BIS Final Rule Implements Australia Group Changes

The Bureau of Industry and Security (BIS) has issued a final rule, effective December 29, 2004, which amends the Export Administration Regulations to implement the understandings reached at the June 2004 plenary meeting of the Australia Group (AG) and through a subsequent AG intersessional decision.

(The AG is a multilateral forum, consisting of 38 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.)

Specifically, this BIS final rule amends the EAR:

By adding three new bacteria and two new viruses to the list of AG-controlled plant pathogens described on the Commerce Control List (CCL). These AG-listed bacteria and viruses, along with all other items controlled by ECCN 1C354, require a license for export or reexport to all destinations, worldwide;

To indicate that certain medical products identified on the CCL, which contain AG-controlled conotoxins, no longer require a license for chemical/biological (CB) reasons;

By adding a new criterion to the list of factors that BIS will consider when determining what action should be taken on license applications for AG-listed items;

To reflect the addition of five new member countries (Estonia, Latvia, Lithuania, Malta, and Slovenia) to the Australia Group;

Correcting an inadvertent omission from a previous AG plenary rule (published on May 31, 2002) by removing Bulgaria from the EAR list of countries of concern for CB reasons;

To implement an AG intersessional decision, which was adopted after the June 2004 AG plenary meeting, by adding nine precursor chemicals to the list of AG-controlled precursor chemicals described on the CCL;

By revising a CCL entry containing protective and detection equipment identified on the Wassenaar Arrangement dual-use list to indicate that CB controls in the EAR apply to certain chemical detection systems and dedicated detectors therefor, described in that entry, because such systems and detectors also are included on the AG "Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology;"

By revising a related AG entry on the CCL to indicate that it does not control any of the chemical detection systems described in the Wassenaar list entry, thereby eliminating any appearance of an overlap between the two CCL entries;

By amending three CCL entries (ECCNs 1C355, 1C395, and 1C995), which control certain precursor chemicals and/or mixtures and test kits containing such chemicals, to restore the text of the license requirements notes that were inadvertently omitted from these ECCNs in a rule that BIS published on July 30, 2004. (See ITT's Online Archives or 08/19/04 news, 04081915, for Part IV of BP's multipart series of summaries on BIS' July 30, 2004 interim final rule, with link to previous summaries);

By updating the list of countries that currently are States Parties to the Chemical Weapons Convention (CWC) by adding seven countries that recently became States Parties (Chad, Madagascar, Marshall Islands, Rwanda, Saint Kitts and Nevis, Sierra Leone, and Solomon Islands);

Limited "Grace Period" for Items Removed from License Exception Eligibility, Etc.

BIS states that exports and reexports that did not require a license or that were eligible for a License Exception prior to publication of this rule and for which this rule imposes a new license requirement or removes that License Exception availability may be made without a license or under that License Exception if the items being exported or reexported were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export pursuant to actual orders for export or reexport, on or before January 13, 2005, and exported or reexported January 28, 2005.

According to BIS, any such exports or reexports not meeting those deadlines require a license in accordance with this regulation.

- public comments on this regulation are welcome on a continuing basis

BIS contact - Douglas Brown (202) 482-7900

BIS notice (FR Pub 12/29/04, D/N 041221359-4359-01) available at http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-28538.pdf.