FINAL RULES
PUBLISHED IN THE FEDERAL REGISTER DURING 1994
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. Foreign Availability Determination for Certain Telecommunications Transmission Equipment Controlled by ECCN 5A02A(a) (59 FR 1924 on January 13, 1994)
Commentary: In response to a petition filed by AT&T last fall, the Bureau of Export Administration's Office of Foreign Availability has determined that certain telecommunications transmission equipment operating according to the synchronous digital hierarchy at digital transfer rates up to 623 million bits per second are available in fact in countries controlled by COCOM. (AT&T had alleged that they were being produced in China and exported to controlled destinations by Israel.) However, rather than removing national security controls on such equipment, the Department of Commerce announced that it would "enter into negotiations with its allies so as to preserve our shared security interests with respect to this equipment." Presumably, these negotiations will conclude by March 31, when the transformation of COCOM is scheduled to be completed.
2. Exports to Vietnam; Country Group Y (59 FR 6524 on February 10, 1994)
Commentary: On February 3, 1994, President Clinton lifted the trade embargo against Vietnam. Accordingly, the Bureau of Export Administration has removed Vietnam from Country Group Z and placed it into Country Group Y (with the former Soviet Union, China and other countries subject to the COCOM embargo). It also eliminated General Licenses G-NGO and GVN, as no longer operative. Note also the amendment to the Foreign Assets Control Regulations affecting the Vietnam embargo published by the Treasury Department's Office of Foreign Assets Control in 59 FR 5696 on February 7, 1994.
3. Computers: General License Eligibility; Supercomputer Definition (59 FR 8848 on February 24, 1994)
Commentary: Of particular interest are the new licensing thresholds for computers and supercomputers under Export Control Classification Number 4A03A, which are as follows:
Canada and Japan: No limits
Supercomputer Definition: 1500 MTOPS
GCT: 1500 MTOPS
GFW (most free world countries): 1000 MTOPS
GFW (countries listed in Supp. 4 to Part 778): 500 MTOPS
Decontrol: 260 MTOPS
Iran and Syria: 6 MTOPS
Cuba, Libya, North Korea, S. African Military/Police: 0 MTOPS
This new rule also contains a revision to the formula for calculating the Composite Theoretical Performance of computers, which should provide a more or less level playing field for massively parallel computers vis-a-vis traditional vector and other mainframe computers. (It should not affect machines other than massively parallels.) Finally, it is important to note that this final rule does not include all of the amendments to Category 4 agreed to by COCOM on December 21, 1993.
4. Export Licensing: Shipper's Export Declaration Certification Requirements; Elimination for General License GLR (59 FR 9402 on February 28, 1994)
Commentary: The Bureau of Export Administration has eliminated the SED certification required for General License GLR.
5. Commerce Control List; Items Controlled for Nuclear Nonproliferation Reasons (59 FR 10958 on March 9, 1994)
Commentary: The Department of Commerce finally has amended the Commerce Control List to reflect the Annex to the "Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Materials and Related Technology" published by the International Atomic Energy Agency two years ago. It also has created a new General License (GNSG) and a new end-user certification requirement for products controlled for nuclear nonproliferation purposes. Note that this rule continues the unilateral nuclear nonproliferation controls on computers (e.g., computers over 500 MTOPS to Supplement 4 countries) and also includes a significant new individual validated license requirement for software and technical data specially designed or modified for supercomputers.
6. Revisions to the Export Administration Regulations: Equipment Related to the Production of Chemical Weapons and Warfare Agents; Microorganisms and Toxins; Revisions to the Australia Group Members (59 FR 12824 on March 18, 1994)
Commentary: This final rule adds new controls on chemical and biological warfare agents and related equipment under Export Control Classification Numbers 1B70 and 1C61, and reflects the fact that Argentina and Hungary have joined the Australia Group.
7. Exports to the Republic of Korea (South Korea): General License GCT, Permissive Reexports from the Republic of Korea to the People's Republic of China, Permissive Reexports from COCOM Participating and Fully Cooperating Countries, Permissive Reexports to COCOM Participating Countries, and Higher Level Computers Under the Distribution License Procedure (59 FR 13196 on March 21, 1994)
Commentary: As indicated by the title to this final rule, the Republic of Korea has been granted full "5(k)" status as a COCOM Cooperating Country, in light of the fact that it has implemented export controls similar to those which are implemented by COCOM member countries, on a national basis.
8. Revisions to the Export Administration Regulations; Transfers of Technology to Foreign Nationals in the United States (59 FR 13449 on March 22, 1994)
Commentary: This final rule clarifies two longstanding interpretations of the technical data regulations which provide that (1) release of technical data or source code to a foreign national within the U.S. is deemed to constitute an export to that person's country of nationality, and (2) some technical data which is not eligible for General License GTDA may require a validated license to some destinations.
9. Removal of National Security Based Validated License Requirements for Exports to Proscribed Destinations of Oil Well Perforators (59 FR 13879 on March 24, 1994)
Commentary: After finding foreign availability with respect to oil well perforators, the Department of Commerce has removed national security based validated licensing requirements.
10. Exports of Certain California Crude Oil (59 FR 13900 on March 24, 1994)
Commentary: The Department of Commerce has proposed lifting the ban on exports of certain California crude oil. If enacted with parallel changes to the regulations on Alaska crude oil, this would lower prices of gasoline and other oil products in California, which currently exceed the national average by about 10%.
11. Exports to South Africa; Revision of Foreign Policy Controls (59 FR 14360)
Commentary: This final rule relaxes the embargo on exports to South African military and police entities, in light of the political changes underway in that country. Certain technical data and software now are eligible for General License GTDU, and certain individual validated license applications previously subject to a policy of denial now will be considered on a case-by-case basis.
12. Establishment of New General License for Shipments to Country Groups QWY and the People's Republic of China (59 FR 115621 on April 4, 1994)
Commentary: As announced at the annual Bureau of Export Administration Update conference on March 30, 1994 the Department of Commerce has amended the Export Administration Regulations to authorize a new general license, GLX, permitting exports of products and technologies described in certain Advisory Notes and in the new Supplement No. 1 to Part 771 to civil end-users for civil end-uses in the countries previously proscribed by COCOM, like Russia and China. All products which are not eligible for General License GLX will require individual validated licenses. However, the U.S. will be authorized to issue licenses at its "national discretion", i.e., without referring the applications to the COCOM secretariat. This includes, inter alia, most telecommunications equipment (except for information security) classified under Category 5 on the Commerce Control List, and computers having a Composite Theoretical Performance less than or equal to 1000 million theoretical operations per second.
13. Initiation of National Security Investigation of Imports of Crude Oil and Petroleum Products (59 FR 17335 on April 12, 1994)
Commentary: The Bureau of Export Administration's Office of Industrial Resource Administration has initiated an investigation to determine the effects on national security of crude oil and petroleum product imports.
14. National Security (Proposed) Industrial Base Regulations: Offset Agreements in Sales of Weapons Systems or Defense Related Items to Foreign Countries or Foreign Firms; Reporting Requirements (59 FR 21678 April 26, 1994)
Commentary: The Bureau of Export Administration's Office of Industrial Resource Administration has issued a proposed rule which, if adopted as proposed, would require reporting of offset agreements entered into by U.S. persons in connection with foreign sales of defense articles and services.
15. Public Hearing on Section 232 National Security Investigation of Imports of Crude Oil and Petroleum Products (59 FR 24394 on May 11, 1994)
Commentary: The Bureau of Export Administration will hold a hearing regarding its investigation into imports of crude oil and petroleum products in New York, Dallas and Santa Clara in June.
16. Export Administration Regulations: Changes in Categories 3, 4 and 5 of the Commerce Control List; Revisions to Country Groups and Policies; Implementation of Import Certificate/ Delivery Verification (IC/DV) Procedures for Bulgaria and Romania; Adjustments to General License GLX (59 FR 25303 on May 16, 1994)
Commentary: Although COCOM formally terminated its existence as of March 31, 1994, in its closing months the member countries agreed to a number of changes to the provisions governing exports of Electronics, Computers and Telecommunications hardware and software. This rule also formalizes COCOM's decision to remove the Czech and Slovak Republics and Poland from the list of proscribed countries. They also have agreed to implement an Import Certificate/Delivery Verification procedure.
Romania and Bulgaria have been placed in an intermediate category, receiving preferential (but not free world) treatment. They also have implemented IC/DV procedures. In addition, BXA has announced that the various successor countries to the former Soviet Union now must be identified by name in export license applications and supporting documentation. Finally, belatedly recognizing that non-Serbs who attempt to obtain Yugoslav End-user Certificates in Belgrade risk loss of life, BXA has decided that a Form BXA-629P shall be substituted for the Yugoslav End-user Certificate for all applications to export products to Slovenia, Croatia, Bosnia and other parts of the former Yugoslavia not subject to embargo by the Treasury Department.
17. Export Administration Regulations: Changes in Categories 3, 4 and 5 of the Commerce Control List; Country Groups and Policy Revisions; Romanian and Bulgarian IC/DV; etc.; Correction (59 FR 27312 on May 26, 1994)
Commentary: This regulation includes a minor correction to the mega-reg summarized above.
18. Exports to Argentina: Establishment of Import Certificate/ Delivery Verification (IC/DV) Procedure, Shorter Processing Time Frames and General License GCG (59 FR 30682 on June 15, 1994)
Commentary: The Bureau of Export Administration has granted partial "5(k)" status to Argentina, including eligibility for General License GCG, and Argentina has agreed to implement an Import Certificate/Delivery Verification procedure. Note, however, that Argentina is not eligible for General License GCT, for example, nor for the permissive re-export provisions of Section 774.2(i).
19. Exports to South Africa; Removal of Foreign Policy Controls (59 FR 30684 on June 15, 1994)
Commentary: In light of the recent elections in South Africa and the passage of United Nations Security Council Resolution 919 lifting the arms embargo against South Africa, the Bureau of Export Administration has amended the Export Administration Regulations to eliminate the controls established to implement the arms embargo and the embargo of the South African military and police. For example, the use of Distribution License and Service Supply procedures have been extended, the written assurance provisions under General License GTDR have been eliminated, and the special South African Destination Control Statement has been eliminated. In addition, all special references to the South African military and police under various Export Control Classification Numbers on the Commerce Control List have been removed.
20. Exports to Rwanda; Imposition of Foreign Policy Controls (59 FR 40235 on August 8, 1994)
Commentary: The Bureau of Export Administration has imposed foreign policy controls on exports of munitions-related materials to Rwanda "reacting to the turmoil and slaughter of innocent civilians".
21. Cuba; General License Eligibility for Gift Parcels; Limitation to Food, Medicine and Strictly Humanitarian Items (59 FR 44887 on August 30, 1994)
Commentary: As a part of his attempt to stem the tide of Cuban boat people fleeing the Castro regime, President Clinton has amended provisions of the Export Administration Regulations authorizing exports of gifts to Cuba.
22. Observation Flights Over U.S. Territory Under the Treaty on Open Skies (59 FR 46389 on September 8, 1994)
Commentary: At the end of the Cold War, the United States signed the Open Skies Treaty, which permits members to conduct unarmed aerial observation flights over the territory of its participants. The Bureau of Export Administration is requesting comments from industry on how such observation flights might affect the industrial sector.
23. Transfer of the International Space Station from the USML to the CCL (ECCN 9A04A) (59 FR 47797 on September 19, 1994)
Commentary: The Bureau of Export Administration has accepted jurisdiction over the international space station and all components, parts, accessories, attachments and associated equipment specially designed therefore, which had been controlled under provisions of the International Traffic in Arms Regulations.
24. Foreign Policy Based Export Controls (59 FR 49611 on September 29, 1994)
Commentary: The Bureau of Export Administration has published its annual request for comments on the foreign policy based export controls in preparation for its report to the Congress in January.
25. Commerce Control List; Missile Technology Control Regime Equipment and Technology Annex (59 FR 49798 on September 30, 1994)
Commentary: The Bureau of Export Administration has revised the scope of various Export Control Classification Numbers on the Commerce Control List to reflect recent agreements by the parties to the Missile Technology Control Regime.
26. Exports to Taiwan: Expansion of Import Certificate/Delivery Verification (IC/DV) Procedure, Shorter Processing Time Frames and General License GCG; and Revisions of Romanian IC/DV Authority Address (59 FR 50156 on October 3, 1994)
Commentary: The Bureau of Export Administration has extended to Taiwan the export licensing benefits afforded to countries which demonstrate ability to control reexports of U.S.-origin products and technologies, in accordance with Section 5(k) of the Export Administration Act. It also has amended the Export Administration Regulations to specify the entity in Romania which issues Import Certificates.
27. National Defense Stockpile Market Impact Committee Request for Public Comments (59 FR 52284 on October 17, 1994)
Commentary: The newly invigorated Office of Strategic Industries and Economic Security is soliciting public comments on the market impact of proposed disposals of excess materials currently held in the National Defense Stockpile, from aluminum and analgesics to vegetable extract and zinc.
28. Revisions to the Export Administration Regulations: Exports of Sample Shipments and Mixtures Containing Precursor and Intermediate Chemicals; Revisions to Australia Group Members (59 FR 52685 on October 19, 1994)
Commentary: The Bureau of Export Administration has amended the Export Administration Regulations to implement changes to the chemical controls agreed to by the Australia Group in December of 1993 and May of 1994, and to add the Czech Republic and remove Turkey from the membership list.
29. Revisions to the Export Administration Regulations (59 FR 59135 on November 16, 1994)
Commentary: The Bureau of Export Administration has amended certain sections of the Export Administration Regulations to make certain editorial corrections and to insert some materials accidentally omitted.
30. Offsets in Military Exports (59 FR 61796 on December 2, 1994)
Commentary: The Bureau of Export Administration has amended the National Security Industrial Base Regulations (15 CFR Parts 700-709) to require U.S. firms entering into offset agreements in connection with the sale of defense articles and/or defense services to foreign governments or foreign companies to provide information regarding those agreements when they exceed $5,000,000 in value.
31. Notice: Chemical Weapons Convention; U.S. Industry Obligations Implementation (59 FR 66291 on December 23, 1994)
Commentary: The Bureau of Export Administration has issued a notice that it is developing regulations to implement the U.S. industry obligations under the Chemical Weapons Convention. Production, shipment, use and in some cases storage of chemicals at an estimated 6000 facilities in the U.S. will be affected. Industry comments are welcomed.
32. Nuclear Nonproliferation Special Country List; Revision to Supplement No. 4 to Part 778, and Certain Editorial Corrections and Clarifications (59 FR 67180 on December 29, 1994)
Commentary: The Bureau of Export Administration has revised the Nuclear Nonproliferation Special Country List in Supplement No. 4 to Part 778 by removing Afghanistan, Albania, Burma, Guyana, Mauritania, Mozambique, Niger, St. Kitts, Tanzania and Zimbabwe. It also has added Cuba, North Korea and the Federated States of Micronesia to Supplement No. 4. BXA has indicated further that Cuba, Iran, Libya and North Korea are not eligible for General License GFW, and that Iraq is subject to a total embargo under Treasury Department regulations. It also has indicated that, notwithstanding the fact that Moldova is listed in Supplement No. 4, it is eligible for exports under General License GLX. Several other sections of the EAR also have been clarified or corrected, as appropriate, including changes to Export Control Classification Number ("ECCN") 3A92F governing integrated circuits, several other ECCNs, and the advisory notes governing telecommunications exports.