The Export Administration Regulations; Editorial Revisions, Clarifications, and Corrections
| Published date | 05 October 2021 |
| Citation | 86 FR 54807 |
| Record Number | 2021-20649 |
| Section | Rules and Regulations |
| Court | Industry And Security Bureau |
Federal Register, Volume 86 Issue 190 (Tuesday, October 5, 2021)
[Federal Register Volume 86, Number 190 (Tuesday, October 5, 2021)]
[Rules and Regulations]
[Pages 54807-54814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20649]
[[Page 54807]]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 732, 734, 736, 738, 740, 744, 748, 750, 770, 772, and
774
[Docket No. 210802-0157]
RIN 0694-AI24
The Export Administration Regulations; Editorial Revisions,
Clarifications, and Corrections
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule; corrections.
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SUMMARY: In this rule, the Bureau of Industry and Security (BIS) amends
the Export Administration Regulations (EAR) by making targeted
editorial corrections and clarifications. The errors addressed by this
rule were inadvertent and these corrections will provide clarity and
facilitate understanding of the regulations. This rule ensures that the
language and policies already set forth in the EAR remain consistent
throughout.
DATES: This rule is effective October 5, 2021.
FOR FURTHER INFORMATION CONTACT: Logan Norton, Regulatory Policy
Division, [email protected], (202) 812-1762.
SUPPLEMENTARY INFORMATION:
Background
This final rule updates eleven parts of the Export Administration
Regulations (EAR), parts 732, 734, 736, 738, 740, 744, 748, 750, 770,
772, and 774, such that most-recent language elsewhere in the EAR is
consistent with the language in these parts. These changes are minor
editorial revisions that either reflect Bureau of Industry and Security
(BIS) policies that were previously published in the Federal Register
and added to the EAR or reflect the modernization of procedures
implemented by BIS. These revisions do not change the substance of the
EAR.
Part 732 Steps for Using the EAR
In 2004, supplement no. 2 to part 732, the ``Subject to the EAR?''
flowchart, was revised to make it simpler and easier to read. However,
the language of the supplement is not consistent with the language in
other parts of the EAR, including language implemented before and after
the 2004 amendment. In 1999, paragraphs (a) and (b) of Sec. 734.5 were
amended to better represent U.S. policy objectives but the 2004 update
to supplement no. 2 did not capture these changes. Further, in 2009,
paragraph (c) of Sec. 734.5 was dropped from the EAR and in 2016,
``transfer (in-country)'' was added to the EAR in Sec. 734.16.
Elsewhere in this rule, Sec. 734.3(a)(4) and (5) are being amended to
align with Sec. 736.2(b)(3) of the EAR; the changes to these sections
also impact the flowchart in supplement no. 2 to part 732. This rule
changes the ``Subject to the EAR?'' flowchart in supplement no. 2 of
part 732 to reflect these changes. For example, the first text bubble
of the supplement no longer mentions Sec. 734.5(c) and the final text
bubble simply refers readers to Sec. 736.2(b)(3), rather than to any
specific destinations.
Part 734 Scope of the Export Administration Regulations
Parts 734 and 736 were added to the EAR in 1996. Section 736.2 has
been revised several times since then, updating the language regarding
what constitutes a ``foreign-produced direct product.'' The most recent
update to part 736 was in August of 2020. This rule amends Sec.
734.3(a)(4) and (5) to reflect the terms currently used in Sec.
736.2(b)(3) of the EAR. The definition for the term ``direct product''
is removed from Sec. 734.3(a)(4), because it is being added to part
772, as detailed below.
Part 736
On January 15, 2021, BIS published an interim final rule (86 FR
4865) that inadvertently removed paragraphs (B) and (C) from Sec.
736.2(b)(7)(i). Paragraphs (B) and (C) are added back by this rule.
Those paragraphs dictate which schedules of chemicals listed in
supplement no. 1 to part 745 a ``U.S. person'' may not export without
complying with specific provisions and requirements of the EAR. In
addition, as the January 15 interim final rule removed the definition
of ``U.S. person'' from Sec. 744.6(c) of the EAR (while leaving the
identical definition in Sec. 772.1 of the EAR), BIS is making
conforming changes to Sec. 736.2(b)(7)(i)(B) and (C). Specifically,
BIS is revising both paragraphs to reference Sec. 772.1, instead of
Sec. 744.6(c), for the definition of the term ``U.S. person.''
Quotation marks are also added around the term ``U.S. person'' in both
paragraphs, given it is a defined term in part 772. Quotation marks are
also added around the term ``direct product'' in Sec. 736.2(b) for the
same reason and as detailed below.
Part 738 Commerce Control List Overview and the Country Chart
In June of 2020, License Exception Civil End Users (CIV) was
removed from the EAR. After the removal, a sample Commerce Control List
entry set forth in Sec. 738.4(b)(2) of the EAR unintentionally
retained a reference to License Exception CIV. This rule rectifies this
by removing the CIV reference from Sec. 738.4(b)(2) while retaining
the remainder of the sample entry.
Part 740 License Exceptions
On December 28, 2020, BIS published a final rule (85 FR 84211)
adding Cyprus and Mexico to Country Group A:6. As there were issues
with the amendatory instruction to that rule, this rule corrects the
amendatory instruction and adds an ``X'' in Column ``[A:6]'' in
Supplement No. 1 to Part 740 for ``Cyprus'' and ``Mexico.''
Part 744 Control Policy: End-User and End-Use Based
In April of 2020, BIS published a rule regarding military end users
(85 FR 23459). In supplement no. 2 to part 744 of the EAR, paragraph
(3)(viii) inadvertently reprinted out-of-date text from Export Control
Classification Number (ECCN) 3A992 when referring to ECCN 3E991
technology for those 3A992 items. This rule updates the paragraph to
reflect the current text in that ECCN. This edit does not change the
scope of the license requirement for items controlled under the ECCN.
Quotation marks are also added around the term ``direct product'' in
supplement no. 4 to part 744, because the term is being added to part
772 by this rule, as detailed below.
Part 748 Applications (Classification, Advisory, and License) and
Documentation
As has been the case for some time, the public may submit advisory
opinion requests to BIS in a variety of ways in addition to through the
mail (e.g., the U.S. Postal Service or via a shipping and logistics
delivery service). This rule revises Sec. 748.3(c) of the EAR to
include how to submit advisory opinion requests via email or through
the BIS website.
Supplement no. 2 to part 748, ``Unique Application and Submission
Requirements,'' is being clarified to reflect BIS policy regarding the
letters of assurance described in paragraph (o)(3)(i), which are
applicable to license applications submitted for the export of
technology controlled for national security reasons to certain
countries. Specifically, this clarification reflects BIS policy that
license applicants must always obtain letters of assurance, which must
be submitted to BIS upon request. Quotation marks are also added around
the term ``direct product'' in supplement no. 2, because the term is
being added to part 772 by this rule, as
[[Page 54808]]
detailed below. This rule also adds in that this applies to exports,
reexports, and transfers (in-country), which is currently BIS policy
regarding this paragraph.
This rule amends paragraph (b)(6) ``Block 6: Ultimate Consignee,''
of supplement no. 3 to part 748, ``Statement by Ultimate Consignee and
Purchaser Content Requirements.'' Prior to publication of this rule,
paragraph (b)(6) indicated that an ink signature is required on the
BIS-711 ``Statement by Ultimate Consignee and Purchaser'' form.
However, following public comments, in a March 2015 final rule, BIS
confirmed that electronic signatures are permissible. This rule revises
paragraph (b)(6) to more accurately reflect existing text found in
Sec. 748.11 of the EAR.
Part 750 Application Processing, Issuance and/or Denial
Sections 750.1, 750.8, and 750.9 are being updated to reflect BIS's
use of the Simplified Network Application Process--Redesign (SNAP-R)
system by eliminating or rewording parts of the sections that are no
longer relevant given the online nature of the system. The SNAP-R
system has been in place since October of 2006 and has largely replaced
the previous system that involved the submission of paper license
applications, but the EAR has not been fully updated to reflect that
change. Now that BIS does not mail copies of licenses to applicants
with SNAP-R accounts, and almost all exporters have access to licenses
electronically (via the SNAP-R system) and can therefore save and print
out multiple copies of their licenses themselves, a requirement to
return a revoked license or a duplicate copy of a license is, under
most circumstances, unnecessary. In Sec. 750.8, the text specific to
the return of a revoked license was relevant when BIS sent validated
hard copies of licenses to exporters. This rule revises Sec. 750.8 by
removing the text requiring the return of revoked or suspended
licenses. The remaining text specifies that if BIS revokes or suspends
a license, the licensee must retain all applicable supporting documents
and records of shipments in accordance with the recording keeping
provisions of part 762 of the EAR. In Sec. 750.9, the text specific to
the return of duplicate licenses was relevant when BIS sent validated
hard copies of licenses to exporters. This rule revises Sec. 750.9
regarding lost, stolen or destroyed paper licenses by removing and
reserving Sec. 750.9(a)(3) of the EAR, which required the return of
either the original or duplicate paper licenses should the original
paper license be found. Doing so aligns the EAR with existing BIS
policies and procedures. This rule also revises Sec. 750.1 to reflect
the changes this rule makes to Sec. Sec. 750.8 and 750.9 of the EAR.
Section 750.7(a) is corrected by adding a sentence that directs
readers to more detailed information regarding the release of
``technology'' authorized by the issuance of a BIS license, which is
set forth within Sec. 734.20 of the EAR. Section 750.7(a) is also
broken up into subparagraphs (1), (2), and (3) to make it easier to
read.
Part 770 Interpretations
``Release'' as it is used in the context of the EAR is defined in
Sec. 734.15, which was added to the EAR in 2016. However, Sec.
770.3(d)(1)(ii) was never updated to reflect the definition. This rule
rectifies this omission by amending Sec. 770.3(d)(1)(ii) to direct
readers to the definition of a ``release'' in Sec. 734.15 and by
altering the language in paragraph (d)(1)(ii) such that it answers the
preceding question in Sec. 770.3(d)(1)(i) correctly given the 2016
change in the definition of ``release.''
Part 772 Definitions of Terms
This final rule removes the definition of the term ``direct
product'' from Sec. 734.3(a)(4) and adds it to Sec. 772.1. Given the
changes to part 734 detailed above, the term ``direct product'' is
better suited to appear as a defined term in part 772. This rule does
not alter the definition of ``direct product'' or the BIS policy
specific to the term.
BIS is also amending paragraph (a) of the definition of ``U.S.
person'' in Sec. 772.1 of the EAR to clarify that the definition
applies for purposes of Sec. Sec. 732.3(j), 736.2(b)(7), and
745.2(a)(1) of the EAR. This change does not alter BIS policy, but does
bring the definition of ``U.S. person'' in line with the rest of the
EAR.
Part 774 The Commerce Control List
This final rule corrects ECCN 0D617 to remove text that was
inadvertently included from 0D606 and published as part of a revision
of 0D617 on June 3, 2020 (85 FR 34306). In ECCN 0D617, this final rule
removes references to 0x606 ECCNs and adds in its place text
referencing the 0x617 ECCNs. This final rule also revises the Related
Controls paragraph and Items paragraph (a) in the List of Items
Controlled section of ECCN 0D617 to remove text that was inadvertently
included from 0D606 and to add in its place the intended text from
0D617. The publication of this correction does not change existing BIS
policy.
This final rule corrects a reference in the control chart for ECCN
7A611 from ``Sec. 724.6(a)(7)'' to ``Sec. 742.6(a)(7)'' in supplement
no. 1 to part 774.
Export Control Reform Act of 2018
On August 13, 2018, the President signed into law the John S.
McCain National Defense Authorization Act for Fiscal Year 2019, which
included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C.
Sections 4801-4852. ECRA provides the legal basis for BIS's principal
authorities and serves as the authority under which BIS issues this
rule.
Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This final rule has not been designated a ``significant
regulatory action,'' under section 3(f) of Executive Order 12866.
2. Notwithstanding any other provision of law, no person may be
required to respond to or be subject to a penalty for failure to comply
with a collection of information, subject to the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless
that collection of information displays a currently valid Office of
Management and Budget (OMB) Control Number. This regulation involves a
collection currently approved by OMB under control number 0694-0088,
Simplified Network Application Processing System. This collection
includes, among other things, license applications and commodity
classification, and carries a burden estimate of 29.6 minutes for a
manual or electronic submission for a total burden estimate of 31,835
hours. BIS does not expect the burden hours associated with this
collection to change.
3. This rule does not contain policies with federalism implications
as that term is defined under Executive Order 13132.
Administrative Procedure Act and Regulatory Flexibility Act
Requirements
Pursuant to Section 4821 of ECRA, this action is exempt from the
Administrative Procedure Act (5 U.S.C. 553) requirements for notice of
[[Page 54809]]
proposed rulemaking, opportunity for public participation and delay in
effective date.
Further, no other law requires that a notice of proposed rulemaking
and an opportunity for public comment be given for this final rule.
Because a notice of proposed rulemaking and an opportunity for public
comment are not required to be given for this rule under the
Administrative Procedure Act or by any other law, the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Accordingly, no regulatory flexibility analysis is
required, and none has been prepared.
List of Subjects
15 CFR Part 732
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 734
Administrative practice and procedure, Exports, Inventions and
patents, Research, Science and technology.
15 CFR Part 738
Exports.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
15 CFR Parts 740, 748 and 750
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Parts 736, 770, and 772
Exports.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, parts 732, 734, 736, 738, 740, 744, 748, 750, 770,
772, and 774 of the Export Administration Regulations (15 CFR parts
730-774) are amended as follows:
PART 732--[AMENDED]
0
1. The authority citation for part 732 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.
0
2. Supplement no. 2 to part 732 is revised to read as follows:
Supplement No. 2 to Part 732--Subject to the EAR?
BILLING CODE 3510-33-P
[[Page 54810]]
[GRAPHIC] [TIFF OMITTED] TR05OC21.003
BILLING CODE 3510-33-C
PART 734--[AMENDED]
0
3. The authority citation for part 734 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026,
61 FR 58767, 3
[[Page 54811]]
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp.,
p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice
of November 12, 2020, 85 FR 72897 (November 13, 2020).
0
4. Section 734.3 is amended by revising paragraphs (a)(4) and (5), to
read as follows:
Sec. 734.3 Items subject to the EAR.
(a) * * *
(4) Certain foreign-produced ``direct products'' of specified
``technology'' and ``software,'' as described in Sec. 736.2(b)(3) of
the EAR; and
Note to paragraph (a)(4): Certain foreign-manufactured items
developed or produced from U.S.-origin encryption items exported
pursuant to License Exception ENC are subject to the EAR. See Sec.
740.17(a) of the EAR.
(5) Certain foreign-produced ``direct products'' of a complete
plant or any major component of a plant as described in Sec.
736.2(b)(3) of the EAR.
* * * * *
PART 736--[AMENDED]
0
5. The authority citation for part 736 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3
CFR, 2001 Comp., p. 783; E.O. 13338, 69 FR 26751, 3 CFR, 2004 Comp.,
p. 168; Notice of November 12, 2020, 85 FR 72897 (November 13,
2020); Notice of May 6, 2021, 86 FR 26793 (May 10, 2021).
0
6. Section 736.2 is amended by:
0
a. Adding double quotation marks around the term ``Direct Product'' in
paragraph (b) introductory text and the paragraph (b)(3) subject
heading;
0
b. Adding double quotation marks around the term ``direct product''
wherever it appears in paragraph (b)(3);
0
c. Adding double quotation marks around the term ``direct products'' in
paragraphs (b)(3)(ii)(B)(2), (b)(3)(iv)(B)(2), and (b)(3)(v); and
0
d. Adding paragraphs (b)(7)(i)(B) and (C).
The additions read as follows:
Sec. 736.2 General prohibitions and determination of applicability.
* * * * *
(b) * * *
(7) * * *
(i) * * *
(B) If you are a ``U.S. person'' as that term is defined in Sec.
772.1 of the EAR, you may not export a Schedule 1 chemical listed in
Supplement No. 1 to part 745 without first complying with the
provisions of Sec. Sec. 742.18 and 745.1 of the EAR.
(C) If you are a ``U.S. person'' as that term is defined in Sec.
772.1 of the EAR, you may not export a Schedule 3 chemical listed in
Supplement No. 1 to part 745 to a destination not listed in Supplement
No. 2 to part 745 without complying with the End-Use Certificate
requirements in Sec. 745.2 of the EAR that apply to Schedule 3
chemicals controlled for CW reasons in ECCN 1C350, ECCN 1C355, and ECCN
1C395.
* * * * *
PART 738--[AMENDED]
0
7. The authority citation for part 738 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C.
287c; 22 U.S.C. 2151 note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004;
42 U.S.C. 2139a; 15 U.S.C. 1824; 50 U.S.C. 4305; 22 U.S.C. 7201 et
seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.
0
8. Section 738.4 is amended by revising paragraph (b)(2) to read as
follows:
Sec. 738.4 Determining whether a license is required.
* * * * *
(b) * * *
(2) Sample CCL entry.
2A000: Entry heading.
License Requirements
Reason for Control: NS, NP, AT
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry................ NS Column 2.
NP applies to 2A000.b entire entry........ NP Column 1.
AT applies to entire entry................ AT Column 1.
List Based License Exceptions (See Part 740 for a Description of all
License Exceptions)
LVS: $5,000
GBS: Yes
List of Items Controlled
Related Definition: N/A
Related Controls: N/A
Items:
a. Having x.
b. Having z.
* * * * *
PART 740--LICENSE EXCEPTIONS
0
9. The authority citation for part 740 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR
58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR,
2001 Comp., p. 783.
0
10. Supplement No. 1 to part 740 is amended by revising the entries for
``Cyprus'' and ``Mexico'' in the Country Group A table to read as
follows:
Supplement No. 1 to Part 740--Country Groups
Country Group A
--------------------------------------------------------------------------------------------------------------------------------------------------------
[A:1] Wassenaar [A:2] Missile [A:4] Nuclear
Country participating technology control [A:3] Australia suppliers group [A:5] [A:6]
states \1\ regime \2\ group \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Cyprus............................. ............... ....................... X X ...................... X
* * * * * * *
Mexico............................. X ....................... X X ...................... X
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 54812]]
* * * * *
PART 744--[AMENDED]
0
11. The authority citation for 15 CFR part 744 continues to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p.
608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3
CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp.,
p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice
of September 18, 2020, 85 FR 59641 (September 22, 2020); Notice of
November 12, 2020, 85 FR 72897 (November 13, 2020).
0
12. Supplement no. 2 to part 744 is amended by revising paragraph
(3)(viii) to read as follows:
Supplement No. 2 to Part 744--List of Items Subject to the Military End
Use or End User License Requirement of Sec. 744.21
* * * * *
(3) * * *
(viii) 3E991 Limited to ``technology'' according to the General
Technology Note for the ``development,'' ``production,'' or ``use'' of
digital oscilloscopes and transient recorders using analog-to-digital
conversion techniques, capable of storing transients by sequentially
sampling single-shot inputs at successive intervals of less than 1 ns
(greater than 1 giga-sample per second), digitizing to 8 bits or
greater resolution and storing 256 or more samples.
* * * * *
Supplement 4 to Part 744 [Amended]
0
13. Supplement no. 4 to part 744 is amended in footnote 1 by adding
double quotation marks around the terms ``direct product'' and ``Direct
product'' wherever they appear.
PART 748--[AMENDED]
0
14. The authority citation for part 748 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p.
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of
August 6, 2021, 86 FR 43901 (August 10, 2021).
0
15. Section 748.3 is amended by revising the introductory text of
paragraph (c) and the introductory text of paragraph (c)(1) to read as
follows:
Sec. 748.3 Classification requests and advisory opinions.
* * * * *
(c) Advisory Opinions. Advisory opinion requests must be made in
writing, and may be delivered to BIS by mail, by email, or through the
BIS website. If delivering a request by mail, submit to the address
listed in Sec. 748.1(d)(2). Both your letter and envelope must be
marked ``Advisory Opinion.'' If submitting by email, submit to
[email protected] with the subject title ``Advisory Opinion.'' If
submitting through the BIS website, see http://www.bis.doc.gov.
(1) Your submission must contain the following information if you
are requesting guidance regarding interpretations of the EAR:
* * * * *
0
16. Supplement no. 2 to part 748 is amended by revising paragraph
(o)(3)(i) to read as follows:
Supplement No. 2 to Part 748--Unique Application and Submission
Requirements
* * * * *
(o) * * *
(3) * * *
(i) Technology controlled for national security reasons. If you are
submitting a license application to export, reexport, and transfer (in-
country) technology controlled for national security reasons to a
country not listed in Country Group D:1, E:1, or E:2 (see Supplement
No. 1 to part 740 of the EAR), you must obtain the letter from the
ultimate consignee verifying that, unless prior authorization is
obtained from BIS, the consignee will not knowingly reexport the
technology to any destination, or export the ``direct product'' of the
technology, directly or indirectly, to a country listed in Country
Group D:1, E:1, or E:2 (see Supplement No. 2 to part 740 of the EAR).
If you are unable to obtain this letter of assurance from your
consignee, you must state in your license application why the
assurances could not be obtained. BIS may request a copy of this
letter. * * *
* * * * *
0
17. Supplement no. 3 to part 748 is amended by revising paragraph
(b)(6) to read as follows:
Supplement No. 3 to Part 748--Statement by Ultimate Consignee and
Purchaser Content Requirements
* * * * *
(b) * * *
(6) Block 6: Ultimate Consignee. Enter the requested information
and sign the statement digitally or in ink. (For a definition of
ultimate consignee, see Sec. 748.5(e) of this part.)
* * * * *
PART 750--[AMENDED]
0
18. The authority citation for part 750 is revised to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O.
13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR
44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR,
2013 Comp., p. 223; Presidential Determination 2003-23, 68 FR 26459,
3 CFR, 2004 Comp., p. 320.
0
19. Section 750.1 is revised to read as follows:
Sec. 750.1 Scope.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C. This part describes the Bureau of Industry
and Security's (BIS) process for reviewing your application for a
license and the applicable processing times for various types of
applications. Information related to the issuance, revocation, or
suspension of a license and the denial of a license application is
provided along with the procedures on obtaining a duplicate or
replacement license (limited to those which BIS has validated and
issued in hardcopy), the transfer of a license, and the shipping
tolerances available on licenses. This part also contains instructions
on obtaining the status of a pending application.
0
20. Section 750.7 is amended by revising paragraph (a) to read as
follows:
Sec. 750.7 Issuance of licenses.
(a) Scope. (1) Unless limited by a condition set out in a license,
the export, reexport, or transfer (in-country) authorized by a license
is for the item(s), end-use(s), and parties described in the license
application and any letters of explanation. The applicant must inform
the other parties identified on the license, such as the ultimate
consignees and end users, of the license's scope and of the specific
conditions applicable to them.
(2) BIS grants licenses in reliance on representations the
applicant made or submitted in connection with the license application,
letters of explanation, and other documents submitted. Any license
obtained in which a false or misleading representation was made, or a
material fact was falsified or concealed on the license application,
letters of explanation, or any document submitted in connection with
the license application, shall be deemed void as of
[[Page 54813]]
the date of issuance. See Sec. 750.8(a) of the EAR, which provides
that all licenses are subject to revocation, in whole or in part,
without notice. See part 764 of the EAR for other sanctions that may
result in the event a violation occurs.
(3) A BIS license authorizing the release of ``technology'' to an
entity also authorizes the release of the same ``technology'' to the
entity's foreign persons who are permanent and regular employees (and
who are not proscribed persons) of the entity's facility or facilities
authorized on the license, except to the extent a license condition
limits or prohibits the release of the ``technology'' to foreign
persons of specific countries or country groups. See Sec. 734.20 of
the EAR for additional information regarding the release of
``technology'' authorized by a BIS license.
* * * * *
0
21. Section 750.8 is amended by revising paragraph (b) to read as
follows:
Sec. 750. 8 Revocation or suspension of licenses.
* * * * *
(b) Revoked or suspended licenses. If BIS revokes or suspends a
license, the licensee must retain all applicable supporting documents
and records of shipments in accordance with the recordkeeping
provisions of part 762 of the EAR.
0
22. Section 750.9 is amended by revising paragraph (a) to read as
follows:
Sec. 750.9 Duplicate licenses.
(a) Lost, stolen or destroyed. For licensees whom BIS authorized
the submission of paper applications, if a license is lost, stolen or
destroyed, you, as the licensee, may obtain a duplicate of the license
by submitting a letter to the BIS at the address listed in Sec.
748.1(d)(2) of the EAR, Attention: Duplicate License Request.'' You
must certify in your letter:
(1) That the original license ([number] issued to [name and address
of licensee]) has been lost, stolen or destroyed; and
(2) The circumstances under which it was lost, stolen or destroyed.
* * * * *
PART 770--[AMENDED]
0
23. The authority citation for 15 CFR part 770 is revised to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
0
24. Section 770.3 is amended by revising paragraph (d)(1)(ii) to read
as follows:
Sec. 770.3 Interpretations related to exports of technology and
software to destinations in Country Group D:1.
* * * * *
(d) * * *
(1) * * *
(ii) Answer 1. Export of technology includes release of U.S.-origin
data in a foreign country as defined in Sec. 734.15 of the EAR. So
long as the circumstances described here would not exceed that
permitted under the License Exception TSU for operation technology and
software, as described in Sec. 740.13(a) of the EAR, this is not a
``release'' of technology and a license would not be required.
* * * * *
PART 772--[AMENDED]
0
25. The authority citation for part 772 continues to read as follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783.
0
26. Section 772.1 is amended by:
0
a. Adding a definition for ``direct product'' in alphabetical order;
and
0
b. Revising paragraph (a) introductory text of the definition of ``U.S.
person''.
The addition and revision read as follows:
Sec. 772.1 Definitions of terms as used in the Export Administration
Regulations (EAR).
* * * * *
Direct product. The immediate product (including processes and
services) produced directly by the use of technology or software.
* * * * *
U.S. Person. (a) For purposes of Sec. Sec. 732.3(j), 736.2(b)(7),
740.21(e)(1), 744.6, 744.10, 744.11, 744.12, 744.13, 744.14, and
745.2(a)(1) of the EAR, the term U.S. person includes:
* * * * *
PART 774--[AMENDED]
0
27. The authority citation for 15 CFR part 774 continues to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C.
287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15
U.S.C. 1824; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210;
E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66
FR 44025, 3 CFR, 2001 Comp., p. 783.
0
28. Supplement No. 1 to Part 774 is amended by revising ECCN 0D617 and
ECCN 7A611 to read as follows:
Supplement No. 1 to Part 774--The Commerce Control List
* * * * *
0D617 ``Software'' ``specially designed'' for the ``development,''
``production,'' operation, or maintenance of commodities controlled
by 0A617, ``equipment'' controlled by 0B617, or materials controlled
by 0C617 (see List of Items Controlled).
License Requirements
Reason for Control: NS, RS, AT, UN
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry, except 0D617.y NS Column 1.
RS applies to entire entry, except 0D617.y RS Column 1.
RS applies to 0D617.y..................... China, Russia, or Venezuela
(see Sec. 742.6(a)(7)).
AT applies to entire entry................ AT Column 1.
UN applies to entire entry, except 0D617.y See Sec. 746.1(b) for UN
controls.
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
TSR: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec.
740.20(c)(2) of the EAR) may not be used for any ``software'' in
0D617.
List of Items Controlled
Related Controls: (1) ``Software'' directly related to articles
controlled by USML Category XIII is subject to the control of USML
paragraph XIII(l). (2) See ECCN 0A919 for foreign-made ``military
commodities'' that incorporate more than a de minimis amount of
U.S.-origin ``600 series'' controlled content.
Related Definitions: N/A
Items:
a. ``Software'' (other than ``software'' controlled in paragraph
.y of this entry) ``specially designed'' for the ``development,''
``production,'' operation or maintenance of commodities controlled
by ECCNs 0A617 (except 0A617.y), 0B617, or 0C617.
b. to x. [Reserved].
y. Specific ``software'' ``specially designed'' for the
``production,'' ``development,'' operation or maintenance of
commodities controlled by ECCN 0A617.y.
* * * * *
7A611 Military fire control, laser, imaging, and guidance equipment,
as follows (see List of Items Controlled).
License Requirements
Reason for Control: NS, MT, RS, AT, UN
[[Page 54814]]
Country chart (see Supp. No.
Control(s) 1 to part 738)
NS applies to entire entry except 7A611.y. NS Column 1.
MT applies to commodities in 7A611.a that MT Column 1.
meet or exceed the parameters in 7A103.b
or .c.
RS applies to entire entry except 7A611.y. RS Column 1.
RS applies to 7A611.y..................... China, Russia, or Venezuela
(see Sec. 742.6(a)(7)).
AT applies to entire entry................ AT Column 1.
UN applies to entire entry except 7A611.y. See Sec. 746.1(b) for UN
controls.
List Based License Exceptions (See Part 740 for a description of all
license exceptions)
LVS: $1500
GBS: N/A
Special Conditions for STA
STA: Paragraph (c)(2) of License Exception STA (Sec. 740.20(c)(2)
of the EAR) may not be used for any item in 7A611.
List of Items Controlled
Related Controls: (1) Military fire control, laser, imaging, and
guidance equipment that are enumerated in USML Category XII, and
technical data (including software) directly related thereto, are
subject to the ITAR. (2) See Related Controls in ECCNs 0A504, 2A984,
6A002, 6A003, 6A004, 6A005, 6A007, 6A008, 6A107, 7A001, 7A002,
7A003, 7A005, 7A101, 7A102, and 7A103. (3) See ECCN 3A611 and USML
Category XI for controls on countermeasure equipment. (4) See ECCN
0A919 for foreign-made ``military commodities'' that incorporate
more than a de minimis amount of U.S. origin ``600 series''
controlled content.
Related Definitions: N/A
Items:
a. Guidance or navigation systems, not elsewhere specified on
the USML, that are ``specially designed'' for a defense article on
the USML or for a 600 series item.
b. to w. [Reserved]
x. ``Parts,'' ``components,'' ``accessories,'' and
``attachments,'' including accelerometers, gyros, angular rate
sensors, gravity meters (gravimeters), and inertial measurement
units (IMUs), that are ``specially designed'' for defense articles
controlled by USML Category XII or items controlled by 7A611, and
that are NOT:
x.1. Enumerated or controlled in the USML or elsewhere within
ECCN 7A611;
x.2. Described in ECCNs 6A007, 6A107, 7A001, 7A002, 7A003,
7A101, 7A102 or 7A103; or
x.3. Elsewhere specified in ECCN 7A611.y or 3A611.y.
y. Specific ``parts,'' ``components,'' ``accessories,'' and
``attachments'' ``specially designed'' for a commodity subject to
control in this ECCN or a defense article in Category XII and not
elsewhere specified on the USML or in the CCL, as follows, and
``parts,'' ``components,'' ``accessories,'' and ``attachments''
``specially designed'' therefor:
y.1 [Reserved]
* * * * *
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2021-20649 Filed 10-4-21; 8:45 am]
BILLING CODE 3510-33-P
