BIS Final Rule Amends EAR to Implement Understandings Reached at Australia Group Meeting, Etc. (Part I)
The Bureau of Industry and Security has issued a final rule, effective November 24, 2006, which amends the Export Administration Regulations (EAR) to implement the understandings reached at the June 2006 plenary meeting of the Australia Group (AG). This final rule also updates the list of countries that currently are States Parties to the Chemical Weapons Convention (CWC), etc.
According to BIS, the AG is a multilateral forum, consisting of 39 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.
BIS explains that 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.
This is Part I of a multipart summary of BIS' final rule, and covers the understandings reached at the June 2006 plenary meeting of the AG and the savings clause. See future issues of ITT for additional summaries of this final rule.
Revisions to EAR Based on Understandings Reached at April AG Plenary Meeting
In its final rule, BIS states that the EAR is being amended so as to incorporate the following understandings reached at the June 2006 AG plenary meeting:
Addition of certain fungi and toxins to list of biological agents, etc. According to BIS, the understandings reached at the June 2006 annual plenary meeting included a decision to add certain fungi and toxins to the AG "Control List of Biological Agents." This rule amends the EAR to reflect that decision by revising Export Control Classification Number (ECCN) 1C351, which controls certain human and zoonotic pathogens and toxins, to add these fungi (i.e., Coccidioides immitis and Coccidioides posadasii) and toxins (i.e., Shiga-like ribosome inactivating proteins other than verotoxin). All Shiga-like ribosome inactivating proteins, including verotoxin, are now listed in 1C351.d.10, while the fungi Coccidioides immitis and Coccidioides posadasii are now listed in 1C351.e.1 and e.2, respectively.
Prior to the publication of this rule, the fungi Coccidioides immitis and Coccidioides posadasii and Shiga-like ribosome inactivating proteins other than verotoxin were listed under ECCN 1C360. This rule removes these items from ECCN 1C360.
BIS states that as a result of the addition of Shiga-like ribosome inactivating proteins other than verotoxin to ECCN 1C351 and their removal from ECCN 1C360, this rule makes conforming changes to ECCN 1C353, which controls certain AG-listed genetic elements and genetically modified organisms, and ECCN 1C991, which controls vaccines, immunotoxins, medical products, and diagnostic and food testing kits. The List of Items Controlled in each of these ECCNs is amended to remove all references to ECCN 1C360.a.3.a, since Shiga-like ribosome inactivating proteins other than verotoxin are now controlled under ECCN 1C351.d.10.
BIS notes that the scope of the EAR license requirements that apply to the specific items affected by the amendments to ECCNs 1C351, 1C353, 1C360, and 1C991 (described above) remains unchanged. The affected items in ECCNs 1C351, 1C353, and 1C360 continue to require a license for export or reexport to all countries or destinations indicated under CB Column 1 or AT Column 1 on the Commerce Country Chart (Supplement No. 1 to 15 CFR Part 738)--none of these items are controlled under 1C351.d.5. or .d.6, which also require a license for CWC reasons. The affected items in ECCN 1C991 continue to require a license for export or reexport to all destinations indicated under CB Column 3 or AT Column 1 on the Commerce Country Chart.
Expansion of the scope of dual-use equipment to include niobium, niobium alloys, etc. According to BIS, this rule also amends the EAR to reflect the understanding to expand the scope of the AG "Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology" to include equipment in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from niobium (columbium) or niobium alloys. Specifically, this rule amends ECCN 2B350, which controls certain chemical manufacturing facilities and equipment, to include the following equipment in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from niobium (columbium) or niobium alloys: Reaction vessels or reactors; agitators for use in reaction vessels or reactors (including impellers, blades or shafts designed for such agitators); certain storage tanks, containers or receivers; certain heat exchangers or condensers (including tubes, plates, coils or blocks designed for such heat exchangers or condensers); certain distillation or absorption columns (including liquid distributors, vapor distributors or liquid collectors designed for such distillation or absorption columns); certain valves (including casings and preformed casing liners designed for such valves); multi-walled piping incorporating a leak detection port; and certain multiple-seal and seal-less pumps or vacuum pumps (including casings, preformed casing liners, impellers, rotors or jet pump nozzles designed for such pumps).
BIS states that like all other items controlled under ECCN 2B350, the newly controlled equipment and accessories require a license to all countries or destinations indicated under CB Column 2 or AT Column 1 on the Commerce Country Chart. A license generally is not required to export or reexport ECCN 2B350 equipment and components to AG participating countries; however, certain transactions may be subject to license requirements described elsewhere in the EAR (e.g., 15 CFR Part 744).
Savings Clause
BIS' final rule provides that shipments of items removed from eligibility for export or reexport under a license exception or without a license (i.e., under the designator "NLR") as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on December 26, 2006, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previously applicable license exception or without a license (NLR) so long as they are exported or reexported before January 8, 2007. Any such items not actually exported or reexported before midnight, on January 8, 2007, require a license in accordance with this final rule.
BIS states that "deemed" exports of "technology" and "source code" removed from eligibility for export under a license exception or without a license (under the designator "NLR") as a result of this final rule may continue to be made under the previously available license exception or without a license (NLR) before January 8, 2007. Beginning at midnight on January 8, 2007, such "technology" and "source code" may no longer be released, without a license, to a foreign national subject to the "deemed" export controls in the EAR when a license would be required to the home country of the foreign national in accordance with this final rule.
-public comments are welcome on a continuing basis
BIS contact - Elizabeth Scott (202) 482-3343
BIS final rule (D/N 061027281-6281-01, FR Pub 11/24/06) available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-19825.pdf