Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4865 

Country Entity Federal Register 

citation 

Beijing Skyrizon Aviation Industry Investment Co., Ltd., a.k.a., the following 

one alias: 

—Beijing Tianjiao Aviation Industry Investment Company 

86 FR [INSERT FR PAGE NUMBER 

1/15/2021]. 

21/F Tower C Zhizhen Plaza, No. 7 Zhichun Road, Haidian District, Beijing, 

China. 

CHINA, PEOPLE’S 

REPUBLIC OF.

* * * * * * 

* * * * * * * 

Matthew S. Borman, 

Deputy Assistant Secretary for Export 

Administration. 

[FR Doc. 2021–00995 Filed 1–14–21; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 730, 734, 736, and 744 

[Docket No. 210112–0007] 

RIN 0694–AI38 

Expansion of Certain End-Use and 

End-User Controls and Controls on 

Specific Activities of U.S. Persons 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Interim final rule. 

SUMMARY: The Bureau of Industry and 

Security (BIS), Department of 

Commerce, is issuing this interim final 

rule to implement the provisions of the 

Export Control Reform Act of 2018 by: 

imposing additional license 

requirements under the Export 

Administration Regulations (EAR) for 

exports, reexports, and transfers (incountry), as well as specific activities of 

U.S. persons, in connection with certain 

military-intelligence end uses and end 

users; clarifying that license 

requirements under the EAR for specific 

activities of U.S. persons apply even 

when the items at issue are not subject 

to the EAR; establishing restrictions on 

transactions intended to circumvent 

license requirements for listed entities; 

and expanding the scope of activities 

subject to chemical and biological 

weapons and rocket systems and 

unmanned aerial vehicles end-use 

controls. 

DATES: Effective date: This rule is 

effective March 16, 2021. Comment 

date: Comments must be received by 

BIS no later than March 1, 2021. 

ADDRESSES: Comments on this rule may 

be submitted to the Federal rulemaking 

portal (www.regulations.gov). The 

regulations.gov ID for this rule is: BIS– 

2020–0044 or RIN 0694–AI38. All 

relevant comments (including any 

personally identifying information) will 

be made available for public inspection 

and copying. Follow the instructions for 

submitting comments. 

All filers using the portal should use 

the name of the person or entity 

submitting the comments as the name of 

their files, in accordance with the 

instructions below. Anyone submitting 

business confidential information 

should clearly identify the business 

confidential portion at the time of 

submission, file a statement justifying 

nondisclosure and referring to the 

specific legal authority claimed, and 

also provide a non-confidential version 

of the submission. 

For comments submitted 

electronically containing business 

confidential information, the file name 

of the business confidential version 

should begin with the characters ‘‘BC.’’ 

Any page containing business 

confidential information must be clearly 

marked ‘‘BUSINESS CONFIDENTIAL’’ 

on the top of that page. The 

corresponding non-confidential version 

of those comments must be clearly 

marked ‘‘PUBLIC.’’ The file name of the 

non-confidential version should begin 

with the character ‘‘P.’’ The ‘‘BC’’ and 

‘‘P’’ should be followed by the name of 

the person or entity submitting the 

comments or rebuttal comments. Any 

submissions with file names that do not 

begin with either a ‘‘BC’’ or a ‘‘P’’ will 

be assumed to be public and will be 

made publicly available through http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Philip Johnson, Senior Advisor, Export 

Enforcement, Bureau of Industry and 

Security, Phone: (202) 482–3685, 

Philip.Johnson@bis.doc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On August 13, 2018, the President 

signed into law the John S. McCain 

National Defense Authorization Act for 

Fiscal Year 2019, which included the 

Export Control Reform Act of 2018 

(ECRA) (50 U.S.C. 4801–4852). ECRA 

directs the President to control exports, 

reexports, and transfers (in-country); as 

well as the activities of U.S. persons in 

connection with nuclear, chemical, and 

biological weapons; whole plants for 

chemical weapons precursors; missiles; 

foreign maritime nuclear projects; and 

foreign military intelligence services. 

Accordingly, BIS is amending parts 730, 

734, 736, and 744 of the Export 

Administration Regulations (EAR) (15 

CFR parts 730 through 774) to 

implement such controls. BIS is also 

making certain revisions to enhance 

existing end-use and end-user controls 

under the EAR, including their 

enforceability. 

Restrictions on Specific Activities of 

U.S. Persons 

Section 1753(a)(2) of ECRA (50 U.S.C. 

4812(a)(2)) directs the President to 

impose controls on the activities of U.S. 

persons, wherever located, relating to 

specific nuclear explosive devices, 

missiles, chemical or biological 

weapons, whole plants for chemical 

weapons precursors, foreign maritime 

nuclear projects, and foreign military 

intelligence services. Additionally, 

section 1754(d) of ECRA (50 U.S.C. 

4813(d)) directs the Secretary of 

Commerce to require U.S. persons to 

apply for and receive a license to engage 

in specific activities in connection with 

nuclear explosive devices, missiles, 

chemical or biological weapons, whole 

plants for chemical weapons precursors, 

and foreign maritime nuclear projects, 

regardless of whether such activities 

occur in connection with an export, 

reexport, or transfer (in-country) of 

items subject to the EAR. Although 

section 1754(d)(2) of ECRA (50 U.S.C. 

4813(d)(2)) does not specifically direct 

the Secretary of Commerce to impose a 

license requirement on the activities of 

U.S. persons in connection with foreign 

military intelligence services, section 

1754(a)(16) of ECRA (50 U.S.C. 

4813(a)(16)) authorizes the Secretary to 

undertake any other action not 

otherwise prohibited by law to carry out 

the authorities granted to the President 

4866 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

in section 1753 of ECRA (50 U.S.C. 

4812), which includes restrictions on 

U.S. person activities in connection 

with foreign military intelligence 

services (section 1753(a)(2)(F) of ECRA 

(50 U.S.C. 4812(a)(2)(F))). 

The EAR already restrict specific 

activities of U.S. persons in connection 

with nuclear explosive devices, 

missiles, chemical and biological 

weapons, and whole plants for chemical 

weapons precursors. In accordance with 

ECRA, BIS is expanding these existing 

restrictions to encompass activities of 

U.S. persons in connection with certain 

military-intelligence end uses and end 

users. Specifically, BIS is revising 

§§ 730.5 and 734.5(a) of the EAR to 

reflect the expanded scope of U.S. 

person activities subject to the EAR, as 

described below, which include 

activities supporting certain militaryintelligence end uses and end users. 

The general categories of exports, 

reexports, and transfers (in-country), as 

well as activities of U.S. persons, which 

are prohibited absent a license from BIS 

are summarized in the ‘‘General 

Prohibitions’’ found in § 736.2 of the 

EAR. Specifically, § 736.2(b)(7) of the 

EAR describes the types of U.S. person 

WMD proliferation activity subject to a 

license requirement under the EAR. In 

this rule, BIS is revising § 736.2(b)(7) by 

harmonizing the definition of ‘‘U.S. 

person’’ in that section with the 

definition of that term as set forth in 

§ 772.1 of the EAR. Furthermore, BIS is 

revising § 736.2(b)(7) to broaden the 

prohibition, absent a license from BIS, 

to include specific activities of U.S. 

persons in support of certain militaryintelligence end uses and end users 

pursuant to sections 1753(a)(2)(F) and 

1754(a)(16) of ECRA (50 U.S.C. 

4812(a)(2)(F) and 4813(a)(16)). 

The license requirements that apply 

to specific activities of U.S. persons are 

described in § 744.6 of the EAR. Section 

744.6 currently contains restrictions on 

exports, reexports, and transfers (incountry), as well as activities unrelated 

to exports (e.g., contracts, services, and 

employment), when connected with 

certain nuclear explosive, missile, or 

chemical or biological weapons-related 

activities, or whole plants for chemical 

weapons precursors. Section 

1754(d)(1)(A) of ECRA (50 U.S.C. 

4813(d)(1)(A)) specifies that controls on 

the activities of U.S. persons apply even 

when the items at issue ‘‘are not subject 

to control under this subchapter,’’ (i.e., 

are not ‘‘subject to the EAR’’). Therefore, 

BIS is revising § 744.6 to replace the 

terms ‘‘export’’ and ‘‘reexport’’ with the 

acts of shipping or transmitting to 

ensure that the controls set forth in that 

section apply to foreign-origin items not 

subject to the EAR, as set forth in ECRA. 

Furthermore, BIS is revising § 744.6 to 

provide an illustrative list of the types 

of activities unrelated to the shipment, 

transmission, or transfer (in-country) of 

items that are subject to a license 

requirement when undertaken by U.S. 

persons in connection with the end uses 

or end users enumerated in that section. 

This list is derived from the list of 

‘‘Specific Unlawful Acts’’ set forth in 

section 1760(a)(2)(E) of ECRA (50 U.S.C. 

4819(a)(2)(E)). BIS is also revising 

§ 744.6 to impose a license requirement 

on such activities when a U.S. person 

knows the activity(ies) ‘‘will support,’’ 

as opposed to ‘‘will directly assist,’’ any 

of the end uses or end users listed in 

that section of the EAR. BIS is making 

this change in accordance with section 

1754(d)(1)(B) of ECRA (50 U.S.C. 

4813(d)(1)(B)), which authorizes the 

Secretary to implement controls on 

‘‘activities that may support’’ the end 

uses described in section 1754(d)(2) of 

ECRA (50 U.S.C. 4813(d)(2)); and in 

accordance with section 1754(a)(16) of 

ECRA (50 U.S.C. 4813(a)(16)), which 

authorizes the Secretary to ‘‘undertake 

any other action as necessary to carry 

out this subchapter that is not otherwise 

prohibited by law,’’ which includes 

implementing controls on the end uses 

and end users described in section 

1753(a)(2) of ECRA (50 U.S.C. 

4812(a)(2)). 

In accordance with section s 

1753(a)(2)(F) and 1754(a)(16) of ECRA 

(50 U.S.C. 4812(a)(2)(F) and 

4813(a)(16)), BIS is also adding to 

§ 744.6 of the EAR a new restriction on 

the activities of U.S. persons in support 

of certain military-intelligence end uses 

and end users. The scope of militaryintelligence end uses and end users 

subject to control is defined in § 744.22, 

as explained below. In addition, BIS is 

expanding the destinations with respect 

to which the activities of U.S. persons 

are restricted in connection with 

nuclear explosive devices to include 

any country not listed in supplement 

no. 3 to part 744, for consistency with 

the restrictions on exports, reexports, 

and transfers (in-country) of items for 

use in nuclear explosive activities, as set 

forth in § 744.2(a)(1) of the EAR. 

Likewise, BIS is expanding the 

destinations with respect to which the 

activities of U.S. persons are restricted 

in connection with certain ‘‘missile’’ 

end uses pursuant to § 744.6 to include 

Cuba, a unilaterally-embargoed country 

listed in Country Group E:2 (see 

supplement no. 1 to part 740 of the 

EAR), but not also listed in Country 

Group D:4. 

ECRA directs the Secretary of 

Commerce to impose a license 

requirement on specific activities of 

U.S. persons, ‘‘except to the extent 

authorized by a statute or regulation 

administered by a Federal department 

or agency other than the Department of 

Commerce’’ (50 U.S.C. 4813(d)(1)). To 

avoid overlapping license requirements 

across U.S. government agencies, BIS is 

adding to § 744.6 of the EAR a provision 

defining the scope of U.S. person 

activities requiring a license from BIS 

pursuant to that section to exclude any 

activity subject to a license requirement 

or general prohibition administered by 

another federal department or agency, to 

include the Departments of Energy, 

State, or the Treasury. 

The Department of Energy 

administers controls on the transfer of 

unclassified nuclear technology and 

assistance to foreign atomic energy 

activities within the United States or 

abroad. Pursuant to Department of 

Energy regulations at 10 CFR part 810, 

implementing section 57.b(2) of the 

Atomic Energy Act of 1954, as amended 

(42 U.S.C. 2077(b)), persons may engage, 

directly or indirectly, in the production 

or development of special nuclear 

material outside the United States upon 

authorization by the Secretary of 

Energy. 

The Department of State administers 

the International Traffic in Arms 

Regulations (ITAR) (22 CFR parts 120 

through 130) pursuant to the Arms 

Export Control Act (AECA) (22 U.S.C. 

2778). The ITAR include controls on 

defense articles (22 CFR 120.6), which 

are described on the U.S. Munitions List 

(USML) (22 CFR 121.1). In addition, the 

ITAR control the performance of 

defense services (22 CFR 120.9), which 

may include the furnishing of military 

training to foreign units and forces, as 

well as the furnishing of assistance 

pertaining to defense articles to foreign 

persons, or the furnishing to foreign 

persons of any controlled technical data 

(22 CFR 120.10). The ITAR also regulate 

brokering activities (see 22 CFR part 

129), which include any action 

undertaken on behalf of another to 

facilitate the manufacture, export, 

permanent import, transfer, reexport, or 

retransfer of a U.S. or foreign defense 

article or defense service enumerated on 

the USML and those items designated in 

the U.S. Munitions Import List (USMIL) 

(27 CFR 447.21). The USML includes, 

inter alia, nuclear weapons-related 

articles (Category XVI), missiles 

(Category IV), unmanned aerial vehicles 

(Category VIII), and toxicological agents 

and associated equipment (Category 

XIV). The USMIL includes, inter alia, 

nuclear weapons design and test 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4867 

equipment (Category XVI), missiles 

(Category IV), and toxicological agents 

and equipment (Category XIV). 

The Department of the Treasury, 

through the Office of Foreign Assets 

Control (OFAC), administers economic 

sanctions programs governing 

transactions involving U.S. persons in 

connection with certain sanctioned 

countries or entities pursuant to a 

number of statutes and executive orders 

(see, inter alia, 31 CFR parts 500 

through 599). 

Section 744.6 of the EAR does not, 

and is not intended to, control the 

activities of U.S. persons subject to the 

regulatory controls administered by 

other federal departments and agencies, 

to include the Department of Energy, the 

Department of State, and the 

Department of the Treasury. The 

purpose of § 744.6 is to control those 

activities of U.S. persons in connection 

with the end uses and end users 

enumerated in that section, only if those 

activities are not already subject to other 

federal regulatory controls. 

Finally, other U.S. laws, including 

criminal statutes, may prohibit the 

performance of certain activities by a 

person subject to the jurisdiction of the 

United States in connection with the 

end uses and end users described in 

§ 744.6 even if that person has obtained 

a BIS license. The issuance of a BIS 

license does not authorize ‘‘U.S. 

persons’’ to engage in any conduct that 

is otherwise prohibited by U.S. law, 

including any criminal statute. 

While § 744.6 of the EAR imposes 

license requirements on certain 

transactions of items not subject to the 

EAR, and certain support activities, 

where a U.S. person is involved, BIS 

also notes that controls on exports, 

reexports, and transfers (in-country) of 

items subject to the EAR to nuclear-, 

missile-, chemical and biological 

weapons-, and military-intelligencerelated end uses and end users are set 

forth in other sections of part 744, to 

include §§ 744.2, 744.3, 744.4, and 

744.22. Certain activities of U.S. or 

foreign persons that facilitate exports, 

reexports, and transfers (in-country) that 

require a license pursuant to those 

sections, where no such license has 

been issued, are prohibited pursuant to 

§ 764.2 of the EAR. 

Restrictions on Military-Intelligence End 

Uses and End Users 

This rule adds a new § 744.22 to the 

EAR, which imposes supplemental 

license requirements on the export, 

reexport, or transfer (in-country) of all 

items subject to the EAR to militaryintelligence end uses and end users in 

China, Russia, or Venezuela; and 

countries listed in Country Groups E:1 

and E:2 (see supplement no. 1 to part 

740 of the EAR). As previously 

discussed, section 1753(a)(2)(F) of ECRA 

(50 U.S.C. 4812(a)(2)(F)) directs the 

President to establish controls on the 

activities of U.S. persons with respect to 

foreign military intelligence services. 

This rule implements such controls by 

revising § 744.6 of the EAR as described 

above. Consistent with these restrictions 

on the activities of U.S. persons, and in 

accordance with the authority granted to 

the President in section 1753(a)(1) of 

ECRA (50 U.S.C. 4812(a)(1)) and 

exercised by the Secretary of Commerce 

pursuant to section 1754(a)(2) and 

(a)(16) of ECRA (50 U.S.C. 4813(a)(2) 

and (a)(16)), BIS believes it is 

appropriate to impose a license 

requirement on exports, reexports, and 

transfers (in-country) of all items subject 

to the EAR to the same militaryintelligence end uses and end users. 

Specifically, BIS believes controls on 

U.S. person activities related to militaryintelligence end uses and end users 

described in § 744.6 of the EAR would 

be of limited effect if not implemented 

in tandem with a corresponding license 

requirement for exports, reexports, and 

transfers (in-country). Although § 744.21 

of the EAR already imposes a license 

requirement on certain exports, 

reexports, and transfers (in-country) to 

military end uses and military end 

users, to include government 

intelligence and reconnaissance 

organizations, in China, Russia, or 

Venezuela, the restrictions in § 744.21(a) 

of the EAR apply only to items 

identified in supplement no. 2 to part 

744 of the EAR, not to all items subject 

to the EAR. Accordingly, the addition of 

§ 744.22 is warranted. 

Paragraphs (a) and (b) of § 744.22 set 

forth license requirements applicable to 

certain military-intelligence end uses 

and end users, paragraph (c) of that 

section provides for the use of License 

Exception GOV (§ 740.11(b)(2)(ii) of the 

EAR), and paragraphs (d) and (e) outline 

the application procedures and review 

policy that apply to license applications 

submitted pursuant to that section. 

Section 744.22(f)(1) defines a ‘‘militaryintelligence end use’’ and § 744.22(f)(2) 

defines a ‘‘military-intelligence end 

user’’ and sets forth an illustrative list 

of military-intelligence end users 

subject to the license requirements 

outlined in § 744.22. The imposition of 

a license requirement on exports, 

reexports, and transfers (in-country) for 

a military-intelligence end use or end 

user in the specified countries enhances 

U.S. national security by allowing prior 

U.S. government review of transactions 

involving military intelligence or 

reconnaissance organizations in 

countries subject to existing military 

end-use and end-user controls, 

sanctions, or embargoes. 

Corresponding Change to Existing 

‘Military End Use’ and ‘Military End 

User’ Controls 

‘Military-intelligence end users,’ as 

defined in new § 744.22(f)(2) of the EAR 

are a subset of the ‘‘government 

intelligence and reconnaissance 

organizations’’ already included in the 

definition of ‘military end user’ in 

§ 744.21(g) of the EAR. However, the 

license requirement in § 744.21(a) only 

applies with respect to items listed in 

supplement no. 2 to part 744 of the 

EAR, as opposed to all items subject to 

the EAR, as set forth in § 744.22(a). 

Accordingly, § 744.22 establishes a 

broader license requirement for this 

subset of ‘military end users’ already 

subject to license requirements under 

§ 744.21. To avoid duplicate license 

requirements and facilitate compliance, 

BIS is amending the definition of 

‘military end user’ in § 744.21(g) to 

exclude intelligence or reconnaissance 

organizations of the armed forces or 

national guard. Such intelligence or 

reconnaissance organizations will be 

subject to the broader license 

requirements of § 744.22; however, 

other government intelligence or 

reconnaissance organizations, which are 

not part of the armed services or 

national guard, will remain subject to 

the license requirements of § 744.21 of 

the EAR. 

Restrictions on Certain Chemical and 

Biological Weapons End Uses 

Section 744.4 of the EAR sets forth 

restrictions on exports, reexports, and 

transfers (in-country) to chemical and 

biological weapons end uses anywhere 

in the world. BIS is revising § 744.4 of 

the EAR, consistent with sections 

1753(a)(2)(D) and 1754(d)(2)(D) of ECRA 

(50 U.S.C. 4812(a)(2)(D) and 

4813(d)(2)(D)), to include restrictions on 

exports, reexports, and transfers (incountry) of any item subject to the EAR 

for use in the design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of a whole 

plant for chemical weapons precursors 

specified in export control classification 

number (ECCN) 1C350, which controls 

certain precursor chemicals listed in 

Schedules 2 and 3 of the Chemical 

Weapons Convention and/or subject to 

control by the Australia Group. The 

terms ‘‘development’’ and ‘‘production’’ 

are defined in § 772.1 of the EAR. This 

4868 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

expansion of controls advances U.S. 

WMD nonproliferation policy, as set 

forth in ECRA. 

Activities Associated With Use 

The term ‘‘use’’ is defined in § 772.1 

of the EAR as ‘‘operation, installation 

(including on-site installation, 

maintenance (checking), repair, 

overhaul, and refurbishing.’’ Sections 

744.3 and 744.4 of the EAR, 

respectively, impose license 

requirements on all items subject to the 

EAR when an exporter, reexporter, or 

transferor (in-country) knows such 

items will be used in the ‘‘design, 

‘development,’ ‘production,’ or use’’ of 

certain rocket systems or unmanned 

aerial vehicles; or in the ‘‘design, 

‘development,’ ‘production,’ 

stockpiling, or use’’ of chemical or 

biological weapons. Likewise, § 744.6 

imposes a license requirement on 

specific activities of U.S. persons in 

support of the ‘‘design, ‘development,’ 

‘production,’ or use’’ of nuclear 

explosive devices and rocket systems or 

unmanned aerial vehicles; or the 

‘‘design, ‘development,’ ‘production,’ 

stockpiling, or use’’ of chemical or 

biological weapons. The definition of 

‘‘use’’ in § 772.1 of the EAR, which 

appears in general technology notes on 

the Commerce Control List (CCL) 

(supplement no. 1 to part 774 of the 

EAR), resulted in a requirement for a 

WMD end use to involve all of the 

activities listed in that definition in 

order to trigger a ‘‘use’’-based license 

requirement under §§ 744.3, 744.4, or 

744.6 of the EAR. This is inconsistent 

with section 1754(d)(1)(B) of ECRA (50 

U.S.C. 4813(d)(1)(B)), which lists the 

component activities of the EAR 

definition of ‘‘use’’ as separate and 

individually-sufficient activities for 

end-use control purposes. Accordingly, 

BIS is revising each of those sections of 

the EAR to replace the word ‘‘use’’ with 

a list of its component activities, i.e., 

‘‘operation, installation (including onsite installation), maintenance 

(checking), repair, overhaul, or 

refurbishing,’’ to ensure that any one of 

those activities individually triggers a 

license requirement under the relevant 

sections of the EAR, when connected 

with certain WMD end uses. 

Additional Prohibition on Persons 

Informed by BIS of Transactions 

Intended To Circumvent Entity List 

License Requirements 

The Entity List (supplement no. 4 to 

part 744 of the EAR) imposes a 

supplemental license requirement, to 

the extent specified in each entry on the 

Entity List, for exports, reexports, or 

transfers (in-country) in which a listed 

entity is a party to the transaction as 

described in § 748.5(c) through (f) of the 

EAR. Entities may be added to the 

Entity List in accordance with the 

procedures set forth in supplement no. 

5 to part 744 of the EAR if there is 

reasonable cause to believe the entity 

has been involved, is involved, or poses 

a significant risk of being or becoming 

involved in activities contrary to U.S. 

national security or foreign policy 

interests. 

Although Entity List license 

requirements generally only apply to 

listed entities, BIS has posted guidance 

on its website in the form of frequently 

asked questions (FAQs) advising 

increased due diligence when 

proceeding with transactions involving 

parties co-located with, or which are 

subsidiaries, parent companies, or sister 

companies of, listed entities. In such 

cases, exporters, reexporters, and 

transferors should assess whether such 

entities are acting as an agent, front, or 

a shell company for a listed entity in 

order to facilitate transactions that 

would otherwise not be permissible, 

and whether the items intended for 

export, reexport, or transfer (in-country) 

may ultimately be destined to a listed 

entity. 

In certain cases, BIS may have 

information indicating that a specific 

transaction, although not directly 

involving a listed entity, nevertheless 

poses an unacceptable risk of diversion 

to a listed entity. Likewise, BIS may 

have information that a specific entity, 

although not itself listed on the Entity 

List, is acting on behalf of a listed entity, 

or otherwise assisting a listed entity, in 

circumventing Entity List license 

requirements. In such cases, BIS may 

wish to inform an exporter, reexporter, 

or transferor that a license is required 

based on an unacceptable risk that the 

items in question will ultimately be 

used by, or diverted to, a listed entity. 

This is consistent with other provisions 

of part 744 of the EAR (i.e., §§ 744.2(b), 

744.3(b), 744.4(b), 744.9(b), 744.17(b), 

744.21(b), and 744.22(b)), which 

authorize BIS to inform exporters, 

reexporters, or transferors of a license 

requirement based on an unacceptable 

risk of use in, or diversion to, specified 

end uses or end users. 

Furthermore, section 1754(a)(2) and 

(a)(15) of ECRA (50 U.S.C. 4813(a)(2) 

and (a)(15)) specifically authorize the 

Secretary of Commerce to not only 

establish and maintain lists of foreign 

persons determined to be a threat to the 

national security and foreign policy of 

the United States, but also to inform 

persons, either individually by specific 

notice, or through amendment to the 

EAR, that a license is required for 

specific transactions. Accordingly, BIS 

is adding a new paragraph (c) to 

§ 744.11 of the EAR, which authorizes 

BIS to inform persons that a license is 

required for specified transactions, or 

for transactions with specific parties, 

based on an unacceptable risk that the 

items in question will be ultimately 

used by, or diverted to, a listed entity. 

Conforming Changes 

BIS is also making conforming 

changes to § 744.1(a)(1) of the EAR to 

reflect the expanded scope of U.S. 

person controls in § 744.6, as well as 

new military-intelligence end-use and 

end-user controls in § 744.22, as 

implemented in this rule. In addition, 

BIS is adding to § 744.1(a)(1) a 

description of existing end-use and enduser controls in §§ 744.9, 744.17, and 

744.18 of the EAR. Finally, BIS is 

revising § 744.1(b)(2) of the EAR to 

reference all provisions of part 744 that 

set forth ‘‘additional prohibitions on 

persons informed by BIS,’’ to include 

new §§ 744.6(c), 744.11(c), and 

744.22(b), as well as existing 

§§ 744.9(b), 744.17(b), and 744.21(b), 

which were not previously listed in that 

section. 

Request for Comments 

BIS welcomes comments on the 

impact of this interim final rule. 

Instructions for the submission of 

comments, including comments that 

contain business confidential 

information, are found in the 

‘Addresses’ section of this interim final 

rule. 

Export Control Reform Act of 2018 

On August 13, 2018, the President 

signed into law the John S. McCain 

National Defense Authorization Act for 

Fiscal Year 2019, which included the 

Export Control Reform Act of 2018 

(ECRA), 50 U.S.C. 4801–4852. ECRA 

provides the legal basis for BIS’s 

principal authorities and serves as the 

authority under which BIS issues this 

rule. 

Rulemaking Requirements 

1. Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distribute impacts, and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This interim final rule has 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4869 

been designated a ‘‘significant 

regulatory action,’’ although not 

economically significant under section 

3(f) of Executive Order 12866. Although 

this rule is a significant regulatory 

action, it is a regulation where the 

analysis demonstrates that the primary, 

direct benefit is national security and is, 

thus, exempt from the provisions of 

Executive Order 13771. This interim 

final rule will support the national 

security and foreign policy objectives of 

the United States by implementing 

controls on exports, reexports, and 

transfers (in-country) related to whole 

plants for chemical weapons precursors 

and certain military-intelligence end 

uses and end users, as well as the 

activities of U.S. persons, with respect 

to such military-intelligence end uses 

and end users. These controls are 

consistent with ECRA and allow the 

U.S. government prior review of such 

transactions and activities to determine 

whether they would be contrary to U.S. 

national security and foreign policy 

interests. Furthermore, this rule 

advances U.S. national security and 

foreign policy by expanding existing 

controls on U.S. person activities in 

support of certain nuclear explosive 

devices, missiles, and chemical and 

biological weapons to apply to items not 

subject to the EAR, as directed in ECRA. 

This rule also supports U.S. national 

security and foreign policy by allowing 

prior U.S. government review of a 

broader range of transactions that may 

be destined to various activities related 

to the use of rocket systems or 

unmanned aerial vehicles, or chemical 

or biological weapons. Finally, this rule 

allows the U.S. government to review 

transactions that post an unacceptable 

risk of use by, or diversion to, entities 

acting contrary to U.S. national security 

and foreign policy interests. 

2. Notwithstanding any other 

provision of law, no person may be 

required to respond to or be subject to 

a penalty for failure to comply with a 

collection of information, subject to the 

requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.) (PRA), unless that collection of 

information displays a currently valid 

Office of Management and Budget 

(OMB) Control Number. This regulation 

involves a collection of information 

previously approved by OMB under 

control number 0694–0088, Simplified 

Network Application Processing 

System, which includes, among other 

things, license applications and carries 

a burden estimate of 42.5 minutes for a 

manual or electronic submission. BIS 

expects this rule will increase the 

number of license applications required 

to be submitted to BIS each year by 

imposing licensing requirements on 

certain exports, reexports, and transfers 

(in-country), as well as activities of U.S. 

persons not previously subject to a 

licensing requirement. BIS estimates the 

total number of additional license 

applications will not exceed 40 per year, 

for a total increase in public burden 

under OMB control number 0694–0088 

of no more than 29 hours per year. 

3. This rule does not contain policies 

with Federalism implications as that 

term is defined under Executive Order 

13132. 

Administrative Procedure Act and 

Regulatory Flexibility Act Requirements 

Pursuant to section 4821 of ECRA (50 

U.S.C. 4821), this action is exempt from 

the Administrative Procedure Act (5 

U.S.C. 553) requirements for notice of 

proposed rulemaking, opportunity for 

public participation and delay in 

effective date. 

Further, no other law requires that a 

notice of proposed rulemaking and an 

opportunity for public comment be 

given for this interim final rule. Because 

a notice of proposed rulemaking and an 

opportunity for public comment are not 

required to be given for this rule under 

the Administrative Procedure Act or by 

any other law, the analytical 

requirements of the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.) are 

not applicable. Accordingly, no 

regulatory flexibility analysis is 

required, and none has been prepared. 

List of Subjects 

15 CFR Part 730 

Administrative practice and 

procedure, Advisory committees, 

Exports, General information, Reporting 

and recordkeeping requirements, 

Strategic and critical materials. 

15 CFR Part 734 

Administrative practice and 

procedure, Exports, Inventions and 

patents, Research, Science and 

technology, Scope of the Export 

Administration Regulations. 

15 CFR Part 736 

Exports, General prohibitions. 

15 CFR Part 744 

End-user and end-use based control 

policy, Exports, Reporting and 

recordkeeping requirements, Terrorism. 

Accordingly, parts 730, 734, 736, and 

744 of the EAR (15 CFR parts 730 

through 774) are amended as follows: 

PART 730—GENERAL INFORMATION 

■ 1. The authority citation for part 730 

is revised to read as follows: 

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 

4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 

8720; 10 U.S.C. 8730(e); 22 U.S.C. 287c; 22 

U.S.C. 2151 note; 22 U.S.C. 3201 et seq.; 22 

U.S.C. 6004; 42 U.S.C. 2139a; 15 U.S.C. 1824; 

50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 

U.S.C. 7210; E.O. 11912, 41 FR 15825, 3 CFR, 

1976 Comp., p. 114; E.O. 12002, 42 FR 35623, 

3 CFR, 1977 Comp., p. 133; E.O. 12058, 43 

FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 

12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 

256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 

Comp., p. 608; E.O. 12854, 58 FR 36587, 3 

CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 

28205, 3 CFR, 1994 Comp., p. 899; E.O. 

12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 

950; E.O. 12981, 60 FR 62981, 3 CFR, 1995 

Comp., p. 419; E.O. 13020, 61 FR 54079, 3 

CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 

58767, 3 CFR, 1996 Comp., p. 228; E.O. 

13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 

783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 

Comp., p. 786; E.O. 13338, 69 FR 26751, 3 

CFR, 2004 Comp., p 168; E.O. 13637, 78 FR 

16129, 3 CFR, 2014 Comp., p. 223; Notice of 

September 18, 2020, 85 FR 59641 (September 

22, 2020); Notice of November 12, 2020, 85 

FR 72897 (November 13, 2020); Notice of 

May 7, 2020, 85 FR 27639. 

■ 2. Section 730.5 is amended by 

revising paragraph (d) to read as 

follows: 

§ 730.5 Coverage of more than exports. 

* * * * * 

(d) ‘‘U.S. person’’ activities. The EAR 

restrict specific activities of ‘‘U.S. 

persons,’’ wherever located, related to 

the proliferation of nuclear explosive 

devices, ‘‘missiles,’’ chemical or 

biological weapons, whole plants for 

chemical weapons precursors, and 

certain military-intelligence end uses 

and end users, as described in § 744.6 of 

the EAR. 

PART 734—SCOPE OF THE EXPORT 

ADMINISTRATION REGULATIONS 

■ 3. The authority citation for part 734 

is revised to read as follows: 

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 

4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 

12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 

950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 

Comp., p. 219; E.O. 13026, 61 FR 58767, 3 

CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 

44025, 3 CFR, 2001 Comp., p. 783; E.O. 

13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 

223; Notice of November 12, 2020, 85 FR 

72897 (November 13, 2020). 

■ 4. Section 734.5 is amended by 

revising paragraph (a) to read as follows: 

§ 734.5 Activities of U.S. and foreign 

persons subject to the EAR. 

* * * * * 

(a) Specific activities of ‘‘U.S. 

persons,’’ wherever located, related to 

4870 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

the proliferation of nuclear explosive 

devices, ‘‘missiles,’’ chemical or 

biological weapons, whole plants for 

chemical weapons precursors, and 

certain military-intelligence end uses 

and end users as described in § 744.6 of 

the EAR. 

* * * * * 

PART 736—GENERAL PROHIBITIONS 

■ 5. The authority citation for part 736 

is revised to read as follows: 

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 

4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 

12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 

950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 

Comp., p. 219; E.O. 13026, 61 FR 58767, 3 

CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 

44025, 3 CFR, 2001 Comp., p. 783; E.O. 

13338, 69 FR 26751, 3 CFR, 2004 Comp., p. 

168; Notice of November 12, 2020, 85 FR 

72897 (November 13, 2020); Notice of May 7, 

2020, 85 FR 27639. 

■ 6. Section 736.2 is amended by 

revising paragraphs (b)(7) introductory 

text and (7)(i) and (ii) to read as follows: 

§ 736.2 General prohibitions and 

determination of applicability. 

* * * * * 

(b) * * * 

(7) General Prohibition Seven— 

Support of proliferation activities and 

certain military-intelligence end uses 

and end users (‘‘U.S. person’’ 

activities)– 

(i) Support of proliferation activities 

and certain military-intelligence end 

uses and end users (‘‘U.S. person’’ 

activities). 

(A) If you are a ‘‘U.S. person,’’ as that 

term is defined in § 772.1 of the EAR, 

you may not engage in any activities 

prohibited by § 744.6(b) or (c) of the 

EAR, which prohibit, without a license 

from BIS, the shipment, transmission, or 

transfer (in-country) of items not subject 

to the EAR; facilitating such shipment, 

transmission, or transfer (in-country); or 

the performance of any contract, service, 

or employment (including, but not 

limited to: ordering, buying, removing, 

concealing, storing, using, selling, 

loaning, disposing, servicing, financing, 

or transporting, freight forwarding, or 

conducting negotiations in furtherance 

of) that you know or are informed by 

BIS will support: 

(1) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of nuclear 

explosive devices in or by any country 

not listed in supplement no. 3 to part 

744 of the EAR; 

(2) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of ‘‘missiles’’ 

in or by a country listed in Country 

Groups D:4 or E:2; 

(3) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of chemical or 

biological weapons in or by any country 

or destination worldwide; 

(4) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, refurbishing, shipment, or 

transfer (in-country) of a whole plant to 

make chemical weapons precursors 

identified in ECCN 1C350, in or by 

countries other than those listed in 

Country Group A:3 (Australia Group); or 

(5) A ‘military-intelligence end use’ or 

a ‘military-intelligence end user,’ as 

defined in § 744.22(f) of the EAR, in the 

People’s Republic of China, Russia, or 

Venezuela; or a country listed in 

Country Groups E:1 or E:2. 

(ii) [Reserved] 

* * * * * 

PART 744—CONTROL POLICY; ENDUSER AND END-USE BASED 

■ 7. The authority citation for part 744 

continues to read as follows: 

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 

4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 

3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 

et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 

20947, 3 CFR, 1978 Comp., p. 179; E.O. 

12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 

608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 

Comp., p. 950; E.O. 13026, 61 FR 58767, 3 

CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 

45167, 3 CFR, 1998 Comp., p. 208; E.O. 

13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 

783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 

Comp., p. 786; Notice of September 18, 2020, 

85 FR 59641 (September 22, 2020); Notice of 

November 12, 2020, 85 FR 72897 (November 

13, 2020). 

■ 8. Section 744.1 is amended by 

revising paragraphs (a)(1) and (b)(2) to 

read as follows: 

§ 744.1 General provisions. 

(a) * * * 

(1) Introduction. In this part, 

references to the EAR are references to 

15 CFR chapter VII, subchapter C. This 

part contains prohibitions against 

exports, reexports, and selected 

transfers to certain end users and end 

uses as introduced under General 

Prohibitions Five (End use/End users) 

and Nine (Orders, Terms, and 

Conditions), unless authorized by BIS. 

Sections 744.2, 744.3, and 744.4 

prohibit exports, reexports, and 

transfers (in-country) of items subject to 

the EAR to defined nuclear, missile, and 

chemical and biological weapons 

proliferation activities. Section 744.5 

prohibits exports, reexports, and 

transfers (in-country) of items subject to 

the EAR to defined nuclear maritime 

end-uses. Consistent with General 

Prohibition Seven (Support of 

Proliferation Activities and certain 

Military-Intelligence End Uses and End 

Users (‘‘U.S. person’’ activities)), § 744.6 

prohibits specific activities by U.S. 

persons in support of certain nuclear, 

missile, chemical and biological 

weapons end uses, and whole plants for 

chemical weapons precursors, as well as 

certain military-intelligence end uses 

and military-intelligence end users. 

Section 744.7 prohibits exports and 

reexports of certain items for certain 

aircraft and vessels. Section 744.8 

prohibits exports and reexports without 

authorization to certain parties who 

have been designated as proliferators of 

weapons of mass destruction or as 

supporters of such proliferators 

pursuant to Executive Order 13382. 

Section 744.9 sets forth restrictions on 

exports, reexports, and transfers (incountry) of certain cameras, systems, or 

related components. Section 744.10 

prohibits exports and reexports of any 

item subject to the EAR to Russian 

entities, included in supplement no. 4 

of this part. Section 744.11 imposes 

license requirements, to the extent 

specified in supplement no. 4 to this 

part on entities listed in supplement no. 

4 to this part for activities contrary to 

the national security or foreign policy 

interests of the United States. Sections 

744.12, 744.13, and 744.14 prohibit 

exports and reexports of any item 

subject to the EAR to persons designated 

as Specially Designated Global 

Terrorists, Specially Designated 

Terrorists, or Foreign Terrorist 

Organizations, respectively. Section 

744.15 sets forth the conditions for 

exports, reexports, and transfers (incountry) to persons listed on the 

Unverified List (UVL) in supplement no. 

6 to this part, the criteria for revising the 

UVL, as well as procedures for 

requesting removal or modification of a 

listing on the UVL. Section 744.16 sets 

forth the license requirements, policies 

and procedures for the Entity List. 

Section 744.17 sets forth restrictions on 

exports, reexports, and transfers (incountry) of microprocessors and 

associated ‘‘software’’ and ‘‘technology’’ 

for military end uses and to military end 

users. Section 744.18 sets forth 

restrictions on exports, reexports, and 

transfers to persons designated in or 

pursuant to Executive Order 13315. 

Section 744.19 sets forth BIS’s licensing 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4871 

policy for applications for exports or 

reexports when a party to the 

transaction is an entity that has been 

sanctioned pursuant to any of three 

specified statutes that require certain 

license applications to be denied. 

Section 744.20 requires a license, to the 

extent specified in supplement no. 4 to 

this part, for exports and reexports of 

items subject to the EAR destined to 

certain sanctioned entities listed in 

supplement no. 4 to this part. In 

addition, these sections include license 

review standards for export license 

applications submitted as required by 

these sections. It should also be noted 

that part 764 of the EAR prohibits 

exports, reexports and certain transfers 

of items subject to the EAR to denied 

parties. Section 744.21 imposes 

restrictions for exports, reexports and 

transfers (in-country) of items on the 

CCL for a military end use or military 

end user in the People’s Republic of 

China (PRC or China), Russia, or 

Venezuela. Section 744.22 imposes 

restrictions on exports, reexports, and 

transfers (in-country) for a militaryintelligence end use or militaryintelligence end user in China, Russia, 

or Venezuela; or a country listed in 

Country Groups E:1 or E:2 (see 

supplement no. 1 to part 740 of the 

EAR). 

* * * * * 

(b) * * * 

(2) Determine Applicability. Second, 

determine whether any of the end-use 

and end-user prohibitions described in 

this part are applicable to your planned 

export, reexport, shipment, 

transmission, transfer (in-country) or 

other activity. See supplement no. 1 to 

part 732 for guidance. For exports, 

reexports, shipments, transmissions, or 

transfers (in-country) that are in transit 

at the time you are informed by BIS that 

a license is required in accordance with 

§§ 744.2(b), 744.3(b), 744.4(b), 744.6(c), 

744.9(b), 744.11(c), 744.17(b), 744.21(b), 

or 744.22(b) of the EAR, you may not 

proceed any further with the transaction 

unless you first obtain a license from 

BIS (see part 748 of the EAR for 

instructions on how to apply for a 

license). The provisions of § 748.4(d)(2) 

of the EAR shall not apply to license 

applications submitted pursuant to a 

notification from BIS that occurs while 

an export, reexport, or transfer (incountry) is in transit. 

■ 9. Section 744.3 is amended by 

revising paragraphs (a)(1), (a)(2), (a)(3), 

(d)(2)(ii), and (d)(2)(v) to read as 

follows: 

§ 744.3 Restrictions on certain rocket 

systems (including ballistic missiles, space 

launch vehicles and sounding rockets) and 

unmanned aerial vehicles (including cruise 

missiles, target drones and reconnaissance 

drones) end-uses. 

(a) * * * 

(1) Will be used in the design, 

‘‘development,’’ ‘‘production,’’ 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of 

rocket systems or unmanned aerial 

vehicles capable of a range of at least 

300 kilometers in or by a country listed 

in Country Group D:4 of supplement no. 

1 to part 740 of the EAR. 

(2) Will be used anywhere in the 

world except by governmental programs 

for nuclear weapons delivery of NPT 

Nuclear Weapons States that are also 

members of NATO, in the design, 

‘‘development,’’ ‘‘production,’’ 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of 

rocket systems or unmanned aerial 

vehicles, regardless of range 

capabilities, for the delivery of 

chemical, biological, or nuclear 

weapons; or 

(3) Will be used in the design, 

‘‘development,’’ ‘‘production,’’ 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of any 

rocket systems or unmanned aerial 

vehicles in or by a country listed in 

Country Group D:4, but you are unable 

to determine: 

* * * * * 

(d) * * * 

(2) * * * 

(ii) The significance of the export, 

reexport or transfer in terms of its 

contribution to the design, 

‘‘development,’’ ‘‘production,’’ 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of 

certain rocket systems or unmanned 

aerial vehicles; 

* * * * * 

(v) The types of assurances or 

guarantees against design, 

‘‘development,’’ ‘‘production,’’ 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing for 

certain rocket system or unmanned 

aerial vehicle delivery purposes that are 

given in a particular case; and 

* * * * * 

■ 10. Section 744.4 is amended by 

revising paragraphs (a), (d)(1), (d)(2)(ii), 

and (d)(2)(iv) to read as follows: 

§ 744.4 Restrictions on certain chemical 

and biological weapons end-uses. 

(a) General prohibition. In addition to 

the license requirements for items 

specified on the CCL, you may not 

export, reexport, or transfer (in-country) 

an item subject to the EAR without a 

license if, at the time of export, reexport, 

or transfer (in-country) you know that 

the item will be used in the design, 

‘‘development,’’ ‘‘production,’’ 

stockpiling, operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of chemical or 

biological weapons in or by any country 

or destination, worldwide; or in the 

design, ‘‘development,’’ ‘‘production,’’ 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of a 

whole plant to make chemical weapons 

precursors specified in ECCN 1C350 in 

or by countries other than those listed 

in Country Group A:3 (Australia Group) 

(see supplement no. 1 to part 740 of the 

EAR). 

* * * * * 

(d) * * * 

(1) Applications to export, reexport, 

or transfer (in-country) items subject to 

this section will be considered on a 

case-by-case basis to determine whether 

the export, reexport, or transfer (incountry) would make a material 

contribution to the design, 

‘‘development,’’ ‘‘production,’’ 

stockpiling, operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of chemical or 

biological weapons. When an export, 

reexport, or transfer (in-country) is 

deemed to make such a contribution, 

the license will be denied. 

(2) * * * 

(ii) The significance of the export, 

reexport, or transfer in terms of its 

contribution to the design, 

‘‘development,’’ ‘‘production,’’ 

stockpiling, operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of chemical or 

biological weapons; 

* * * * * 

(iv) The types of assurances or 

guarantees against the design, 

‘‘development,’’ ‘‘production,’’ 

stockpiling, operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of chemical or 

biological weapons; and 

* * * * * 

■ 11. Section 744.6 is revised to read as 

follows: 

4872 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

§ 744.6 Restrictions on specific activities 

of ‘‘U.S. persons.’’ 

(a) Scope. The general prohibitions in 

this section apply only to the extent that 

the underlying activities are not subject 

to a license requirement or general 

prohibition administered by another 

federal department or agency, see, for 

example, Assistance to Foreign Atomic 

Energy Activities regulations (10 CFR 

part 810), administered by the 

Department of Energy; International 

Traffic in Arms Regulations (ITAR) (22 

CFR parts 120 through 130), 

administered by the Department of 

State; and certain sanctions regulations 

(to include, but not limited to, 31 CFR 

parts 500 through 599), administered by 

the Department of the Treasury. 

Accordingly, ‘‘U.S. persons’’ are 

required to seek a license from BIS only 

for the activities described in this 

section that are not subject to a license 

requirement or general prohibition 

administered by the Department of 

Energy, Department of State, 

Department of the Treasury, or other 

federal department or agency. The 

issuance of a license by BIS, or any 

other federal department or agency, 

does not authorize ‘‘U.S. persons’’ to 

engage in any activity that is otherwise 

prohibited by law, including criminal 

statutes. 

(b) General prohibitions. No ‘‘U.S. 

person’’ may, without a license from 

BIS, ‘support’: 

(1) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of nuclear 

explosive devices in or by any country 

not listed in supplement no. 3 to this 

part; 

(2) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of ‘‘missiles’’ 

in or by a country listed in Country 

Groups D:4 or E:2; 

(3) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing of chemical or 

biological weapons in or by any country 

or destination worldwide; 

(4) The design, ‘‘development,’’ 

‘‘production,’’ operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, refurbishing, shipment, or 

transfer (in-country) of a whole plant to 

make chemical weapons precursors 

identified in ECCN 1C350, in or by 

countries other than those listed in 

Country Group A:3 (Australia Group); or 

(5) A ‘military-intelligence end use’ or 

a ‘military-intelligence end user,’ as 

defined in § 744.22(f) of the EAR, in the 

People’s Republic of China, Russia, or 

Venezuela; or a country listed in 

Country Groups E:1 or E:2. 

(b)(6) ‘Support’ means: 

(i) Shipping or transmitting from one 

foreign country to another foreign 

country any item not subject to the EAR 

you know will be used in or by any of 

the end uses or end users described in 

paragraphs (b)(1) through (5) of this 

section, including the sending or taking 

of such item to or from foreign countries 

in any manner; 

(ii) Transferring (in-country) any item 

not subject to the EAR you know will 

be used in or by any of the end uses or 

end users described in paragraphs (b)(1) 

through (5) of this section; 

(iii) Facilitating such shipment, 

transmission, or transfer (in-country); or 

(iv) Performing any contract, service, 

or employment you know may assist or 

benefit any of the end uses or end users 

described in paragraphs (b)(1) through 

(5) of this section, including, but not 

limited to: Ordering, buying, removing, 

concealing, storing, using, selling, 

loaning, disposing, servicing, financing, 

transporting, freight forwarding, or 

conducting negotiations in furtherance 

of. 

(c) Additional prohibitions on ‘‘U.S. 

persons’’ informed by BIS. BIS may 

inform ‘‘U.S. persons,’’ either 

individually by specific notice, through 

amendment to the EAR published in the 

Federal Register, or through a separate 

notice published in the Federal 

Register, that a license is required 

because an activity could involve the 

types of ‘support’ (as defined in 

paragraph (b)(6) of this section) to the 

end uses or end users described in 

paragraphs (b)(1) through (5) of this 

section. Specific notice is to be given 

only by, or at the direction of, the 

Deputy Assistant Secretary for Export 

Administration. When such notice is 

provided orally, it will be followed by 

a written notice within two working 

days signed by the Deputy Assistant 

Secretary for Export Administration. 

However, the absence of any such 

notification does not excuse the ‘‘U.S. 

person’’ from compliance with the 

license requirements of paragraph (b) of 

this section. 

(d) Exceptions. (1) No License 

Exceptions apply to the prohibitions 

described in paragraphs (b)(1) through 

(4) of this section. 

(2) Notwithstanding the prohibitions 

in paragraph (b)(5) of this section, U.S. 

persons who are employees of a 

department or agency of the U.S. 

Government may ‘support’ a ‘militaryintelligence end use’ or a ‘militaryintelligence end user,’ as described in 

paragraph (b)(5), if the ‘support’ is 

provided in the performance of official 

duties in furtherance of a U.S. 

Government program that is authorized 

by law and subject to control by the 

President by other means. This 

paragraph does not authorize a 

department or agency of the U.S. 

Government to provide ‘support’ that is 

otherwise prohibited by other 

administrative provisions or by statute. 

‘Contractor support personnel’ of a 

department or agency of the U.S. 

Government are eligible for this 

authorization when in the performance 

of their duties pursuant to the 

applicable contract or other official 

duties. ‘Contractor support personnel’ 

for the purposes of this paragraph (d)(2) 

has the same meaning given to that term 

in § 740.11(b)(2)(ii) of the EAR. This 

authorization is not available when a 

department or agency of the U.S. 

Government acts as an agent on behalf 

of a non-U.S. Government person. 

(e) License review standards. (1) 

Applications for a U.S. person to 

‘support’ (as defined in paragraph (b)(6) 

of this section) any of the end uses or 

end users described in paragraphs (b)(1) 

through (4) of this section will be 

denied if such support would make a 

material contribution to the end uses 

and end users described in paragraphs 

(b)(1) through (4) of this section. 

(2) Applications for a U.S. person to 

‘support’ (as defined in paragraph (b)(6) 

of this section) a ‘military-intelligence 

end use’ or a ‘military-intelligence end 

user’ as described in paragraph (b)(5) of 

this section will be reviewed with a 

presumption of denial. 

■ 12. Section 744.11 is amended by 

adding a new paragraph (c) to read as 

follows: 

§ 744.11 License requirements that apply 

to entities acting contrary to the national 

security or foreign policy interests of the 

United States. 

* * * * * 

(c) Additional prohibition on persons 

informed by BIS. BIS may inform 

persons, either individually by specific 

notice or through amendment to the 

EAR, that a license is required for: 

(1) A specific export, reexport, or 

transfer (in-country) because there is an 

unacceptable risk that the export, 

reexport, or transfer (in-country) is 

intended to circumvent the license 

requirement imposed on an entity listed 

in supplement no. 4 to this part; or 

(2) The export, reexport, or transfer 

(in-country) of specified items to a 

certain party because there is an 

unacceptable risk that the party is acting 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 4873 

as an agent, front, or shell company for 

an entity listed in supplement no. 4 to 

this part, or is otherwise assisting that 

listed entity in circumventing the 

license requirement set forth in that 

entity’s entry in supplement no. 4 to 

this part. 

■ 13. Section 744.21 is amended by 

revising paragraph (g) to read as follows: 

§ 744.21 Restrictions on certain ‘military 

end use’ or ‘military end user’ in the 

People’s Republic of China, Russia, or 

Venezuela. 

* * * * * 

(g) Military end user. In this section, 

the term ‘military end user’ means the 

national armed services (army, navy, 

marine, air force, or coast guard), as well 

as the national guard and national 

police, government intelligence or 

reconnaissance organizations (excluding 

those described in § 744.22(f)(2) of the 

EAR), or any person or entity whose 

actions or functions are intended to 

support ‘military end uses’ as defined in 

paragraph (f) of this section. 

* * * * * 

■ 14. Section 744.22 is added to read as 

follows: 

§ 744.22 Restrictions on exports, 

reexports, and transfers (in-country) to 

certain military-intelligence end uses or end 

users. 

(a) General prohibition. In addition to 

the license requirements for items 

specified on the Commerce Control List 

(CCL), you may not export, reexport, or 

transfer (in-country) any item subject to 

the EAR without a license from BIS if, 

at the time of the export, reexport, or 

transfer (in-country), you have 

‘‘knowledge’’ that the item is intended, 

entirely or in part, for a ‘militaryintelligence end use’ or a ‘militaryintelligence end user’ in the People’s 

Republic of China, Russia, or Venezuela; 

or a country listed in Country Groups 

E:1 or E:2 (see supplement no. 1 to part 

740 of the EAR). 

(b) Additional prohibition on those 

informed by BIS. BIS may inform you 

either individually by specific notice, 

through amendment to the EAR 

published in the Federal Register, or 

through a separate notice published in 

the Federal Register, that a license is 

required for specific exports, reexports, 

or transfers (in-country) of any item 

subject to the EAR because there is an 

unacceptable risk of use in, or diversion 

to, a ‘military-intelligence end use’ or a 

‘military-intelligence end user’ in the 

People’s Republic of China, Russia, or 

Venezuela; or a country listed in 

Country Group E:1 or E:2 (see 

supplement no. 1 to part 740 of the 

EAR). 

(c) License exception. 

Notwithstanding the prohibitions 

described in paragraphs (a) and (b) of 

this section, you may export, reexport, 

or transfer (in-country) items subject to 

the EAR under the provision of License 

Exception GOV set forth in 

§ 740.11(b)(2)(ii) of the EAR. 

(d) License application procedure. 

When submitting a license application 

pursuant to this section, you must state 

in the ‘‘additional information’’ block of 

the application that ‘‘this application is 

submitted because of the license 

requirement in § 744.22 of the EAR 

(Restrictions on exports, reexports, and 

transfers (in-country) to certain militaryintelligence end uses or end users). In 

addition, either in the additional 

information block of the application or 

in an attachment to the application, you 

must include all known information 

concerning the military-intelligence end 

use(s) or end user(s) of the item(s). If 

you submit an attachment with your 

license application, you must reference 

the attachment in the ‘‘additional 

information’’ block of the application. 

(e) License review policy. 

Applications to export, reexport, or 

transfer (in-country) items requiring a 

license pursuant to paragraphs (a) or (b) 

of this section will be reviewed with a 

presumption of denial. 

(f) Definitions. (1) ‘Militaryintelligence end use’ means the design, 

‘‘development,’’ ‘‘production,’’ use, 

operation, installation (including on-site 

installation), maintenance (checking), 

repair, overhaul, or refurbishing of, or 

incorporation into, items described on 

the U.S. Munitions List (USML) (22 CFR 

part 121, International Traffic in Arms 

Regulations), or classified under ECCNs 

ending in ‘‘A018’’ or under ‘‘600 series’’ 

ECCNs, which are intended to support 

the actions or functions of a ‘militaryintelligence end user,’ as defined in this 

section. 

(2) ‘Military-intelligence end user’ 

means any intelligence or 

reconnaissance organization of the 

armed services (army, navy, marine, air 

force, or coast guard); or national guard. 

For license requirements applicable to 

other government intelligence or 

reconnaissance organizations in China, 

Russia, or Venezuela, see § 744.21 of the 

EAR. Military-intelligence end users 

subject to the license requirements set 

forth in this § 744.22 include, but are 

not limited to, the following: 

(i) Cuba. Directorate of Military 

Intelligence (DIM) and Directorate of 

Military Counterintelligence (CIM). 

(ii) China, People’s Republic of. 

Intelligence Bureau of the Joint Staff 

Department. 

(iii) Iran. Islamic Revolutionary Guard 

Corps Intelligence Organization (IRGC– 

IO) and Artesh Directorate for 

Intelligence (J2). 

(iv) Korea, North. Reconnaissance 

General Bureau (RGB). 

(v) Russia. Main Intelligence 

Directorate (GRU). 

(vi) Syria. Military Intelligence 

Service. 

(vii) Venezuela. General Directorate of 

Military Counterintelligence (DGCIM). 

Matthew S. Borman, 

Deputy Assistant Secretary for Export 

Administration. 

[FR Doc. 2021–00977 Filed 1–14–21; 8:45 am] 

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