BIS Final Rule Implements Recent Australia Group Changes, CWC Country Changes, Etc.

The Bureau of Industry and Security issued a final rule, effective July 8, 2008, which amends the Export Administration Regulations to, among other things, implement the understandings reached at the April 2008 plenary meeting of the Australia Group (AG)¹.

Listing for Highly Pathenogenic Avian Influenza Amended

The understandings reached at the April 2008 annual plenary meeting included a decision to update the AG "Control List of Biological Agents" by revising the listing for avian influenza viruses to replace the description of highly pathogenic avian influenza (HPAI), which was based on a European Community (EC) directive (Directive 92/40/EC) that was repealed, effective July 1, 2007. The decision allows AG participating countries to adopt HPAI language that is based on the definition currently used by the World Organization for Animal Health (OIE).

Criteria for HPAI under OIE definition. To conform the EAR with the OIE definition of HPAI, BIS' final rule revises the listing for avian influenza viruses in Export Control Classification Number (ECCN) 1C352.a.2 on the Commerce Control List (CCL) (Supplement No. 1 to 15 CFR Part 774), under which an avian influenza (AI) virus will be considered to be highly pathogenic if the virus: (1) Has an intravenous pathogenicity index (IVPI) in 6-week-old chickens greater than 1.2; or (2) causes at least 75% mortality in 4- to 8-week-old chickens infected intravenously.

HPAI criteria for H5, H7 AI subtypes. The final rule also adds a new Note to ECCN 1C352.a.2 that identifies certain AI viruses of the H5 or H7 subtype that are controlled under this ECCN even though they do not possess either of the two HPAI characteristics described above. This new Note requires that AI viruses of the H5 or H7 subtype that do not have either of these characteristics be sequenced to determine whether multiple basic amino acids are present at the cleavage site of the haemagglutinin molecule (HA0). If the test indicates that the amino acid motif is similar to that observed for other HPAI isolates, then the isolate being tested should be considered as HPAI and the virus is controlled under ECCN 1C352.a.2.

Congo and Guinea-Bissau Added as CWC States Parties

The final rule amends Supplement No. 2 to 15 CFR Part 745 (States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction) by adding "Congo (Republic of the)" and "Guinea-Bissau," which became States Parties to the Chemical Weapons Convention (CWC) on January 3, 2008, and June 19, 2008, respectively. As a result, the CW license requirements and policies that apply to these two countries now conform with those applicable to other CWC States Parties, as described in 15 CFR 742.18.

(The final rule also amends 15 CFR 745.1(a)(2) and (b)(3), which describe the advance notification and annual report requirements that apply to exports of CWC Schedule 1 chemicals, by updating the fax number and address for submitting these documents to BIS. In addition, this rule amends 15 CFR 745.2(a)(2), which describes the End-Use Certificate requirement that applies to certain exports of CWC Schedule 3 chemicals (i.e., exports to States not Party to the CWC), by updating the fax number and address for submitting this document to BIS.)

Saving Clause

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 August 7, 2008, 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 August 22, 2008. Any such items not actually exported or reexported before midnight, on August 22, 2008, require a license in accordance with this regulation.

"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 regulatory action may continue to be made under the previously available license exception or without a license (NLR) before August 22, 2008. Beginning at midnight on August 22, 2008, 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 regulation.

¹The Australia Group is a multilateral forum, consisting of 40 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.

- comments may be submitted on a continuing basis

BIS contact - Elizabeth Scott (202) 482-3343

BIS final rule (D/N 080528717-8722-01, FR Pub 07/08/08) available at http://edocket.access.gpo.gov/2008/pdf/E8-15386.pdf