Title 15—Commerce and Foreign Trade--Volume 1
PART 748—APPLICATIONS (CLASSIFICATION, ADVISORY, AND LICENSE) AND DOCUMENTATION
§ 748.1   General provisions.
(a) Scope. In this part, references to the Export Administration Regulations or EAR are references to 15 CFR chapter VII, subchapter C. The provisions of this part involve requests for classifications and advisory opinions, export license applications, reexport license applications, and certain license exception notices subject to the EAR. All terms, conditions, provisions, and instructions, including the applicant and consignee certifications, contained in electronic or paper form(s) are incorporated as part of the EAR. For the purposes of this part, the term “application” refers to both electronic applications and the Form BIS-748P: Multipurpose Application.
(b) BIS responses. BIS will give a formal classification, advisory opinion or licensing decision only through the review of a properly completed application supported by all relevant facts and required documentation submitted in writing or electronically to BIS.
(c) Confidentiality. Consistent with section 12(c) of the Export Administration Act, as amended, information obtained for the purpose of considering license applications, and other information obtained by the U.S. Department of Commerce concerning license applications, will not be made available to the public without the approval of the Secretary of Commerce or of the Under Secretary for Industry and Security.
(d) Electronic filing required. All export and reexport license applications, License Exception AGR notifications, requests to authorize use of License Exception STA for “600 series” end items (which are currently submitted as export license applications) and classification requests and their accompanying documents must be filed via BIS's Simplified Network Application Processing system (SNAP-R), unless BIS authorizes submission via the paper forms BIS 748-P (Multipurpose Application Form), BIS-748P-A (Item Appendix) and BIS-748P-B, (End-User Appendix). Only original paper forms may be used. Facsimiles or reproductions are not acceptable.
(1) Reasons for authorizing paper submissions. BIS will process paper applications notices or requests if the submitting party meets one or more of the following criteria:
(i) BIS has received no more than one submission ( i.e. the total number of export license applications, reexport license applications, license exception AGR notifications, and classification requests) from that party in the twelve months immediately preceding its receipt of the current submission;
(ii) The party does not have access to the Internet;
(iii) BIS has rejected the party's electronic filing registration or revoked its eligibility to file electronically;
(iv) BIS has requested that the party submit a paper copy for a particular transaction; or
(v) BIS has determined that urgency, a need to implement U.S. government policy or a circumstance outside the submitting party's control justify allowing paper submissions in a particular instance.
(2) Procedure for requesting authorization to file paper applications, notifications, or requests. The applicant must state in Block 24 or as an attachment to the paper application (Form BIS 748-P) which of the criteria in paragraph (d)(1) of this section it meets and the facts that support such statement. Submit the completed application, notification or request to Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania, NW., Room 2099B, Washington DC 20230.
(3) BIS decision. If BIS authorizes or requires paper filing pursuant to this section, it will process the application, notification or request in accordance with part 750 of the EAR. If BIS rejects a request to file using paper, it will return the Form BIS-748P and all attachments to the submitting party without action and will state the reason for its decision.
§ 748.2   Obtaining forms; mailing addresses.
(a) You may obtain the forms required by the EAR from any U.S. Department of Commerce District Office; or in person or by telephone or facsimile from the following BIS offices:
(1) Outreach and Educational Services Division, U.S. Department of Commerce, 14th Street and Pennsylvania Ave., NW., Room H1099D, Washington, DC 20230, Tel: (202) 482-4811, Fax: (202) 482-2927, or
(2) Bureau of Industry and Security, Western Regional Office, U.S. Department of Commerce, 2302 Martin St., Suite 330, Irvine, CA 92612, Tel: (949) 660-0144, Fax: (949) 660-9347, or
(3) Bureau of Industry and Security, Western Regional Office, Northern California Branch, U.S. Department of Commerce, 160 W. Santa Clara Street, Suite 725, San Jose, CA 95113, Tel: (408) 998-8806, Fax: (408) 998-8677.
(b) For the convenience of foreign consignees and other foreign parties, certain BIS forms may be obtained at U.S. Embassies and Consulates throughout the world.
§ 748.3   Classification requests and advisory opinions.
(a) Introduction. You may ask BIS to provide you with the correct Export Control Classification Number (ECCN) down to the paragraph (or subparagraph) level, if appropriate. BIS will issue you a determination that each item identified in your classification request is either described by an ECCN in the Commerce Control List (CCL) in supplement no. 1 to part 774 of the EAR or not described by an ECCN and, therefore, an “EAR99” item. These classification determinations issued by BIS are not U.S. Government determinations that the items described therein are “subject to the EAR,” as this term is defined in § 734.3 of the EAR. Those who request commodity classifications and advisory opinions should have determined that the items at issue are not subject to the exclusive export control jurisdiction of one of the other U.S. Government agencies listed in § 734.3(b) of the EAR. If requested, for a given end-use, end-user, and/or destination, BIS will advise you whether a license is required, or likely to be granted, for a particular transaction. Note that these responses do not bind BIS to issuing a license in the future. This type of request, along with requests for guidance regarding other interpretations of the EAR, is commonly referred to as an “Advisory Opinion.” The encryption provisions in the EAR require the submission of a classification request in accordance with § 740.17(d) of the EAR in order for certain items to be eligible for export and reexport under License Exception ENC (see § 740.17 of the EAR) or to be released from “EI” controls (see §§ 740.17(b)(2) and 740.17(b)(3) of the EAR).
(b) Classification requests. Submit classification requests in accordance with the procedures in § 748.1.
(1) Each Classification Request must be limited to six items. Exceptions may be granted by BIS on a case-by-case basis for several related items if the relationship between the items is satisfactorily substantiated in the request. Classification requests must be supported by any descriptive literature, brochures, precise technical specifications or papers that describe the items in sufficient technical detail to enable classification by BIS submitted as PDF files attached to the SNAP-R submission unless a paper submission is authorized pursuant to § 748.1 of the EAR.
(2) When submitting a classification request, you must complete Blocks 1 through 5, 14, 22(a), (b), (c), (d), and (i), 24, and 25 on the application. You must provide a recommended classification in Block 22(a) and explain the basis for your recommendation based on the technical parameters specified in the appropriate ECCN in Block 24. If you are unable to determine a recommended classification for your item, include an explanation in Block 24, identifying the ambiguities or deficiencies that precluded you from making a recommended classification.
(3) BIS assigns each of its commodity classifications a Commodity Classification Automated Tracking System (CCATS) number. Neither the BIS classification nor the CCATS number may be relied upon or cited as evidence that the U.S. Government has determined that the items described in the commodity classification determination are subject to the EAR (See 15 CFR 734.3).
(c) Advisory opinions. Advisory opinion requests must be made in writing, and may be delivered to BIS by mail, by email, or through the BIS website. If delivering a request by mail, submit to the address listed in § 748.1(d)(2). Both your letter and envelope must be marked “Advisory Opinion.” If submitting by email, submit to RPD2@bis.doc.gov with the subject title “Advisory Opinion.” If submitting through the BIS website, see http://www.bis.doc.gov.
(1) Your submission must contain the following information if you are requesting guidance regarding interpretations of the EAR:
(i) The name, title, and telephone and facsimile numbers of the person to contact,
(ii) Your complete address comprised of street address, city, state, country, and postal code; and
(2) If you are requesting BIS to determine whether a license is required, or the licensing policy related to a particular end-use, end-user, and/or destination, in addition to the information required in § 748.3(c)(1) you must also include:
(i) All available information on the parties to the transaction and the proposed end-use or end-user,
(ii) The model number for each item, where appropriate,
(iii) The Export Control Classification Number, if known, for each item; and
(iv) Any descriptive literature, brochures, technical specifications or papers that describe the items in sufficient technical detail to enable BIS to verify the correct classification.
(3) Requests for Validated End-User authorization should be submitted in accordance with the provisions set forth in § 748.15 and supplement nos. 8 and 9 to this part.
(4) To request an addition or modification to or removal from the approved integrated circuit designers list in supplement no. 6 to part 740 of the EAR or the approved “OSAT” companies list in supplement no. 7 to part 740 of the EAR, see § 748.16 of this part.
(5) Advisory opinions are limited in scope to BIS's interpretation of EAR provisions. Advisory opinions differ from commodity classifications in that advisory opinions are not limited to the interpretation of provisions contained in the Commerce Control List. Advisory opinions may not be relied upon or cited as evidence that the U.S. Government has determined that the items described in the advisory opinion are not subject to the export control jurisdiction of another agency of the U.S. Government (See 15 CFR 734.3).
(d) Classification requests for encryption items. A classification request associated with encryption items transferred from the U.S. Munitions List consistent with Executive Order 13026 of November 15, 1996 (3 CFR, 1996 Comp., p. 228) and pursuant to the Presidential Memorandum of that date may be required to determine eligibility under License Exception ENC or for release from “EI” controls. Refer to supplement no. 6 to part 742 of the EAR for a complete list of technical information that is required for encryption classification requests. Refer to § 740.17(e)(3) and supplement no. 8 to part 742 of the EAR for information that is required to be submitted in a self-classification report. Refer to § 740.17(b) of the EAR for instructions regarding mass market encryption commodities and software, including self-classifications and classification requests. Refer to § 740.17 of the EAR for the provisions of License Exception ENC, including encryption self-classifications, classification requests and sales reporting. All classification requests, notifications and reports submitted to BIS pursuant to §§ 740.17 and 742.15(b) of the EAR will be reviewed by the ENC Encryption Request Coordinator, Ft. Meade, MD.
(e) Classification requests to confirm that a “part,” “component,” “accessory,” “attachment,” or “software” is not “specially designed” —(1) Scope. If you have a “part,” “component,” “accessory,” “attachment,” or “software” that is “specially designed” on the basis of paragraph (a)(1) or (2) of the “specially designed” definition in § 772.1 of the EAR, you may submit a request in accordance with the procedures in § 748.1 to confirm that the item is not “specially designed” provided you meet the following criteria:
(i) The “part,” “component,” “accessory,” “attachment,” or “software” does not meet the criteria of exclusion paragraph (b)(3) of the “specially designed” definition, but would meet the criteria if the minor changes in form or fit were determined to be insignificant by the U.S. Government.
(ii) The performance capabilities of the “part,” “component,” “accessory,” “attachment,” or “software” are the same as those of a “part,” “component,” “accessory,” “attachment,” or “software” that would meet the criteria of exclusion paragraph (b)(3) of the definition of “specially designed” in § 772.1 of the EAR.
(2) Information to be provided. Applicants wishing to submit a CCATS requesting confirmation that a “part,” “component,” “accessory,” “attachment,” or “software” is not “specially designed” must submit classification requests in accordance with the procedures in § 748.1 and general provisions regarding submitting classification requests in § 748.3(b). In addition, applicants must submit additional information identified in this paragraph (e)(2).
(i) The classification request must indicate in Block 24 or in a separate PDF attachment included with the CCATS submission that the “part,” “component,” “accessory,” “attachment” or “software” would meet the criteria in paragraph (e)(1)(i) and (ii) of this section;
(ii) A detailed explanation must be provided regarding all changes in form and fit; and
(iii) A rationale must be provided that explains why such changes in form and fit should be treated as minor or insignificant in terms of their role in the performance capabilities of the enumerated item.
(3) U.S. Government Review. Commodity classification requests submitted pursuant to § 748.3(e) are reviewed by the Departments of Commerce, State and Defense. A consensus determination is required to confirm that a “part,” “component,” “accessory,” “attachment,” or “software” is not “specially designed” on the basis of this paragraph. The interagency review process will ensure U.S. national security and foreign policy interests are evaluated prior to any confirmation pursuant to § 748.3(e). The interagency review will consider on a case-by-case basis whether a particular “part,” “component,” “accessory,” “attachment,” or “software” is “specially designed” taking into account all the following:
(i) The insignificance of the changes in form and fit;
(ii) The overall role of the “part,” “component,” “accessory,” “attachment,” or “software” in the performance capabilities of the enumerated or otherwise described item that it is used in or with;
(iii) How substantively common it is to the other “part,” “component,” “accessory,” “attachment,” or “software” that would meet the paragraph (b)(3) criteria;
(iv) Whether such a confirmation would be consistent with U.S. Government multilateral export control regime commitments; and
(v) Any other criteria that may be relevant in determining whether the “part,” “component,” “accessory,” “attachment,” or “software” is “specially designed,” including an evaluation of how such a confirmation may affect U.S. national security and foreign policy interests.
(4) CCATS response. The BIS response to the CCATS request will reflect the interagency consensus determination and the response will be made in accordance with the procedures in §§ 748.1 and 748.3(b). In addition, the BIS response will indicate one of the following:
(i) The “part,” “component,” “accessory,” “attachment,” or “software” is not “specially designed” on the basis of being within the scope of paragraph (b)(3) because the changes in form and fit have been determined by the U.S. Government to be minor or insignificant. In such cases, the new classification, which may be EAR99 or in another ECCN entry that does not use “specially designed,” will be provided as part of the BIS response;”
(ii) The request under § 748.3(e) has been denied and the “part,” “component,” “accessory,” “attachment,” or “software” continues to be classified under a “specially designed” ‘catch-all’ (see the definition of “specially designed” in § 772.1 of the EAR). The response will also include a determination regarding where the “specially designed” “part,” “component,” “accessory,” “attachment,” or “software” is classified on the CCL; or
(iii) Returned without action (RWA) because insufficient information was provided or information was not provided in a timely fashion. These requests will be reviewed closely, and they will likely require additional follow up questions of applicants, so responding to such requests in a timely fashion will be an important part of the process to ensure such requests are considered by the U.S. Government.
Although these requests for confirmation that an item is not “specially designed” are also reviewed by the Departments of State and Defense, similar to § 748.3(b)(3), the public is reminded that neither the BIS classification nor the CCATS number may be relied upon or cited as evidence that the U.S. Government has determined that the “parts,” “components,” “accessories,” “attachments” and “software” described in the commodity classification determination or a release made from “specially designed” pursuant to § 748.3(e) are subject to the EAR (see § 734.3 of the EAR).
(f) Classification requests for artificial intelligence models. Classification requests may be submitted to confirm that technology is not controlled under ECCN 4E091 because the artificial intelligence model has been trained utilizing fewer computational 'operations' than the number needed to train a model as capable, according to an average of widely used benchmarks, as the most advanced artificial intelligence model that has been “published” as defined in § 734.7(a) of the EAR. Refer to the technical notes to ECCN 4E091 for instructions regarding self-classifications of artificial intelligence models.
§ 748.4   Basic guidance related to applying for a license.
(a) License applicant —(1) Export transactions. Only a person in the United States may apply for a license to export items from the United States. The applicant must be the exporter, who is the U.S. principal party in interest with the authority to determine and control the sending of items out of the United States, except for Encryption License Arrangements (ELA) (see § 750.7(d) of the EAR). See definition of “exporter” in part 772 of the EAR.
(2) Routed export transactions. The U.S. principal party in interest or the duly authorized U.S. agent of the foreign principal party in interest may apply for a license to export items from the United States. Prior to submitting an application, the agent that applies for a license on behalf of the foreign principal party in interest must obtain a power of attorney or other written authorization from the foreign principal party in interest. See § 758.3(b) and (d) of the EAR.
(3) Reexport transactions. The U.S. or foreign principal party in interest, or the duly authorized U.S. agent of the foreign principal party in interest, may apply for a license to reexport controlled items from one country to another. Prior to submitting an application, an agent that applies for a license on behalf of a foreign principal party in interest must obtain a power-of-attorney or other written authorization from the foreign principal party in interest, unless there is a preexisting relationship by ownership, control, position of responsibility or affiliation. See power-of-attorney requirements in paragraph (b)(2) of this section.
(b) Disclosure of parties on license applications and the power of attorney —(1) Disclosure of parties. License applicants must disclose the names and addresses of all parties to a transaction. When the applicant is the U.S. agent of the foreign principal party in interest, the applicant must disclose the fact of the agency relationship, and the name and address of the agent's principal. If there is any doubt about which persons should be named as parties to the transaction, the applicant should disclose the names of all such persons and the functions to be performed by each in Block 24 of the application. Note that when the foreign principal party in interest is the ultimate consignee or end-user, the name and address need not be repeated in Block 24. See “Parties to the transaction” in § 748.5.
(2) Power of attorney or other written authorization —(i) Requirement. An agent must obtain a power of attorney or other written authorization from the principal party in interest, unless there is a preexisting relationship by ownership, control, position of responsibility or affiliation, prior to preparing or submitting an application for a license, when acting as either:
(A) An agent, applicant, licensee and exporter for a foreign principal party in interest in a routed transaction; or
(B) An agent who prepares an application for export on behalf of a U.S. principal party in interest who is the actual applicant, licensee and exporter in an export transaction.
(ii) Application. Block 7 of the application (documents on file with applicant) must be marked “other” and Block 24 (Additional information) must be marked “748.4(b)(2)” to indicate that the power of attorney or other written authorization is on file with the agent. See § 758.3(d) for power of attorney requirement, and see also part 762 of the EAR for recordkeeping requirements.
(c) Prohibited from applying for a license. No person subject to a denial order based on a conviction for a violation of any statute specified at 50 U.S.C. 4819(e)(1)(B) may apply for any license for a period up to 10 years from the date of the conviction. The duration of the prohibition shall be included as a term of the denial order. See § 766.25 of the EAR.
(d) Prior action on a shipment. If you have obtained a license without disclosure of the facts described in this section, the license will be deemed to have been obtained without disclosure of all facts material to the granting of the license and the license so obtained will be deemed void. See part 764 of the EAR for other sanctions that may result in the event a violation occurs.
(1) Licenses for items subject to detention or seizure. If you submit a license application for items that you know have been detained or seized by the Office of Export Enforcement or by the U.S. Customs Service, you must disclose this fact to BIS when you submit your license application.
(2) Licenses for items previously exported. You may not submit a license application to BIS covering a shipment that is already laden aboard the exporting carrier, exported or reexported. If such export or reexport should not have been made without first securing a license authorizing the shipment, you must send a letter of explanation to the Office of Export Enforcement, U.S. Department of Commerce, 14th and Pennsylvania Avenue, N.W., H4520, Washington, D.C., 20230. The letter must state why a license was not obtained and disclose all facts concerning the shipment that would normally have been disclosed on the license application. You will be informed of any action and furnished any instructions by the Office of Export Enforcement.
(e) Multiple shipments. Your license application need not be limited to a single shipment, but may represent a reasonable estimate of items to be shipped throughout the validity of the license. Do not wait until the license you are using expires before submitting a new application. You may submit a new application prior to the expiration of your current license in order to ensure uninterrupted shipping.
(f) Second application. You may not submit a second license application covering the same proposed transaction while the first is pending action by BIS.
(g) Resubmission. If a license application is returned without action to you by BIS or your application represents a transaction previously denied by BIS, and you want to resubmit the license application, a new license application must be completed in accordance with the instructions contained in supplement no. 1 to part 748. Cite the Application Control Number on your original application in Block 24 on the new license application.
(h) Emergency processing. Applicants may request emergency processing of license applications by contacting the Outreach and Educational Services Division of the Office of Exporter Services by telephone on (202) 482-4811 or by facsimile on (202) 482-2927. Refer to the Application Control Number when making emergency processing requests. BIS will expedite its evaluation, and attempt to expedite the evaluations of other government agencies, of a license application when, in its sole judgement, the circumstances justify emergency processing. See § 750.7(g) of the EAR for the limit on the validity period of emergency licenses.
§ 748.5   Parties to the transaction.
The following parties may be entered on the application. The definitions, which also appear in part 772 of the EAR, are set out here for your convenience to assist you in filling out your application correctly.
(a) Applicant. The person who applies for an export or reexport license, and who has the authority of a principal party in interest to determine and control the export or reexport of items. See § 748.4(a) and definition of “exporter” in part 772 of the EAR.
(b) Other party authorized to receive license. The person authorized by the applicant to receive the license. If a person and address is listed in Block 15 of the application, the Bureau of Industry and Security will send the license to that person instead of the applicant. Designation of another party to receive the license does not alter the responsibilities of the applicant, licensee or exporter.
(c) Purchaser. The person abroad who has entered into the transaction to purchase an item for delivery to the ultimate consignee. In most cases, the purchaser is not a bank, forwarding agent, or intermediary. The purchaser and ultimate consignee may be the same entity.
(d) Intermediate consignee. The person that acts as an agent for a principal party in interest and takes possession of the items for the purpose of effecting delivery of the items to the ultimate consignee. The intermediate consignee may be a bank, forwarding agent, or other person who acts as an agent for a principal party in interest.
(e) Ultimate consignee. The principal party in interest located abroad who receives the exported or reexported items. The ultimate consignee is not a forwarding agent or other intermediary, but may be the end-user.
(f) End-user. The person abroad that receives and ultimately uses the exported or reexported items. The end-user is not a forwarding agent or intermediary, but may be the purchaser or ultimate consignee.
§ 748.6   General instructions for license applications.
(a) Instructions. (1) General instructions for filling out license applications are in supplement no. 1 to this part.
(2) License applications may require additional information due to the type of items requested in the application or the characteristics of the transaction. Special instructions for applications requiring such additional information are listed in § 748.8 and described fully in supplement no. 2 to this part.
(3) License applications may also require additional information for evaluation of the parties in the transaction. Special instructions for applications requiring such additional information are listed in §§ 748.9 through 748.13.
(b) Application Control Number. Each application has an application control number.The Application Control Number, consisting of a letter followed by six digits, is for use by BIS when processing applications, and by applicants when communicating with BIS concerning pending applications. This number is used for tracking purposes within the U.S. Government. The Application Control Number is not a license number.
(c) Approval or denial in entirety. License applications may be approved in whole or in part, denied in whole or in part, or returned without action. However, you may specifically request that your license application be considered as a whole and either approved or denied in its entirety.
(d) Combining items on license applications. Any items may be combined on a single application, however, if the items differ dramatically (e.g., computers and shotguns) the number of BIS offices to which a license application may be referred for review may increase significantly. Accordingly, it is recommended that you limit items on each license application to those that are similar and/or related.
(e) Attachments to applications. Documents required to be submitted with applications filed via SNAP-R must be submitted as PDF files using the procedures described in SNAP-R. Documents required to be submitted with paper applications must bear the application control number to which they relate and, if applicable, be stapled to the paper form. Where necessary, BIS may require you to submit additional information beyond that stated in the EAR confirming or amplifying information contained in your license application.
(f) Changes in facts. Answers to all items on the license application will be deemed to be continuing representations of the existing facts or circumstances. Any material or substantive change in the terms of the order, or in the facts relating to the transaction, must be promptly reported to BIS, whether a license has been granted or the license application is still under consideration. If a license has been granted and such changes are not excepted in § 750.7(c) of the EAR, they must be reported immediately to BIS, even though shipments against the license may be partially or wholly completed, during the validity period of the license.
(g) Request for extended license validity period. An extended validity period will generally be granted if your transaction is related to a multi-year project, when production lead time will not permit export or reexport during the normal validity period or for other similar circumstances. A continuing requirement to supply spare or replacement parts will not normally justify an extended validity period. To request an extended validity period, include justification for your request in Block 24 on the application.
§ 748.7   Registering for electronic submission of license applications and related documents.
(a) Scope. This section describes the procedures for registering to submit electronic documents to BIS. The procedures in this section apply to submission of export and reexport license applications, classification requests, and License Exception AGR notifications.
(b) Registration and use of BIS's Simplified Network Applications System—Redesign (SNAP-R). Parties wishing to submit electronically must log on to https://snapr.bis.doc.gov/registration to register. Upon initial registration, the party (the filing entity) will have to supply the name of the entity that will be submitting documents electronically and its address and the name, telephone number, facsimile number and e-mail address of the person who will act as account administrator. The person will be required to certify that the information so supplied is correct and complete, that the person has authority to register the entity that will be making electronic submissions and that the person has authority to act as an account administrator for that entity.
(c) Role of account administrator. The account administrator is able to add and remove individual users to and from the account of the filing entity for which it is the account administrator. The account administrator can also make individual users account administrators and can terminate an individual user's administrator status. The account administrator can deactivate the account of an individual user and reactivate the account of a previously deactivated individual user. The account administrator can update the filing entity's identifying information such as name and address and any individual user's identifying information such as name, telephone number, facsimile number and e-mail address. The account administrator can reset individual users' passwords.
(d) Role of individual users. An individual user may submit to BIS export and reexport license applications, classification requests, and License Exception AGR notifications.
(e) Effect of submission to BIS. BIS may refuse to accept an electronic submission if it has reason to believe that the individual user making the submission lacks authority to do so. However, BIS is not obligated to conduct any checks to determine whether an individual user has the necessary authority and will generally treat users as acting within their authority. Acting through their account administrators, parties have the ability to remove an individual user when that individual user is no longer authorized to make submissions on behalf of that party to BIS and should do so promptly.
(f) Requirement to keep identifying information accurate and current —(1) Filing entities. Filing entities must, through their account administrators, update their identifying information such as name, address and telephone number in their SNAP-R account as necessary to keep that information accurate and current.
(2) Individual users. Individual users must, through their account administrators, update their identifying information such as name, telephone number, facsimile number and e-mail address in their SNAP-R accounts as necessary to keep that information accurate and current.
§ 748.8   Unique application and submission requirements.
In addition to the instructions contained in supplement no. 1 to this part 748, you must also ensure that the additional requirements for certain items or types of transactions described in this section are addressed in your license application. See supplement no. 2 to this part 748 if your application involves:
(a) Chemicals, medicinals, and pharmaceuticals.
(b) Communications intercepting devices.
(c) Digital computers, telecommunications, and related equipment.
(d) U.S. person support activities that require a license under § 744.6.
(e) Intransit shipments through the United States.
(f) Intransit shipments outside of the United States.
(g) Nuclear Nonproliferation items and end-uses.
(h) Numerical control devices, motion control boards, numerically controlled machine tools, dimensional inspection machines, direct numerical control systems, specially designed assemblies and specially designed software.
(i) Parts, components, and materials incorporated abroad into foreign-made products.
(j) Ship stores, plane stores, supplies, and equipment.
(k) Regional stability controlled items.
(l) Reexports.
(m) Robots.
(n) Short Supply controlled items.
(o) Technology.
(p) Temporary exports or reexports.
(q) Exports of chemicals controlled for CW reasons by ECCN 1C350 to countries not listed in supplement no. 2 to part 745 of the EAR.
(r) Encryption classification requests.
(s) Exports of firearms and certain shotguns temporarily in the United States.
(t) “600 Series Major Defense Equipment.”
(u) Aircraft and vessels on temporary sojourn.
(v) In-country transfers.
(w) License Exception STA eligibility requests for “600 series” end items.
(x) License application for a transaction involving a 9x515 and “600 series” item that is equivalent to a transaction previously approved under an ITAR license or other approval.
(y) Satellite exports.
(z) Firearms.
§ 748.9   Support documents for evaluation of foreign parties in license applications and/or for promoting compliance with license requirements.
(a) Scope. License applicants may be required to obtain support documents concerning the foreign parties and the disposition of the items intended for export, reexport, or transfer (in-country). Some support documents are issued by foreign governments, while other support documents are signed and issued by the purchaser and/or ultimate consignee. For support documents issued by foreign governments, any foreign legal restrictions or obligations exercised by the government issuing the support document are in addition to the conditions and restrictions placed on the transaction by BIS. However, the laws and regulations of the United States are in no way modified, changed, or superseded by the issuance of a support document by a foreign government.
(b) Requirements to obtain support documents for license applications. Unless an exception in paragraph (c) of this section applies, a support document is required for certain license applications for:
(1) The People's Republic of China (PRC) other than the Hong Kong Special Administrative Region (see §§ 748.10 and 748.11(a)(2));
(2) “600 Series Major Defense Equipment” (see § 748.11);
(3) Firearms and related commodities to member countries of the Organization of American States (see § 748.12); and
(4) The Hong Kong Special Administrative Region of the People's Republic of China ( see § 748.13).
On a case-by-case basis, BIS may require license applicants to obtain a support document for any license application.
For End-Use Certificate requirements under the Chemical Weapons Convention, see § 745.2 of the EAR.
(c) Exceptions to requirements to obtain support documents. (1) Even if a support document requirement is imposed by paragraph (b) of this section, no support document is required for any of the following situations:
(i) The ultimate consignee or purchaser is an “Agency of the United States Government” (see § 740.11(b)(1) for definition). If either the ultimate consignee or purchaser is not an agency of the United States government, however, a support document may still be required from the non-U.S. governmental party;
(ii) The ultimate consignee or purchaser is a foreign government(s) or foreign government agency(ies), other than the government of the People's Republic of China. To determine whether the parties in a transaction meet the definition of “foreign government agency,” refer to the definition contained in part 772 of the EAR. If either the ultimate consignee or purchaser is not a foreign government or foreign government agency, however, a support document may still be required from the nongovernmental party;
(iii) The license application is filed by, or on behalf of, a relief agency registered with the Advisory Committee on Voluntary Foreign Aid, U.S. Agency for International Development, for export to a member agency in the foreign country;
(iv) The license application is submitted for commodities for temporary exhibit, demonstration, or testing purposes;
(v) The license application is submitted for commodities controlled for short supply reasons (see part 754 of the EAR);
(vi) [Reserved]
(vii) The license application is submitted for software or technology; or
(viii) The license application is submitted for encryption commodities controlled under ECCN 5A002, 5A004 or 5B002.
(2) BIS will consider granting an exception to the requirement for obtaining a support document where the requirements cannot be met due to circumstances beyond the applicant's control. An exception will not be granted contrary to the objectives of the U.S. export control laws and regulations. Refer to § 748.13 of this part for specific instructions on procedures for requesting an exception.
(d) Content of support documents. In addition to specific requirements described for each support document in §§ 748.10, 748.11, and 748.12, the use and submission of support documents must comply with the following requirements.
(1) English translation. All abbreviations, coded terms, or other expressions on support documents having special significance in the trade or to the parties to the transaction must be explained on an attachment to the document. Documents in a language other than English must be accompanied by an attachment giving an accurate English translation, either made by a translating service or certified by the applicant to be correct. Explanations or translations should be provided on a separate piece of paper, and not entered on the support documents themselves.
(2) Responsibility for full disclosure. (i) The license application covering the transaction discloses all facts pertaining to the transaction. Information contained in a support document obtained after submission of a license application and not submitted to BIS as part of the application cannot be construed as extending or expanding or otherwise modifying the specific information supplied in a license application or license issued by BIS. The authorizations contained in the resulting license are not extended by information contained in the support document regarding reexport from the country of destination, transfer (in-country), or any other facts relative to the transaction that are not reported on the license application.
(ii) Misrepresentations, either through failure to disclose facts, concealing a material fact, or furnishing false information, may subject responsible parties to administrative or criminal action by BIS.
(iii) In obtaining the required support document, the applicant is not relieved of the responsibility for full disclosure of any other information concerning the ultimate destination, end use, or end user of which the applicant knows, even if inconsistent with the representations made in the applicable support document. The applicant is responsible for promptly notifying BIS of any change in the facts contained in the support document that comes to the applicant's attention.
(e) Procedures for using support document with license application —(1) Timing for obtaining support document. When a support document is required for a license application in §§ 748.10, 748.11, and 748.12, license applicants may submit the application prior to receipt of a copy of the support document, unless BIS informs the applicant that the support document must be submitted with the application. However, if the license is granted, items authorized on the license may not be exported, reexported, or transferred (in-country) until the license holder obtains a copy of the support document. The documents issued by the Government of the Hong Kong Special Administrative region that are required pursuant to § 748.13 are not used to evaluate license applications. They must be obtained before shipment and need not be obtained before submitting a license application.
(2) Information necessary for license application. When a support document is required for a license application, applicants should mark the appropriate box in Block 7, regardless of whether a copy of the support document is on file with the applicant at the time of submission.
(f) Recordkeeping provisions. License applicants must retain on file the original or a copy of any support document issued in support of a license application submitted to BIS. All recordkeeping provisions in part 762 of the EAR apply to this requirement.
(g) Effect on license application review. BIS reserves the right in all respects to determine to what extent any license will be issued covering items for which a support document has been issued. If a support document was issued by a foreign government, BIS will not seek or undertake to give consideration to recommendations from the foreign government as to the action to be taken on a license application. A support document will be only one of the factors upon which BIS will base its licensing action, since end uses and other considerations are important factors in the decision making process.
(h) Grace period for complying with requirements following regulatory change. (1) Whenever the requirement for a PRC End-User Statement, Statement by Ultimate Consignee or Purchaser, or Firearms Convention Import Certificate 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 .
(2) License applications filed during the 45-day grace period may require the submission of evidence available to the applicant that will support representations concerning the ultimate consignee, ultimate destination, and end use, such as copies of the order, letters of credit, correspondence between the applicant and ultimate consignee, or other documents received from the ultimate consignee. If such evidence is required, applicants must also identify the regulatory change (including its effective date) that justifies exercise of the 45-day grace period.
§ 748.10   People's Republic of China (PRC) End-User Statement.
(a) Requirement to obtain document. Unless the provisions of § 748.9(c) or § 748.11(a)(2) apply, a PRC End-User Statement is required for license applications including any of the following commodities destined for the PRC:
(1) Cameras classified under ECCN 6A003 requiring a license to the PRC for any reason, and the value of such cameras exceeds $5,000;
(2) Computers requiring a license to the PRC for any reason, regardless of the value of the computers; or
(3) Any commodity(ies) requiring a license to the PRC for any reason on the Commerce Control List, and the total value of such commodity(ies) requiring a license exceeds $50,000.
If an order meets the commodity(ies) and value requirements listed above, then a PRC End-User Statement is required. An order may not be split into multiple license applications solely to avoid a requirement to obtain a PRC End-User Statement.
If an order includes both items that do require a license to the PRC and items that do not require a license to the PRC, the value of the latter items should not be factored into the value thresholds described above. Also, if a license application includes 6A003 cameras and other items requiring a license to the PRC, then the value of the 6A003 cameras should be factored into the value threshold described in paragraph (a)(3).
See § 748.11(a)(2) for permissive use of a Statement by Ultimate Consignee and Purchaser in place of a PRC End-User Statement.
On a case-by-case basis, BIS may require license applicants to obtain a PRC End-User Statement for a license application that would not otherwise require a PRC End-User Statement under the requirements of paragraph (a) of this section.
This requirement to obtain an end-user statement from the PRC Ministry of Commerce does not apply to transactions destined to the PRC Special Administrative Region of Hong Kong.
(b) Obtaining the document. (1) If a PRC End-User Statement is required for any reason under paragraph (a) of this section, then applicants must request that the importer obtain a PRC End-User Statement for all items on a license application that require a license to the PRC for any reason listed on the CCL.
(2) PRC End-User Statements are issued and administered by the Ministry of Commerce; Department of Mechanic, Electronic and High Technology Industries; Export Control Division I; Chang An Jie No. 2; Beijing 100731 China; Phone: (86)(10) 6519 7366 or 6519 7390; Fax: (86)(10) 6519 7543; http://zzyhzm.mofcom.gov.cn/ . See the BIS Web site ( www.bis.doc.gov ) for the current contact information.
(c) Content of the document. (1) The license applicant's name must appear on the PRC End-User Statement submitted to BIS as the applicant, supplier, or order party.
(2) License applicants must ensure that the following information is included on the PRC End-User Statement signed by an official of the Department of Mechanic, Electronic and High Technology Industries, Export Control Division I, of the PRC Ministry of Commerce (MOFCOM), with MOFCOM's seal affixed to it:
(i) Title of contract and contract number (optional);
(ii) Names of importer and exporter;
(iii) End user and end use;
(iv) Description of the commodity, quantity and dollar value; and
(v) Signature of the importer and date.
The license applicant should furnish the consignee with the commodity description contained in the CCL to be used in applying for the PRC End-User Statement. It is also advisable to furnish a manufacturer's catalog, brochure, or technical specifications if the commodity is new.
(d) Procedures for using document with license application —(1) Using a PRC End-User Statement for multiple applications. A PRC End-User Statement may cover more than one purchase order and more than one item. Where the Statement includes items for which more than one license application will be submitted, the applicant should ensure that the total quantities on the license application(s) do not exceed the total quantities shown on the PRC End-User Statement.
(2) Alterations. After a PRC End-User Statement is issued by the Government of the People's Republic of China, no corrections, additions, or alterations may be made on the certificate by any person. Any necessary corrections, additions, or alterations should be noted by the applicant in a separate statement on file with the applicant.
(3) Validity period. A PRC End-User Statement is valid until the quantities of items identified on the Statement have been shipped.
§ 748.11   Statement by Ultimate Consignee and Purchaser.
(a) Requirement to obtain document —(1) General requirement for all countries excluding the People's Republic of China (PRC). Unless an exception in § 748.9(c) or paragraph (a)(3) of this section applies, a Statement by Ultimate Consignee and Purchaser is required if the license application includes “600 Series Major Defense Equipment” (600 series MDE) requiring a license for any reason on the Commerce Control List and such items are destined for a country other than the PRC.
(2) Permissive substitute of Statement by Ultimate Consignee and Purchaser in place of PRC End-User Statement. The requirement to obtain a support document for license applications involving the PRC is generally determined by § 748.10(a) of the EAR. However, a Statement by Ultimate Consignee and Purchaser may be substituted in place of a PRC End-User Statement when the commodities to be exported ( i.e., replacement parts and components) are valued at $75,000 or less and are for servicing previously exported commodities.
(3) Exception to general requirement. The general requirement described in paragraph (a)(1) of this section does not apply if the applicant is the same person as the ultimate consignee, provided the required statements are contained in Block 24 on the license application. This exemption does not apply, however, where the applicant and consignee are separate entities, such as parent and subsidiary, or affiliated or associated firms.
An order may not be split into multiple license applications solely to avoid a requirement to obtain a Statement by Ultimate Consignee and Purchaser.
On a case-by-case basis, BIS may require license applicants to obtain a Statement by Ultimate Consignee and Purchaser for a license application that would not otherwise require a Statement by Ultimate Consignee and Purchaser under the requirements of paragraph (a) of this section.
(b) Obtaining the document. (1) The ultimate consignee and purchaser must complete either a statement on company letterhead, or Form BIS-711, Statement by Ultimate Consignee and Purchaser, as described in paragraph (c) of this section. Unless otherwise specified, any reference in this section to “Statement by Ultimate Consignee and Purchaser” applies to both the statement on company letterhead and to Form BIS-711.
(2) If the consignee and purchaser elect to complete the statement on letterhead and both the ultimate consignee and purchaser are the same entity, only one statement is necessary.
(3) If the ultimate consignee and purchaser are separate entities, separate statements must be prepared and signed.
(4) If the ultimate consignee and purchaser elect to complete Form BIS-711, only one Form BIS-711 (containing the signatures of the ultimate consignee and purchaser) need be completed.
(5) Whether the ultimate consignee and purchaser sign a written statement or complete Form BIS-711, the following constraints apply:
(i) Responsible officials representing the ultimate consignee or purchaser must sign the statement. “Responsible official” is defined as someone with personal knowledge of the information included in the statement, and authority to bind the ultimate consignee or purchaser for whom they sign, and who has the power and authority to control the use and disposition of the licensed items.
(ii) The authority to sign the statement may not be delegated to any person (agent, employee, or other) whose authority to sign is not inherent in his or her official position with the ultimate consignee or purchaser for whom he or she signs. The signing official may be located in the United States or in a foreign country. The official title of the person signing the statement must also be included.
(iii) The consignee and/or purchaser must submit information that is true and correct to the best of their knowledge and must promptly send a new statement to the applicant if changes in the facts or intentions contained in their statement(s) occur after the statement(s) have been forwarded to the applicant. Once a statement has been signed, no corrections, additions, or alterations may be made. If a signed statement is incomplete or incorrect in any respect, a new statement must be prepared, signed and forwarded to the applicant.
(c) Content of the document. See supplement no. 3 to this part for the information necessary to complete a statement on company letterhead or on Form BIS-711.
(d) Procedures for using document with license application —(1) Validity period. (i) If a Statement by Ultimate Consignee and Purchaser is obtained prior to submission of the license application and the Statement is required to support one or more license applications, an applicant must submit the first license application within one year from the date the statement was signed.
(ii) All subsequent license applications supported by the same Statement by Ultimate Consignee and Purchaser must be submitted within four years of signature by the consignee or purchaser, whichever was last.
(2) [Reserved]
§ 748.12   Firearms import certificate or import permit.
License applications for certain firearms and related commodities require support documents in accordance with this section.
(a) Requirement to obtain and submit documentation. Unless an exception in § 748.9(c) applies, an import certificate or permit is required for license applications for firearms and related commodities, regardless of value, if required by the importing country. For OAS member states, this requirement is consistent with the OAS Model Regulations described in § 742.17 of the EAR. The exporter or reexporter must obtain and submit with the license application the original or a copy of the import certificate or permit before applying for an export or reexport license in situations in which an import certificate or permit is required by the importing country.
(1) Items subject to requirement. Firearms and related commodities are those commodities controlled under 0x5zz ECCNs.
(2) Countries subject to requirement. (i) OAS member countries include: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, Venezuela, and any member country that has acceded in accordance with Chapter III of the Charter of the Organization of American States.
(ii) All other countries that require an import certificate or permit.
(3) Equivalent official document in place of an import certificate or permit. For those countries that have not yet established or implemented an import certificate procedure, BIS will accept an equivalent official document ( e.g., import license or letter of authorization) issued by the government of the importing country as supporting documentation for the export of commodities detailed under paragraph (a)(1) of this section.
(b) Obtaining the document. (1) Applicants must request that the importer ( e.g., ultimate consignee or purchaser) obtain the import certificate, permit, or an equivalent official document from the government of the importing country, and that it be issued covering the quantities and types of firearms and related items that the applicant intends to export. Upon receipt of this document or a certified copy, the importer must provide the original or a certified copy to the license applicant.
(2) If the government of the importing country will not issue such document, the applicant must supply the information described in paragraphs (c)(1) and (c)(6) through (c)(8) of this section on company letterhead.
(c) Content of the document. The document must contain the following information:
(1) Applicant's name and address. The applicant may be either the exporter, supplier, or order party.
(2) Import Certificate Identifier/Number.
(3) Name of the country issuing the certificate or unique country code.
(4) Date the document was issued, in international date format ( e.g., 24/12/12 for 24 December 2012, or 3/1/99 for 3 January 1999).
(5) Name of the agency issuing the certificate, address, telephone and facsimile numbers, signing officer name, and signature.
(6) Name of the importer, address, telephone and facsimile numbers, country of residence, representative's name if commercial or government body, citizenship, and signature.
(7) Name of the end user(s), if known and different from the importer, address, telephone and facsimile numbers, country of residence, representative's name if commercial (authorized distributor or reseller) or government body, citizenship, and signature. Note that BIS does not require the identification of each end user when the firearms and related commodities will be resold by a distributor or reseller if unknown at the time of export.
(8) Description of the commodities approved for import including a technical description and total quantity of firearms, parts and components, ammunition and parts.
You must furnish the consignee with a detailed technical description of each commodity to be given to the government for its use in issuing the document. For example, for shotguns, provide the type, barrel length, overall length, number of shots, the manufacturer's name, and the country of manufacture. For ammunition, provide the caliber, velocity and force, type of bullet, manufacturer's name and country of manufacture.
(9) Expiration date of the document in international date format ( e.g., 24/12/12) or the date the items must be imported, whichever is earlier.
(10) Name of the country of export ( i.e., United States).
(11) Additional information. Certain countries may require the tariff classification number, by class, under the Brussels Convention (Harmonized Tariff Code) or the specific technical description of a commodity. For example, shotguns may need to be described in barrel length, overall length, number of shots, manufacturer's name and country of manufacture. The technical description is not the Export Control Classification Number (ECCN).
(d) Procedures for using document with license application —(1) Information necessary for license application. The license application must include the same commodities as those listed on the document.
(2) Alterations. After the document is used to support the issuance of a license, no corrections, additions, or alterations may be made on the same document by any person. Any necessary corrections, additions, or alterations should be noted by the applicant in a separate statement on file with the applicant.
(3) Validity period. Documents issued by the importing country will be valid until the expiration date on the documents themselves.
Applicants for license applications for exports and reexports must submit an import certificate, permit, or comparable document with the license application. All BIS licenses for ECCNs 0A501, 0A505, 0A506, 0A507, 0A508, and 0A509 commodities will include a standard rider that requires that the applicant/exporter must have a current FC Import Certificate on file prior to export. The text of the standard rider will generally be as follows: “A current, complete, accurate and valid Firearms Convention (FC) Import Certificate (or equivalent official document) shall be obtained, if required by the government of the importing country, from the Ultimate Consignee and maintained in the exporter's file prior to any export of the item(s) listed on this license. A copy shall be provided to the U.S. Government upon request. (Refer to § 742.17(b) of the EAR for guidance.)”
(e) Requirement to obtain an import certificate or permit for other than OAS member states. If the country to which firearms, parts, components, accessories, and attachments controlled under ECCN 0A501, or ammunition controlled under ECCN 0A505, are being exported or reexported requires that a government-issued certificate or permit be obtained prior to importing the commodity, the exporter or reexporter must obtain and retain on file the original or a copy of that certificate or permit before applying for an export or reexport license unless:
(1) A license is not required for the export or reexport; or
(2) The exporter is required to obtain an import or end-user certificate or other equivalent official document pursuant to paragraphs (a) thorough (d) of this section and has, in fact, complied with that requirement.
(3)(i) The number or other identifying information of the import certificate or permit must be stated on the license application.
(ii) If the country to which the commodities are being exported does not require an import certificate or permit for firearms imports, that fact must be noted on any license application for ECCN 0A501 or 0A505 commodities.
Applicants for license applications for exports and reexports to countries requiring that a government-issued certificate or permit be obtained prior to importing the commodity must have the initial government-issued certificate or permit prior to any export. All BIS licenses for ECCNs 0A501 and 0A505 commodities will include a standard rider that requires that the applicant/exporter have a government-issued certificate or permit on file prior to export. Note that while government-issued certificates or permits are usually valid for 1 year, BIS licenses are valid for 4 years. The text of the standard rider will generally be as follows: “A current, complete, accurate and valid Firearms Convention (FC) Import Certificate (or equivalent official document) shall be obtained, if required by the government of the importing country, from the Ultimate Consignee and maintained in the Exporter's file prior to any export of the item(s) listed on this license. A copy shall be provided to the U.S. Government upon request. (Refer to § 742.17(b) of the EAR for guidance.)”
Obtaining a BIS Statement by Ultimate Consignee and Purchaser pursuant to § 748.11 does not exempt the exporter or reexporter from the requirement to obtain a certification pursuant to paragraph (a) of this section because that statement is not issued by a government.
§ 748.13   Hong Kong import and export licenses.
(a) Requirement to obtain the document —(1) Exports and reexports to Hong Kong. An exporter or reexporter must obtain the documents described in paragraph (a)(1)(i) or (a)(1)(ii) of this section before using a license issued by BIS to export or reexport to Hong Kong any item subject to the EAR and controlled on the CCL for NS, MT, NP column 1, or CB reasons. Collectively, the documents issued by Hong Kong must cover all of the items to be exported or reexported pursuant to a license.
(i) A copy of an import license issued to the Hong Kong importer by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers the items to be exported or reexported pursuant to that BIS license for which a Hong Kong import license is required and that is valid on the date of the export or reexport that is subject to the EAR; or
(ii) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no import license is required to import into Hong Kong the item(s) to be exported or reexported to Hong Kong. The statement may have been issued directly to the Hong Kong importer or it may be a written statement available to the general public. The statement may be used for more than one export or reexport to Hong Kong so long as it remains an accurate statement of Hong Kong law.
(2) Reexports from Hong Kong. No license issued by BIS may be used to reexport from Hong Kong any item subject to the EAR controlled on the CCL for NS, MT, NP column 1, and/or CB reasons unless the reexporter has received either:
(i) An export license issued by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers all items to be rexported pursuant to that BIS license for which a Hong Kong export license is required and that is valid on the date of the reexport that is subject to the EAR; or
(ii) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no export license is required from Hong Kong for the item(s) to be reexported. The statement may have been issued directly to the Hong Kong reexporter or it may be a written statement available to the general public. The statement may be used for more than one reexport from Hong Kong so long as it remains an accurate statement of Hong Kong law.
(b) Recordkeeping. The documents required to be obtained by paragraph (a) of this section must be retained and made available to the U.S. Government upon request in accordance with part 762 of the EAR.
§ 748.14   Granting of exceptions to the support documentation requirements.
(a) Overview. A request for an exception to obtaining the required support documentation will be considered by BIS; however, an exception will not be granted contrary to the objectives of the U.S. export control program. A request for exception may involve either a single transaction or, where the reason necessitating the request is continuing in nature, multiple transactions. If satisfied by the evidence presented, BIS may waive the support document requirement and accept the license application for processing.
(b) Procedure for requesting an exception. The request for an exception must be submitted with the license application to which the request relates, and the reason(s) for requesting the exception must be described in Block 24 or referred to in Block 24. Where the request relates to more than one license application, it should be submitted with the first license application and referred to in Block 24 on any subsequent license application.
(c) Action by BIS —(1) Single transaction request. Where a single transaction is involved, BIS will act on the request for exception at the same time as the license application with which the request is submitted. In those instances where the related license application is approved, the issuance of the license will serve as an automatic notice to the applicant that the exception was approved. If any restrictions are placed on granting of the exception, these will appear on the approval. If the request for exception is not approved, BIS will advise the applicant.
(2) Multiple transactions request. Where multiple transactions are involved, BIS will advise the applicant of the action taken on the exception request. The response from BIS will contain any conditions or restrictions that BIS finds necessary to impose (including an exception termination date if appropriate). In addition, a written acceptance of these conditions or restrictions may be required from the parties to the transaction.
§ 748.15   Authorization Validated End-User (VEU).
Validated end-users (VEU) are those who have been previously approved by BIS pursuant to the requirements of this section. To be eligible for authorization VEU, exporters, reexporters, and validated end-user applicants must adhere to the conditions and restrictions set forth in paragraphs (a) through (f) of this section. If a request for VEU Authorization for a particular end-user is not granted, no new license requirement is triggered. In addition, such a result does not render the end user ineligible for license approvals from BIS. There are two types of VEU authorization: General VEU Authorization and Data Center VEU Authorization. General VEU Authorizations permit the export, reexport, and transfer to validated end-users of any eligible items that will be used in a specific eligible destination. Data Center VEU Authorizations permit the export and reexport to validated end-users of any eligible items that will be used in specific data centers. A data center is a facility or “facilities” that house a multi-racked, networked computer system that include servers, storage devices, and networking equipment. Data Center VEU Authorizations may be either universal or national authorizations.
(a)(1) Eligible end-users for General VEU Authorizations and Data Center VEU Authorizations. The only end users to whom eligible items may be exported, reexported, or transferred under a General VEU Authorization or a Data Center VEU Authorization are those validated end-users identified in supplement no. 7 to this part. Those entities were added as VEUs according to the provisions in this section and supplement nos. 8 and 9 to this part.
(2) Requests for authorizations —(i) Advisory opinion. To apply for a General VEU Authorization or Data Center VEU Authorization, requests for authorization must be submitted in the form of an advisory opinion request, as described in § 748.3(c), and must include a list of items (except as excluded by paragraph (c) of this section), identified by ECCN, intended for export, reexport, or transfer (in-country) to an eligible end-user, once approved.
(ii) Applications for Universal VEU (UVEU) Authorization —(A) Application Overview. A UVEU authorization should be submitted by the owner of the advanced computing ICs. To qualify for UVEU authorization, the owner of the advanced computing ICs must certify that it will follow the guidelines in supplement no. 10 to this part. The owner of the advanced compute must certify that it will follow the guidelines in paragraphs 14, 15, and 18 of supplement no. 10 to this part on or before January 15, 2026. If the owner of the advanced computing ICs cannot certify to all of the guidelines in supplement no. 10 to this part, it must notify BIS in its application of the other entities involved in its operations. The applicant must also provide signed certifications from such entities as set forth in supplement no. 10 to this part. For UVEUs, if the operator of the advanced compute is different from the owner of the advanced compute, the operator must itself have an Authorization UVEU. As appropriate, BIS will adjudicate complete UVEU applications within 30 days of receipt. A UVEU will need to file a notification with BIS when building a datacenter in a new location 180 days before any exports, reexports, or transfers (in-country) to the new datacenter. The notification should include the physical address of the new data center location. BIS will use this information to update the eligible destination column in the validated end user list in supplement no. 7 to this part. The UVEU may choose whether to list a corporate address or a physical address of the new data center location. The UVEU may furnish its BIS authorization letter as proof of its authorization to receive exports, reexports, or transfers (in-country) prior to the publication of an amendment to supplement no. 7 to this part that includes a physical address, or where supplement no. 7 includes a corporate address but not a physical address. No other requirements may be placed on the UVEU beyond those described in supplement no. 10 to this part as a condition for granting the original UVEU application.
(B) UVEU Compute Geographic Allocations. UVEUs will be subject to the geographic allocations identified in paragraph 6 or supplement no. 10 to this part.
(iii) Applications for National VEU (NVEU) Authorization —(A) Application Overview. The NVEU Authorization will allow an entity to receive exports and reexports in a specific country as specified in their NVEU authorization. For every additional country in which the NVEU wants to operate, the owner of the advanced compute must obtain a separate NVEU authorization. To qualify for NVEU authorization, the owner of the advanced computing ICs must adhere to guidelines provided in supplement no. 10 to this part but, depending on its location and the national security and foreign policy risks associated with that location, may be subject to other requirements. The owner of the advanced compute must certify that it will follow the guidelines in paragraphs 14, 15, and 18 of supplement no. 10 to this part on or before January 15, 2026. If the owner of the advanced computing ICs cannot certify to all of the guidelines in supplement no. 10 to this part, it must notify BIS in its application of the other entities involved in its operations. Applicants must provide written assurances from those other entities consistent with supplement no. 10 to this part during the application review process. Government-to-Government assurances between the United States and the government of the country in which the NVEU wishes to operate may be sought before a NVEU is granted. Where multiple entities will own and operate the NVEU they should submit a joint application. For NVEUs, if the operator of the advanced compute is different from the owner of the advanced compute, the operator must itself have its own Authorization NVEU. After receiving NVEU Authorization, the NVEU will be listed as such in supplement no. 7 to this part. The NVEU may inform BIS if it prefers that supplement no. 7 list a corporate address or a physical address of the new data center location. Once approved for Authorization NVEU by BIS, the NVEU may furnish its BIS authorization letter that includes physical addresses as proof of its authorization to receive exports, reexports, or transfers (in-country) prior to the publication of an amendment to supplement no. 7 that includes a physical address, or where supplement no. 7 includes a corporate address but not a physical address.
(B) NVEU TPP Allocation. NVEUs will be subject to a per-NVEU per-country installed base allocation of total processing performance (TPP), as measured by the collective computing power of items subject to ECCNs 3A090.a, 4A090.a, or corresponding .z paragraphs, as provided below:
Table 1 to Paragraph (a)(2)(iii)(B)
These TPP allocations represent permitted cumulative installed base during a given quarter, not newly available TPP in addition to previous-quarter installed bases, and do not count towards or impact country allocations. Advanced computing ICs that suffer attrition due to factors such as loss, damage, failure, relocation, and resale do not count toward allocations.
(iv) Information to include and address for submissions. To ensure a thorough review, applications for Authorization VEU must include the information described in supplement no. 8 to this part. Applications for UVEU and NVEU should also include information demonstrating that the applicant can adhere to the guidelines described in supplement no. 10 to this part. Requests for authorization will be accepted from exporters, reexporters, or end users. Submit the request to: The Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW, Room 2099B, Washington, DC 20230. Mark the package “Request for [insert “General,” “Data Center—Universal,” or “Data Center—National” as appropriate] Authorization Validated End-user.”
(3) Conditions and Restrictions. In evaluating an end user for eligibility under authorization VEU, the ERC will consider a range of information, including but not limited to such factors as: the end user's record of exclusive engagement in appropriate end-use activities; the end user's compliance with U.S. export controls; the need for an on-site review prior to approval; the end user's capability of complying with the requirements of authorization VEU, the ability of the end user to guard against both the misuse and diversion of computing resources; the end user's technology roadmap; the end user's technology control plan; the end user's agreement to on-site reviews by representatives of the U.S. Government to ensure adherence to the conditions of the VEU authorization; and the end user's relationships with U.S. and foreign companies. In addition, when evaluating the eligibility of an end user, the ERC will consider the status of the eligible destination country's export controls and the support and adherence to multilateral export control regimes of the government of the eligible destination.
(4) VEU Status. The VEU authorization is subject to revision, suspension, or revocation entirely or in part.
(5) Continuing Representations. Information submitted in a VEU request is deemed to constitute continuing representations of existing facts or circumstances. Any material or substantive change relating to the authorization must be promptly reported to BIS, whether VEU authorization has been granted or is still under consideration.
(b) Eligible destinations —(1) General VEU Authorizations. General VEU Authorizations may be used for the following destinations:
(i) The People's Republic of China.
(ii) India.
(2) Data Center VEU Authorizations. (i) UVEU must be headquartered in, or have their ultimate parent company headquartered in, destinations listed in paragraph (a) of Supplement No. 5 to Part 740, and UVEU data centers may be located anywhere, except in Macau or destinations specified in Country Group D:5.
(ii) NVEU may be headquartered, have an ultimate parent headquartered, or located in a destination specified in Country Groups A, B, or D:1-D:4, except Macau or destinations specified in Country Group D:5. NVEU data centers can be built around the world, except in Macau or destinations specified in Country Group D:5.
(c) Item restrictions. (1) Items controlled under the EAR for missile technology (MT) and crime control (CC) reasons may not be exported or reexported under General or Data Center VEU Authorizations.
(2) Eligible items for Data Center VEU Authorizations are all those items on the Commerce Control List, that require a license to the destination excluding “600 series” items, and are necessary for a data center.
(d) End-use restrictions —(1) General VEU Authorizations. Items obtained under General VEU Authorizations in China may be used only for civil end uses and may not be used for any activities described in part 744 of the EAR. The restrictions of §§ 744.6(c)(2)(i) through (iii) and 744.23(a)(1) and (a)(2) of the EAR do not apply to VEUs identified in supplement no. 7 to part 748 as excluded from §§ 744.6(c)(2)(i) through (iii) and 744.23(a)(1) and (a)(2) of the EAR. Items obtained under General VEU Authorizations in India may be used for either civil or military end uses and may not be used for any activities described in part 744 of the EAR. Exports, reexports, or transfers made under authorization VEU may be made to an end user listed in supplement no. 7 to this part only if the items will be consigned to and for use by the validated end user. Eligible end-users who obtain items under VEU may only:
(i) Use such items at the end-user's own facility located in an eligible destination or at a facility located in an eligible destination over which the end-user demonstrates effective control;
(ii) Consume such items during use; or
(iii) Transfer or reexport such items only as authorized by BIS.
(2) Data Center VEU Authorizations. Items obtained under Data Center VEU Authorizations may not be used for any activities described in part 744 of the EAR. Eligible validated end users who obtain items under VEU may only:
(i) Use such items at the end user's own facility located in an authorized destination;
(ii) Consume such items during use; or
(iii) In-country transfers and reexports are not permitted under Data Center VEU Authorization unless the transfer (in-country) or reexport is to a VEU authorized location by the same VEU or a separate authorization is obtained.
Authorizations set forth in supplement no. 7 to this part are country-specific. Authorization as a validated end-user for one country specified in paragraph (b) of this section does not constitute authorization as a validated end-user for any other country specified in that paragraph.
(e) Certification and recordkeeping. Prior to an initial export or reexport to a validated end-user under General or Data Center VEU Authorization, exporters or reexporters must obtain certifications from the validated end-user regarding end-use and compliance with VEU requirements. Such certifications must include the contents set forth in supplement no. 8 to this part. Certifications and all records relating to VEU must be retained by exporters or reexporters in accordance with the recordkeeping requirements set forth in part 762 of the EAR.
(f) Reporting and review requirements —(1) Reports —(i) Reexport Information Required for both types of VEU authorizations. Reexporters who make use of General VEU Authorizations are required to submit annual reports to BIS. Reexporters who make use of Data Center VEU Authorizations are required to submit semi-annual reports to BIS. For either authorization, reexporters must include, for each validated end user to whom the exporter or reexporter exported or reexported eligible items:
(A) The name and address of each validated end-user to whom eligible items were reexported;
(B) The eligible destination to which the items were reexported;
(C) The quantity of such items;
(D) The value of such items; and
(E) The ECCN(s) of such items.
(ii) End user reports for Data Center VEU Authorizations. End users who make use of Data Center VEU Authorizations must submit reports to BIS semi-annually. End users must submit the following information, including, as appropriate:
(A) A record of current inventory of eligible items received;
(B) Dates of when eligible items were received; and
(C) For NVEUs, a list of current customers.
(iii) Deadlines. For reexporters making use of General VEU Authorization, reports are due by February 15 of each year, and must cover the period from January 1 through December 31 of the prior year. For reexporters and end users making use of Data Center VEU Authorization, reports are due semiannually:
(A) The first report is due July 15 of each year and must cover the period from January 1 through June 30;
(B) The second report is due January 15 of each year and must cover the period from July 1 to December 31 of the previous year.
(iv) Addresses. Reports must be sent to: Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Room 2099B, Washington, DC 20230. Mark the package “General Authorization Validated End-User Report” or “Data Center Authorization Validated End-user Report.”
(2) Reviews. Records related to activities covered by General or Data Center VEU Authorizations that are maintained by exporters, reexporters, transferors, and VEU will be reviewed on a periodic basis. Upon request by BIS, exporters, reexporters, transferors, and validated end-users must allow review of records, including on-site reviews covering the information set forth in paragraphs (e) and (f)(1) of this section.
(g) Notification requirement. Exporters and reexporters shipping under General or Data Center VEU Authorizations and persons transferring (in-country) under General VEU Authorization are required to provide the VEUs to which they are shipping or transferring notice of the shipment or transfer. Such notification must be conveyed to the VEU in writing and must include a list of the VEU-authorized contents of the shipment or transfer and a list of the ECCNs under which the VEU-authorized items in the shipment or transfer are classified, as well as a statement that the items are being, will be, or were shipped or transferred pursuant to relevant VEU Authorization. Notification of the export, reexport or transfer (in-country) to the VEU must be made within a timeframe agreed to in writing by the VEU and the person exporting, reexporting or transferring (in-country). The VEU and the person exporting, reexporting or transferring (in-country) must agree to the notification timeframe prior to the initial shipment or transfer under the VEU Authorizations. Depending on the agreement between the VEU and the person exporting, reexporting or transferring (in-country), a notification may be for individual shipments or for multiple shipments. Exporters, reexporters and VEUs are required to maintain the notifications they send or receive in accordance with their recordkeeping requirements.
(h) Termination of Conditions on VEU Authorizations. VEUs that are subject to item-specific conditions and have received items subject to such conditions under General or Data Center VEU Authorizations are no longer bound by the conditions associated with the items if the items no longer require a license for export or reexport to the PRC, India, or data center location, as applicable, or become eligible for shipment under a license exception to the destination. Items that become eligible for a license exception are subject to the terms and conditions of the applicable license exception and the restrictions in § 740.2 of the EAR. Items that become eligible for export without a license and that remain subject to the EAR may only be exported, reexported, transferred (in-country) or disposed of in accordance with the requirements of the EAR. Termination of VEU conditions does not relieve a validated end-user of its responsibility for violations that occurred prior to the availability of a license exception or prior to the removal of license requirements.
(i) Records. Records of items that were shipped under General or Data Center VEU Authorizations prior to the removal of a license requirement or the availability of a license exception remain subject to the review requirements of paragraph (f)(2) of this section on and after the date that the license requirement was removed or the license exception became applicable.
§ 748.16   Approved integrated circuit designers list and approved “OSAT” companies list, addition, removal, or modification requests.
You must submit an advisory opinion, in accordance with § 748.3 of this part and the provisions in this section, to request an addition or modification to or removal from the approved integrated circuit designers list in supplement no. 6 to part 740 of the EAR, or the approved “OSAT” companies list in supplement no. 7 to part 740 of the EAR. The advisory opinion request must adhere to the provisions in paragraphs (a) through (d) of this section. Denied requests do not result in new license requirements or render the applicant ineligible for license approvals from BIS, nor does a denied request preclude a company from submitting a subsequent request.
(a)(1) Requests to be added. Only entities not headquartered or having an ultimate parent headquartered in Macau or a destination specified in Country Group D:5 in supplement no. 1 to part 740 will be considered for addition to either list. Only entities that have designed, assembled, tested, or packaged integrated circuits, or have credible plans to do so, will be considered for addition to either list. To ensure a thorough review, requests to be added to either list must include the information in supplement no. 4 to this part.
(2) Requests for removal or modification. Any listed party may request to be removed from a list or have their listing modified. If a listed entity's legal status changes ( e.g., is dissolved), then they must request to be removed from the appropriate list. If control of the listed entity changes or the name changes, then the company must submit a modification request. If the company can no longer abide by the provisions of the EAR that pertain to approved entities, then they must request removal from the relevant list.
(3) Submission of requests. All requests should be emailed to approved_supply_chain@bis.doc.gov with a subject line stating, “Approved supply chain entities request.”
(4) Review of requests for addition, modification, or removal. The End-user Review Committee (ERC) will review all requests (additions, modifications, and removals) to both lists.
(i) The ERC will consider a range of information for requests to be added to a list, potentially including but not limited to such factors as:
(A) the applicant's record of exclusive engagement in appropriate end-use activities;
(B) the applicant's compliance with U.S. export controls;
(C) the need for an on-site review prior to approval;
(D) the applicant's capability of complying with the requirements of being added to the approved integrated circuit designers list or approved “OSAT” companies list;
(E) the ability of the applicant to guard against both the misuse and diversion of computing resources; and
(F) the applicant's relationships with U.S. and foreign companies. In addition, when evaluating the application, the ERC will consider the status of the export controls of the country or countries where the applicant is headquartered, and these countries' support of and adherence to multilateral export control regimes.
(ii) Requests to modify a listing due to a change in ownership or other substantive change to the listed entity will be considered in light of all of the criteria listed above. Requests to modify a listing to correct clerical errors or non-substantive changes to the listed entity's information will typically be approved.
(iii) In reviewing requests to be removed from a list, BIS will consider facts regarding the entity's compliance with the requirements of its status and the entity's rationale for removing its status. In general, requests to be removed from a list will be approved.
(5) Approval status. Approved integrated circuit designer and approved “OSAT” company status ( i.e., listing) is subject to revision, suspension, or revocation entirely or in part.
(6) Continuing representations. Information submitted in an addition or modification request is deemed to constitute continuing representations of existing facts or circumstances. Any material or substantive change relating to the request must be promptly reported to the ERC, whether approved or still under consideration.
(b) Recordkeeping. Records relating to all requests must be retained by the requester in accordance with the recordkeeping requirements set forth in part 762 of the EAR.
(c) Reporting requirements. Authorized integrated circuit designers, to be eligible for that status consistent with Note 1 to ECCN 3A090.a, are required to submit certain information to the “front-end fabricator,” which the “front-end fabricator” must then report to BIS. See § 743.9 of the EAR.
(d) Termination of reporting requirements. Approved integrated circuit designers and approved “OSAT” companies may request to be removed from a relevant list, however, the recordkeeping requirements in paragraph (b) of this section and the reporting requirements in paragraph (c) of this section must be adhered to until the listing is removed from the relevant list.