BIS Corrects Errors in Final Rule Implementing Numerous Wassenaar Changes

The Bureau of Industry and Security has issued a final rule, effective February 5, 2008, which corrects errors in 15 CFR Parts 742 and 744, and Categories 1, 3, 6 and 7 on the Commerce Control List, as well as its list of eligible items for Authorized Validated End-User (VEU) affected by the November 5, 2007 final rule that amended the Export Administration Regulations to implement the agreement reached at the December 2006 plenary meeting of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement, or WA).

Corrections to VEU List, 15 CFR Parts 742, 744, CCL Cats 1, 3, 6 and 7

This final rule corrects sections of the EAR amended by BIS' November 5, 2007 final rule as follows:

15 CFR Part 748, Supplement No. 7 (List of VEUs). The November 5th final rule intended to redesignate 3B001.f.2 as 3B001.f.3. Therefore, this rule replaces the listing of "3B001.f.2" with "3B001.f.3" for Applied Materials China, Ltd in Supplement No. 7 to 15 CFR Part 748 (Authorization VEU: List of VEUs, Respective Items Eligible for Export, Reexport and Transfer, and Eligible Destinations).

15 CFR Part 742. 15 CFR 742.6 is amended by adding the phrase "(except 6A002.a.3.d.a.2 and 6A002.a.3.e for lead selenide focal plane arrays)" after 6A002.a.3 in paragraph (a)(1) to reflect a change in RS controls in Export Control Classification Number (ECCN) 6A002 that was intended to be the November 5th final rule.

15 CFR Part 744. 15 CFR 744.17 is amended by revising the reference in the first sentence to "Part 42" to read "Part 742" to fix the typographical error.

CCL Category 1. ECCN 1A002 is amended to fix a typographical error by revising the phrase "structures of laminates" to read "structures or laminates" in the last note in the items paragraph of the List of Items Controlled section.

CCL Category 3. ECCN 3A001 is amended by revising the abbreviation "TWAS" to read "TWTAs" in the GBS paragraph of the License Exception section to fix that typographical error.

CCL Category 6. ECCN 6A004 is amended by replacing the double quotes with single quotes around the term 'aspheric optical element' in the Related Definitions paragraph of the List of Items Controlled section of ECCN 6A004, because single quotes signify a local definition found in the ECCN as opposed to a definition that is located in 15 CFR Part 772.

ECCN 6A005 is amended by:

a. Removing the reference to a.4 in the NP control paragraph of the License Requirements section, because the equipment in this paragraph is not controlled for nuclear non-proliferation;

b. Revising the phrase "6A005.c.1.b and 6A005.c.2.b" to read "6A005.c.1.b or 6A005.c.2.b" in paragraphs h and i of the License Requirement Note; and

c. Revising the GBS and CIV paragraphs in the License Exception section of ECCN 6A005 (lasers).

Rationale: The license exception language under the recently revised ECCN 6A005 does not represent the intent of the agencies involved in the revisions for ECCN 6A005. The intent was for the items described under the revised license exception language to match the descriptions under the earlier version. The license exception language for License Exceptions GBS and CIV under the previous ECCN 6A005 allowed only certain dye, liquid, CO and CO2, and neodymium lasers to be eligible for these exceptions. The license exception language under the recently revised ECCN 6A005 allows all lasers and components, with the exception of NP controlled items, to be eligible for GBS and CIV exceptions. Implementing controls for fiber lasers was a significant part of the 2006 Wassenaar revisions to 6A005. An unintended consequence of the language published on November 5, 2007 permitted these lasers to be eligible for License Exceptions GBS and CIV.

ECCN 6A995 is amended by:

a. Revising the numbering of the paragraphs in 6A995.d.1, because these paragraphs were mis-numbered; and

b. Revising the average output power from "500 W" to "50 W" in 6A995.e.1.b to maintain the anti-terrorism controls on lasers that were controlled in 6A005.c.2.c.3.b.2 prior to the November 2007 rule.

ECCN 6E201 is amended by revising the heading to:

a. Remove the phrase "not controlled by 6E001 or 6E002," because 6E001 controls development technology and 6E002 controls production technology, and therefore, the phrase is not necessary in 6E201, which controls use technology; and

b. Remove the reference to 6A005.a.4, because it is not controlled for nuclear non-proliferation reasons.

CCL Category 7. ECCN 7A101 is amended by replacing the word "therefore" with "therefor" in the heading.

ECCNs 7D001 and 7D003 are amended by revising the MT paragraph in the License Requirements section to replace the text "MT applies to entire entry except 7A008" with "MT applies to "software" for equipment controlled for MT reasons. MT does not apply to "software" for equipment controlled by 7A008." This amendment clarifies that the MT controls for these ECCNs only apply to equipment controlled for MT reasons and do not apply to software for equipment controlled by 7A008.

ECCNs 7E001 and 7E002 are amended by revising the MT paragraph in the License Requirements section to replace the text "MT applies to entire entry except 7A008" with "MT applies to "technology" for equipment controlled for MT reasons. MT does not apply to "technology" for equipment controlled by 7A008." This amendment clarifies that the MT controls for these ECCNs only apply to equipment controlled for MT reasons and do not apply to technology for equipment controlled by 7A008.

Saving Clause

Shipments of items removed from license exception eligibility or eligibility for export without a license 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 February 5, 2008, pursuant to actual orders for export to a foreign destination, may proceed to that destination under the previous license exception eligibility or without a license so long as they have been exported from the U.S. before April 7, 2008. Any such items not actually exported before midnight, on April 7, 2008, require a license in accordance with this regulation.

(See ITT's Online Archives or 11/28/07 news, 07112830, for Part X of BP's summary of BIS' original final rule implementing numerous Wassenaar changes, with links to the previous parts.)

BIS final rule correction (D/N 070105004-7809-02, FR Pub 02/05/08) available at http://a257.g.akamaitech.net/7/257/2422/01jan20081800/edocket.access.gpo.gov/2008/pdf/08-480.pdf