV) Procedure (58 FR 25553 on April 27, 1993)
Commentary: Taiwan has agreed to implement a limited Import Certificate/Delivery Verification procedure for the Science-Based Industrial Park in Hsinchu. This should not only speed up end-user verifications, as the notice itself suggests, but also is an interim step toward implementation of an IC/DV regime throughout the island, which demonstrates the Taiwan is making progress toward assuming full "5(k)" status and may soon be eligible to receive commodities under General License GCT. Note, however, that concerns remain regarding Taiwan's chemical/biological warfare program, and assumption of full 5(k) status cannot be assured.
8. Foreign Availability Determination and General License GFW Eligibility for Voice Band Modems Controlled by ECCN 5A02.c.1 With a "Data Signalling Rate" not Exceeding 19,200 Bits per Second (58 FR 27930 on May 12, 1993)
Commentary: The Department of Commerce's Office of Foreign Availability has concluded its study with respect to foreign availabilty of modems having a data signalling rate up to 19,200, and concluded that such modems are in fact available in sufficient quality and quantity that COCOM controls are ineffective. Thus, this interim rule makes such modems eligible for export under General License GFW and requires the U.S. to submit a proposal to COCOM to release such modems from the COCOM embargo. According to reports, the Department of Defense attempted to obtain a "national security override" which would have retained west-west controls on modems exceeding 9,600, but the evidence of foreign availability in at least four Pacific Rim countries was simply overwhelming.
9. Administrative Exceptions 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 (58 FR 32003 on June 7, 1993)
Commentary: This final rule is limited essentially to correcting typographical errors with respect to the text of ECCNs 6A02A and 6E01A contained in the final rule published in the Federal Register on December 24, 1992.
10. Conversion to the Metric System (58 FR 33509 on June 18, 1993)
Commentary: In compliance with the Omnibus Trade and Competitiveness Act of 1988, the Bureau of Export Administration is amending the Export Administration Regulations to convert units of measure to the metric system. It does not alter the scope of control for the affected products and technologies.
11. Revisions to the Commerce Control List; Navigation and Avionics (58 FR 34211 on June 24, 1993)
Commentary: Reflecting the completion of the United States Munitions List Rationalization Exercise, the Bureau of Export Administration has amended ECCNs 7A05, 7A25 and 7A94 on the Commerce Control List of the Export Administration Regulations to reflect the fact that Global Positioning Satellite receivers under the jurisdiction of the Department of Commerce now are controlled only for export to Cuba, Iran, Libya, North Korea, Syria, Vietnam, and military/police in South Africa.
12. Revisions to the Export Administration Regulations; Supporting Documentation (58 FR 36353 on July 7, 1993)
Commentary: The Department of Commerce has amended the Export Administration Regulations revising the validity period for end-user documentation submitted in support of export license applications. Henceforth, the initial export license application supported by Import and End-user Certificates must be submitted within six months after issuance, and all subsequent applications supported by the same certificate must be submitted within one year after submission of the initial application. Similarly, the initial export license application supported by a Statement by Ultimate Consignee and Purchaser (Form BXA-629P) must be submitted within six months after signature. However, subsequent applications may be submitted at any time within the validity period specified in the Form.
13. Foreign Availability Assessment; Oil Well Perforators (58 FR 40407 on July 28, 1993)
Commentary: The Office of Foreign Availability has initiated an assessment with respect to oil well perforators (explosives used to open up holes in the rock wall surrounding a drill shaft to allow oil to flow up and out of a well).
14. Foreign Availability Determination for "Digital Computers" Controlled by ECCN 4A03A Having a "Composite Theoretical Performance" Not Exceeding 67 Million Theoretical Operations Per Second (58 FR 46160 on September 1, 1993)
Commentary: The Bureau of Export Administration has found that digital computers having a Composite Theoretical Performance Not Exceeding 67 Million Theoretical Operations Per Second are available in fact. Therefore, the United States must negotiate removal of national security (east-west) controls on such computers at COCOM. Unfortunately, however, the United States did not remove any west-west controls, as a part of this determination.
15. Foreign Availability Assessment: Certain Telecommunications Transmission Equipment (58 FR 25553 on September 2, 1993)
Commentary: In response to a petition filed by AT&T, the Office of Foreign Availability has initiated an assessment with respect to foreign availability of certain telecommunications equipment. AT&T believes that the current rules, which embargo equipment that is 10 years old and 3 generations out-of-date, should be updated, based on availability of similar equipment in Israel and China.
16. Exports of Certain Petroleum and Petroleum Products Produced from the Naval Petroleum Reserves; Other Revisions and Clarifications to the Export Administration Regulations (58 FR 40749 on September 7, 1993)
Commentary: This final rule adds a validated license requirement for exports of chemical weapons precursors otherwise eligible for General License GIT; removes the affidavit requirement for exports from the Naval Petroleum Reserve; permits the export of crime control equipment to New Zealand; and permits reexports of software from Hong Kong and New Zealand to the PRC without a validated license, consistent with their "5(k)" status.
17. Revisions to the Export Administration Regulations; Clarifications (58 FR 47051 on September 7, 1993)
Commentary: This final rule implements clarifications to the regulations previously published.
18. Revisions to the Export Administration Regulations: New General License for Vietnam; Name Change to Reflect the Creation of the Czech Republic and the Slovak Republic (58 FR 47052 on September 7, 1993)
Commentary: This rule amends the Export Administration Regulations to permit exports under a new general license, GVN, for exports to Vietnam in support of activities previously licensed by the Treasury Department's Office of Foreign Assets Control. Thus, it does not create any new exemption from the overall licensing requirement. In addition, this rule reforms the EAR to reflect the division of the Czech and Slovak Republics which took effect on January 1, 1993, but does not provide more favorable treatment to one over the other.
19. Commercial Communications Satellites; Revisions to the Commerce Control List (58 FR 47322 on September 8, 1993)
Commentary: This rule amends the Commerce Control List by revising Export Control Classification Number 9A04 to include controls on components, parts and accessories associated with commercial communications satellites and passive remote sensing ground stations. Such items no longer are classified under Category XV of the United States Munitions List of the International Traffic in Arms Regulations. It is perhaps the "final fruits" of the USML Rationalization Exercise, begun under Executive Order 12735 of November 16, 1990.
20. Report of Disposition of Section 232 National Security Import Investigation of Ceramic Semiconductor Packages (58 FR 48033 on September 14, 1993)
Commentary: The Secretary of Commerce has determined that imports of ceramic semiconductor packages are not a present threat to the U.S. national security.
21. Removal of National Security-Based Validated License Requirements for Exports to Controlled Destinations of Certain Voice Band Modems with a "Data Signalling Rate" Not Exceeding 19,200 Bits Per Second (58 FR 48302 on September 15, 1993)
Commentary: In response to a previous foreign availability assessment, and in accordance with an agreement reached by COCOM, the U.S. has removed the validated license requirement for modems not exceeding 19,200 bits per second. Licenses continue to be required only for exports to Cuba, Libya, North Korea, Vietnam, Syria, Iran and military/police entities in South Africa.
22. Expansion of General License GFW Eligibility for "Digital Computers" Controlled by ECCN 4A03A; Revision of Nuclear Non-proliferation Controls in ECCNs 4A01A, 4A02A, and 4A03A; and Amendment of the Nuclear Nonproliferation Special Country List (58 FR 52166 on October 6, 1993)
Commentary: The Bureau of Export Administration has increased the threshold for eligibility of digital computers for export under General License GFW from 20 million theoretical operations per second ("MTOPS") to 194 MTOPS. It also raises the level at which nuclear non-proliferation controls apply to computers to 195 MTOPS, and removes a number of countries from Supplement 4 to Part 778 (i.e., those free world countries to which nuclear non-proliferation controls apply).
23. Special License Procedures; Revisions to Eligibility Requirements (58 FR 52168 on October 6, 1993)
Commentary: This final rule increases the threshold for computers that are eligible for export under the Distribution License, corresponding to the expansion of General License GFW described above.
24. Commerce Control List; Revisions to Categories 3, 4, 5, and 6 Based on COCOM Review, Expansion of Favorable Consideration Treatment for Country Group Q, and Expansion of General License Eligibility for Category 5 Telecommunications Transmission Equipment (58 FR 52169 on October 6, 1993)
Commentary: This final rule amends the COCOM controls on electronics, computers, telecommunications and sensors by adding some new advisory notes. Perhaps of greatest importance, virtually all telecommunications equipment (except information security equipment and software) now is eligible for export under General License GFW.
25. Request for Comments on Foreign Policy Controls (58 FR 54074 on October 20, 1993)
Commentary: The Bureau of Export Administration has asked for comments on all foreign policy controls, as it is required by law to review these provisions of the Export Administration Regulations each year. This is an important opportunity to file views with respect to objectionable unilateral controls and similar matters.
26. Timber Unprocessed from Arizona, etc. General Order Prohibiting Exports (58 FR 55038 on October 25 1993)
Commentary: The Administration has invoked the rarely used powers under the Short Supply controls to prohibit certain timber exports.
27. Transfer of Items from the United States Munitions List to the Commerce Control List and Imposition of Certain Foreign Policy Controls (58 FR 57549 on October 26, 1993)
Commentary: Reflecting further progress in the United States Munitions List Rationalization Exercise, the Department of State has transferred certain image intensifier tubes, infrared focal plane arrays, and navigation technology from the USML of the International Traffic in Arms Regulations to the Commerce Control List of the Export Administration Regulations. However, the Bureau of Export Administration has decided to implement foreign policy controls with respect to these items, so that a validated license will be required for export to all destinations (except Canada).
28. Revisions to Deciding Official on Appeals from Administrative Actions (58 FR 58483 on November 2, 1993)
Commentary: The Bureau of Export Administration has amended the Export Administration Regulations to provide that the Under Secretary for Export Administration is the official who reviews and decides appeals from administrative actions, and further makes clear that the Under Secretary has discretion to designate an appeals coordinator to assist the Under Secretary.
29. Commerce Control List; Revisions to ECCNs 1C31B, 9A02A, 9D24B, 9E03A and 9E21B and Addition of New ECCN 9A24B (58 FR 59163 on November 8, 1993)
Commentary: This final rule modifies several Export Control Classification Numbers on the Commerce Control List in order to conform to COCOM and Missile Technology Control Regime agreements governing exports of products and technologies related to missiles and communications satellites.
30. Foreign Availability Determination and General License GFW Eligibility for Certain Oil Well Perforators Controlled by ECCN 1C18A.o (58 FR 61806 on November 23, 1993)
Commentary: This final rule amends the Commerce Control List by removing national security controls on certain oil well perforators due to a finding that such items are available from sources outside of the COCOM regime.
31. "Digital Computers"; Removal of National Security-Based Validated License Requirements for "Digital Computers" with a CTP Not Exceeding 67 MTOPS; Expanded Administrative Exceptions and Favorable Consideration Treatment (58 FR 64674 on December 9, 1993)
Commentary: The Bureau of Export Administration has amended the Export Administration Regulations in accordance with the agreement earlier this fall by COCOM so that all computers having a CTP not exceeding 67 are released from embargo; computers having a CTP not exceeding 100 are granted administrative exception treatment; and computers having a CTP not exceeding 194 are granted favorable consideration treatment. It also clarifies the rules for General License GFW exports of computers.
32. Enforcement and Administrative Proceedings; Editorial Clarifications and Corrections (58 FR 65540 on December 15, 1993)
Commentary: This final rule makes minor changes to the provisions of the Export Administration Regulations governing enforcement proceedings.
33. Guidance; Validated License Requirements Based on Missile or Chemical and Biological Weapons End-uses; Activities of U.S. Persons (58 FR 68029 on December 23, 1993)
Commentary: Although not a "final rule", the Bureau of Export Administration has issued an important "guidance" with respect to the licensing requirements under the Enhanced Proliferation Control Initiative. The term "used in" a proliferation activity has been narrowly construed to refer only to exports "directly employed" in such activity, which should limit the number of export licenses applied for by U.S. exporters. We expect that several other troublesome areas of EPCI will be subjects of additional "guidance" in 1994.
34. Revisions to the Export Administration Regulations; Clarifications (58 FR 68740 on December 29, 1993)
Commentary: This final rule clarifies the scope of countries deemed to be "cooperating" with COCOM and those which are "proscribed" by COCOM, and revises the Project Licenses and Special Chemical License procedures.