BIS Final Rule Makes EAR Technical Corrections

The Bureau of Industry and Security has issued a final rule, effective August 6, 2007, which amends the Export Administration Regulations by making several technical corrections, including making minor revisions to three final rules.

Highlights of BIS' corrections and revisions include the following (partial list):

Clarification on filing an AES or SED record. The final rule amends 15 CFR 758.1(b)(2) regarding the Shipper's Export Declaration (SED) or Automated Export System (AES) record to clarify that the wording in the paragraph is meant to apply only to those items having a license requirement that cannot be overcome by a license exception by changing it to read: "For all exports subject to the EAR that require submission of a license application, regardless of value or destination;"

Reinsertion of grace periods for import certificate, end-user statement, etc. The final rule amends BIS' June 19, 2007 final rule regarding U.S. licensing requirements and policy on exports and reexports to China¹ that inadvertently removed and reserved paragraph (a) from 15 CFR 748.12 (special provisions for support documents) by correctly adding it as follows:

(a) Grace periods. Whenever the requirement for an Import Certificate or End-User Statement or Statement by Ultimate Consignee or Purchaser is imposed or extended by a change in the regulations, the license application need not conform to the new support documentation requirements for a period of 45 days after the effective date of the regulatory change published in the Federal Register.

(1) Requirements are usually imposed or extended by virtue of one of the following:

(i) Addition or removal of national security controls over a particular item; or

(ii) Development of an Import Certificate/Delivery Verification or End-User Certificate program by a foreign country; or

(iii) Removal of an item from eligibility under the Special Comprehensive License described in part 752 of the EAR, when you hold such a special license and have been exporting the item under that license.

(2) License applications filed during the 45 day grace period must be accompanied by any evidence available to you that will support representations concerning the ultimate consignee, ultimate destination, and end use, such as copies of the order, letters of credit, correspondence between you and ultimate consignee, or other documents received from the ultimate consignee. You must also identify the regulatory change (including its effective date) that justifies exercise of the 45 day grace period. Note that an Import Certificate or End-User Statement will not be accepted, after the stated grace period, for license applications involving items that are no longer controlled for national security reasons. If an item is removed from national security controls, you must obtain a Statement by Ultimate Consignee and Purchaser as described in 15 CFR 748.11 of this part. Likewise, any item newly controlled for national security purposes requires support of an Import Certificate or End-User Statement as described in 15 CFR 748.10 after expiration of the stated grace period.

Revision of certain ECCNs. BIS' final rule makes various minor revisions to certain Export Control Classification Numbers (ECCNs) as follows:

adds both a License Exceptions section and List of Items Controlled sections to ECCN 0A987, which are identical to those respective sections in ECCN 0A985;

adds the applicable reasons for control by adding nuclear nonproliferation (NP) and antiterrorism (AT) to both ECCNs 1C239 and 1C240;

provides additional guidance by alerting readers of ECCN 1C239 to similar export controls found in related ECCNs;

amends various parts of the EAR and three separate ECCNs by removing references to the defunct "International Munitions List" to replace it with its successor list, "Wassenaar Arrangement Munitions List;"

removes references to ECCNs 6D104 and 6E102 from 15 CFR 740.2(a)(7) because those ECCNs do not currently exist on the Commerce Control List (CCL);

revises the Related Controls paragraph of ECCN 6D001 to read ''See also 6D991, and ECCN 6E001 ('development') for 'technology' for items controlled under this entry;''

amends the Bureau of Export Administration's (BXA, BIS' predecessor) May 26, 2000 final rule² by updating 15 CFR 740.16(i) to replace ''5A991.f'' with ''5A991.g," in order to make the requirements concerning reexports to Sudan under License Exception APR consistent with the list of items allowed for reexport to Sudan under 15 CFR 742.10.

Citations corrected. The final rule corrects several inaccurate citations to the "General Prohibitions" of the EAR by correctly citing the section as 15 CFR Part 736, instead of 15 CFR Part 734. The rule replaced an incorrect citation under 15 CFR 765.5(c)(4)(ii) regarding the period of retention of recordkeeping with the correct citation to 15 CFR 764.5(c)(4)(ii). The rule also replaces an incorrect citation regarding definitions for "Hold Without Action" under 15 CFR 772.1 with the correct citation to 15 CFR 750.4(b).

Removal of endnote. The final rule amends BIS' August 30, 2005 final rule³ by removing endnote 1 for "balance of plant," which had no corresponding text, from the end of Supplement No. 4 to 15 CFR Part 744.

¹See ITT's Online Archives or 07/26/07, 07072620, for BP summary of BIS' final rule revising U.S. licensing requirements and policy on exports and reexports to China.

²See ITT's Online Archives or 05/30/00 news, (Ref:00052666A), for BP summary of BXA's final rule which made technical corrections to the CCL regarding the Wassenaar Arrangement.

³See ITT's Online Archives or 09/01/05 news, 05090115, for BP summary of BIS' final rule removing certain export/reexport license requirements for India and removing 6 Indian entities from the entity list.

BIS contact - Steven Emme (202) 482-2440

BIS final rule (D/N 070611188-7189-01, FR Pub 08/06/07) available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-15099.pdf