FINAL RULES
PUBLISHED IN THE FEDERAL REGISTER DURING 1995
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. Establishment of New
General License G-BETA for Exports of Certain Beta Test Software
(60 FR 18731 on April 13, 1995)
2. Export Administration Regulations;
Simplification of the Export Administration Regulations
(60 FR on May 11, 1995)
3. Renumbering of Export
Control Classification Numbers (60 FR 25480)
4. Administration of State
Log Exports Ban (60 FR 30030 on June 7, 1995)
5. Summary of Secretarial Report
Under Section 232 of the Trade Expansion Act of 1962, as Amended
(60 FR 30514 on June 9, 1995)
6. General Technology and Software
Notes (60 FR 36638 on July 8, 1995)
7. Vaccines Containing Australia
Group Controlled Microorganisms or Toxins (60 FR
38956 on July 31, 1995)
8. Request for Comments on Foreign
Policy-Based Export Controls (60 FR 50507 on
September 29, 1995)
9. Correcting Amendments; General
Software Note, Commerce Control List Interpretations 24, 25, and
26 (60 FR 53698 on October 17, 1995)
10. Revisions to the Export
Administration Regulations: Exports of Sample Shipments
Containing Precursor and Intermediate Chemicals; Revisions to
Australia Group Members; Aqueos Hydroflouric Acid; and
Clarifications (60 FR 54030 on October 19, 1995
11. National Defense Stockpile
Market Impact Committee Request for Public Comments
(60 FR 56139 on November 7, 1995)
12. Foreign Policy Controls:
Specially Designed Implements of Torture (60 FR 58512
on November 28, 1995)
13. Public
Hearings on the Effects of Lifting the Export Ban on Alaskan
North Slope Crude Oil (60 FR 64412 on December 15,
1995)
14. Expansion of General
License GLX and GTDR (60 FR 65526 on December 20,
1995)
1. Establishment of New General License G-BETA for Exports of Certain Beta Test Software (60 FR 18731 on April 13, 1995)
Commentary: The Department of Commerce’s Bureau of Export Administration has issued an interim rule whereby pre-release software programs (including programs incorporating encryption) are eligible for export under general license G-BETA to all destinations (except to Cuba, Libya, Iran, Iraq, North Korea, Sudan and Syria) provided that they are (a) intended to be sold through "mass market" channels at the completion of testing, (b) provided free-of-charge or at a price that does not exceed the cost of reproduction and distribution, and (c) designed for user-installation. The exporter first must obtain a statement from the consignee certifying that the program will not be reexported and will be returned or destroyed at the completion of beta testing. However, this should greatly reduce the burden on exporters of beta release mass market software incorporating encryption, which otherwise required an individual validated license.
This new general license was developed in response to a proposal submitted by Novell (and on behalf of Microsoft, Lotus and AT&T) to the Telecommunications, Computer Systems and Regulations & Procedures Technical Advisory Committees last November. It also was supported by the American Electronics Association and other trade groups, and received a high priority at BXA. (Indeed, this is the only rule that BXA has published to date in 1995!) It demonstrates that BXA is serious about ameliorating the adverse consequences of export controls on encryption, where no legitimate national security or foreign policy purpose is served. Although BXA is not currently known to be considering any additional proposals at this time, senior agency officials have expressed their willingness to consider other reasonable proposals similar to the Novell proposal which resulted in the establishment of General License G-BETA.
2. Export Administration Regulations; Simplification of the Export Administration Regulations (60 FR on May 11, 1995)
Commentary: The Bureau of Export Administration ("BXA") has published a Notice of Proposed Rulemaking with Request for Comments which would comprehensively revise and reorganize the Export Administration Regulations ("EAR"), the regulatory regime through which BXA imposes export and reexport controls on those items within its jurisdiction. In accordance with promises made in September of 1993 to the Congress in the Report of the Trade Promotion Coordinating Committee, this proposed revision of the EAR "simplify, clarify, and make the regulations more user-friendly". The salient points are as follows:
· No license or other authorization would be required for any transaction under BXA jurisdiction unless the regulations affirmatively state the requirement. (Current regulations state that all exports are prohibited unless an applicable general license has been established or a validated license or other authorization has been granted by BXA.)
· The terms "general" license and "validated" license would be dropped. The term "license" would be used to refer only to authorization issued by BXA upon application. The proposed regulations would convert the many current general licenses into a smaller number of "exceptions", set forth in the proposed regulations, to the obligation to seek a license when the control list indicates that the particular item going to the stated country generally requires a license.
· The chapters of the regulations would be arranged to give the exporter and reexporter a logical path to follow.
· The affirmative statements of the need to obtain a license, currently scattered throughout the regulations, would be consolidated into ten general prohibitions. One chapter would contain the license review policy for all list-based license requirements; another would provide for the requirements and review policies of licenses based on the end-use or end-user involved in a proposed export or reexport; and the list based license requirements are contained in the Commerce Control List ("CCL") indicating the reason for control and the Country Chart indicating the country scope of each reason for control.
· The Country Groups used in the current regulations would be revised in favor of Groups which better reflect post-Cold War circumstances.
· The CCL would be redesigned to state the reasons for control more specifically within each Export Control Classification Number ("ECCN").
· The redesigned CCL would be issued in tandem with a new Country Chart that would indicate whether a license is required for any ECCN to any country in the world and the reason or reasons for control.
3. Renumbering of Export Control Classification Numbers (60 FR 25480)
Commentary: The Bureau of Export Administration has issued an Advanced Notice of Proposed Rulemaking indicating that it is considering renumbering the Export Control Classification Numbers ("ECCNs") found in the Commerce Control List of the Export Administration Regulations. These revisions would result in five digit ECCNs that conform to the numbering system used by the European Union. It is not expected to result in any changes to validated license requirements.
4. Administration of State Log Exports Ban (60 FR 30030 on June 7, 1995)
Commentary: This notice announces the Department of Commerce’s intention to issue regulations implementing the ban on the export of unprocessed timber originating from non-Federal public lands in 17 western states pursuant to the Forest Resources Conservation and Shortage Relief Act of 1990, as amended, and solicits public comments on this subject.
5. Summary of Secretarial Report Under Section 232 of the Trade Expansion Act of 1962, as Amended (60 FR 30514 on June 9, 1995)
Commentary: In response to a petition submitted by the Independent Petroleum Association of America, the Department of Commerce conducted a study on the question of whether imports of petroleum products threaten the national security. The Commerce Department found that oil imports do threaten to impair the national security, but decided to take no action because, on balance, the costs to the economy of an import adjustment outweigh the benefits.
6. General Technology and Software Notes (60 FR 36638 on July 8, 1995)
Commentary: This final rule merely corrects a previous error, reinstating the General Technology and Software Notes of the Export Administration Regulations, without either expanding or reducing their scope of coverage.
7. Vaccines Containing Australia Group Controlled Microorganisms or Toxins (60 FR 38956 on July 31, 1995)
Commentary: The Department of Commerce has revised the export licensing requirements governing vaccines containing microorganisms or toxins controlled by the Australia Group.
8. Request for Comments on Foreign Policy-Based Export Controls (60 FR 50507 on September 29, 1995)
Commentary: The Bureau of Export Administration has published its annual request for comments on the foreign policy based export controls implemented under Section 6 of the Export Administration Act. This presents a useful opportunity for exporters to register their objection to the unilateral export controls set forth in the Export Administration Regulations.
9. Correcting Amendments; General Software Note, Commerce Control List Interpretations 24, 25, and 26 (60 FR 53698 on October 17, 1995)
Commentary: The Bureau of Export Administration has published two technical corrections to the Export Administration Regulations. The first adds language to the General Software Note indicating that General License GTDU is not available for exports of mass market software to Country Groups S and Z, Iran or Syria. The second change eliminates Interpretations 24, 25 and 26 from the EAR.
10. Revisions to the Export Administration Regulations: Exports of Sample Shipments Containing Precursor and Intermediate Chemicals; Revisions to Australia Group Members; Aqueos Hydroflouric Acid; and Clarifications (60 FR 54030 on October 19, 1995
Commentary: The Bureau of Export Administration has made several changes to the export controls on chemical weapons and precursors based on changes negotiated at a recent meeting of the Australia Group. Aqueous hydroflouric acid has been added to the list of controlled products. Poland, Romania and the Slovak Republics have been added to the list of Australia Group member countries. The rule creates a new Export Control Classification Number 1C95F for mixtures containing a de minimis amount of an AG-controlled chemical. Finally, the rule incorporates a new definition of "solvent" and includes examples of mixtures containing AG-controlled chemicals.
11. National Defense Stockpile Market Impact Committee Request for Public Comments (60 FR 56139 on November 7, 1995)
Commentary: The Bureau of Export Administration’s Office of Strategic Industries and Economic Security has requested comments on the potential market impact of proposed disposals of excess commodities from the National Defense Stockpile.
12. Foreign Policy Controls: Specially Designed Implements of Torture (60 FR 58512 on November 28, 1995)
Commentary: The Bureau of Export Administration has amended the Export Administration Regulations in order to re-classify specially designed implements of torture (like thumbscrews) under a new Export Control Classification Number 0A82C, and to further indicate that a validated license now is required for the export of such equipment to all countries, including Canada.
13. Public Hearings on the Effects of Lifting the Export Ban on Alaskan North Slope Crude Oil (60 FR 64412 on December 15, 1995)
Commentary: The Bureau of Export Administration has announced a series of public hearings on whether to lift the ban on exports of Alaskan North Slope Crude Oil. Alaska’s congressional delegation has favored lifting the ban for many years, so that companies producing oil in Alaska could export that oil to markets in Asia. However, lifting the ban would cause producers of crude oil in California to cease production and prices for gasoline and other refined products on the West Coast to rise, so the Clinton Administration (which, incidentally, desperately needs California’s electoral votes in the 1996 election) is expected to oppose lifting the ban.
14. Expansion of General License GLX and GTDR (60 FR 65526 on December 20, 1995)
Commentary: The Bureau of Export Administration has amended the Export Administration Regulations in order to expand General License GLX eligibility to include (1) portable (personal) or mobile radiotelephones not capable of end-to-end encryption, like cordless telephone handsets implementing DECT and cellular phone handsets implementing GSM; (2) microprocessors with a composite theoretical performance not exceeding 500 million theoretical operations per second; (3) memory integrated circuits; (4) certain digital integrated circuits; (4) field programmable gate arrays and logic arrays; and (5) anti-virus computer software.