56964 Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 

Issued in Renton, Washington, on August 

20, 2008. 

Kevin Hull, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. E8–20091 Filed 9–30–08; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 730, 732, 734, 736, 762 

and 774 

[Docket No. 071204798–81254–01] 

RIN 0694–AC17 

De Minimis U.S. Content in Foreign 

Made Items 

AGENCY: Bureau of Industry and 

Security, Commerce. 

ACTION: Interim final rule. 

SUMMARY: The Department of Commerce 

is revising the provisions of the Export 

Administration Regulations (EAR) that 

pertain to foreign-made items that 

incorporate controlled U.S.-origin items, 

i.e., the EAR’s ‘‘de minimis’’ rules. This 

rule amends the EAR to change the de 

minimis calculation for foreign 

produced hardware that is bundled with 

U.S.-origin software. This rule also 

clarifies the definition of ‘incorporate’ 

as it is applied to the de minimis rules 

and to the medical statement of 

understanding. This rule also removes 

the requirement to submit a one-time 

report to the Bureau of Industry and 

Security for foreign-made software that 

incorporates U.S.-origin software. In 

addition, this rule revises the ‘‘Steps for 

Using the EAR’’ and General Prohibition 

Two with regard to the de minimis rules 

in order to reduce redundancies in the 

EAR and harmonize the provisions with 

other revisions made by this rule. 

DATES: This rule is effective: October 1, 

2008. Comments must be received by 

December 1, 2008. 

ADDRESSES: Comments on this rule may 

be submitted to the Federal 

eRulemaking Portal at http:// 

www.regulations.gov (follow the 

instructions for submitting comments), 

by e-mail directly to BIS at 

publiccomments@bis.doc.gov (refer to 

regulatory identification number 0694– 

AC17 in the subject line), by fax at (202) 

482–3355, or on paper to Regulatory 

Policy Division, Office of Exporter 

Services, Bureau of Industry and 

Security, Room H2705, U.S. Department 

of Commerce, 14th Street and 

Pennsylvania Avenue, NW., 

Washington, DC 20230. Refer to 

Regulatory Identification Number (RIN) 

0694–AC17 in all comments. 

FOR FURTHER INFORMATION CONTACT: 

Sharron Cook, Office of Exporter 

Services, Bureau of Industry and 

Security, U.S. Department of Commerce 

at (202) 482–2440 or E-mail: 

scook@bis.doc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The term ‘‘de minimis’’ generally 

refers to matters that are of minor 

significance. The de minimis provisions 

of the EAR promote U.S. export control 

objectives as set forth in the Export 

Administration Act of 1979, as 

amended, while limiting U.S. 

jurisdiction over non-U.S. products 

containing a de minimis percentage, by 

value, of sensitive U.S. components. To 

prevent the diversion of controlled U.S. 

items and foreign made items 

incorporating a significant amount of 

U.S.-origin controlled content, a foreignmade item that contains more than the 

de minimis amount of controlled U.S.- 

origin content value is subject to the 

EAR, i.e., a license may be required 

from BIS for the export abroad to 

another foreign country or in-country 

transfer of the foreign-made item. Prior 

to March 1987, the EAR set no de 

minimis levels for U.S. content in 

foreign made items; foreign-made items 

were subject to the EAR if they 

contained any amount of U.S.-origin 

content, no matter how small. A rule 

published March 23, 1987 (52 FR 9147) 

revised what were then called the ‘‘parts 

and components’’ provisions to 

establish thresholds at which the 

amount of U.S.-origin commodities in 

foreign-made items would warrant 

exercise of U.S. jurisdiction over the 

foreign-made item when located outside 

the United States. The rule was 

established to alleviate a major trade 

dispute with allies who strenuously 

objected to U.S. assertion of jurisdiction 

over all reexports of non-U.S. items that 

contained even trivial amounts of U.S. 

content. A major revision of the EAR in 

1996 (61 FR 12714) introduced the term 

‘‘de minimis’’ and established de 

minimis thresholds for software and 

technology. The 1996 rule required a 

one-time report for software and 

technology, which had to be submitted 

before reexporters relied on the de 

minimis rules for such items, and it 

made no provision for the 

‘‘incorporation’’ of software into 

commodities. These provisions have not 

been significantly revised since 1996. 

The interested public has consistently 

expressed concerns about de minimis 

calculations and reporting requirements 

in requests for advisory opinions, 

industry meetings, Technical Advisory 

Committee (TAC) meetings, seminars 

(especially overseas), and at the annual 

Bureau of Industry and Security (BIS) 

Update conference. Both U.S. exporters 

and the foreign manufacturers who are 

their customers have said that 

determining the applicability of the de 

minimis rules is complicated and 

cumbersome. BIS recognizes that the 

export control objectives of the de 

minimis rules will be best served if 

those rules are clarified to facilitate 

compliance with them. 

Accordingly, BIS intends this revision 

of the EAR to facilitate compliance 

efforts by foreign manufacturers and 

respond to both advances in technology 

and how products are manufactured and 

sold in practice. Foreign manufacturers 

incorporating U.S. content must 

determine their obligations under U.S. 

export controls, in addition to those of 

their own countries, in order to prevent 

the diversion of controlled U.S. items to 

destinations and end-users that would 

be inimical to the national security or 

foreign policy interests of the United 

States. BIS recognizes that the heavier 

the compliance burden is, the greater 

the incentive to purchase content 

elsewhere. Modifying U.S. rules may 

reduce the pressure to ‘‘design out’’ U.S. 

origin items from foreign products, and 

thereby provide significant benefit to 

U.S. businesses while enabling BIS to 

continue exercising appropriate 

jurisdiction over foreign-made items 

incorporating controlled U.S. content. 

Paperwork Reduction Act Collection 

0694–0101 

This rule revises the title of 

Supplement No. 1 to part 730, as well 

as the entry for Paperwork Reduction 

Act collection number 0694–0101. The 

title corresponding to collection number 

0694–0101 is changed from ‘‘One-Time 

Report for Foreign Software or 

Technology Eligible for De Minimis 

Exclusion’’ to ‘‘One-Time Report for 

Foreign Technology Eligible for De 

Minimis Exclusion’’, because this rule 

removes the requirement to submit a 

one-time report on de minimis 

calculations for foreign software, but 

retains the requirement for foreign 

technology. The entry for 0694–0101 in 

the table is amended by adding 

Supplement No. 2 to part 734 to the 

related citation for this collection, 

because much of the detail about the 

required report is in Supplement No. 2 

to part 734 of the EAR. 

Part 732 ‘‘Steps for Using the EAR’’ 

This rule amends § 732.2 ‘‘Steps 

regarding scope of the EAR’’ by revising 


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Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 56965 

paragraph (d) ‘‘Step 4: Foreign-made 

items incorporating less than the de 

minimis level of U.S.-origin items’’ 

(revised title) and removing and 

reserving paragraph (e) ‘‘Step 5: Foreignmade items incorporating more than the 

de minimis level of U.S. parts, 

components, or materials.’’ Paragraph 

(d) is revised to avoid redundancies in 

the EAR by eliminating instructions, 

otherwise described in the newly 

modified Supplement No. 2 to part 734, 

for calculating the value of U.S.-origin 

content in a foreign item. Paragraph (d) 

is also revised to clarify instructions and 

modernize terminology regarding 

foreign-made items that incorporate 

U.S.-origin content. Paragraph (e) is 

removed and reserved, because Steps 4 

and 5 have been combined. 

This rule amends § 732.3 ‘‘Steps 

regarding the ten general prohibitions’’ 

by revising paragraph (e) ‘‘Step 10: 

Foreign-made items incorporating 

controlled U.S.-origin items and the de 

minimis rules.’’ This paragraph is 

revised to eliminate instructions, 

otherwise described in the newly 

modified Supplement No. 2 to part 734, 

for determining what constitutes 

‘controlled’ U.S.-origin content. This 

paragraph also clarifies instructions and 

modernizes terminology regarding 

foreign-made items that incorporate 

more than the de minimis level of U.S. 

content. This section has also been 

modified to reflect the fact that there are 

actually two de minimis rules described 

in part 734 of the EAR (rather than a 

single de minimis rule). 

Foreign-Made Items That Incorporate 

Controlled U.S.-Origin Items 

This rule amends § 734.3 ‘‘Items 

subject to the EAR’’ by revising 

paragraph (a)(3) regarding foreign-made 

items that incorporate controlled U.S.- 

origin items. The revisions to this 

section clarify which foreign produced 

items that incorporate controlled U.S.- 

origin items are subject to the EAR. This 

rule clarifies that foreign produced 

commodities that incorporate controlled 

U.S.-origin commodities, foreign 

produced commodities that are 

‘bundled’ with controlled U.S.-origin 

software, foreign produced software that 

is commingled with controlled U.S.- 

origin software, and foreign produced 

technology that is commingled with 

controlled U.S.-origin technology are 

subject to the EAR if the incorporated 

controlled U.S.-origin content exceeds 

the de minimis levels as defined in 

§ 734.4 of the EAR. Prior to the 

publication of this rule, the de minimis 

rules in the EAR did not allow U.S.- 

origin software to be counted as a part 

of a foreign commodity it was bundled 

with. Rather, calculations of U.S. 

content value were required to be 

performed separately for commodities, 

software, and technology. This change is 

in response to the way that systems and 

software are now being developed and 

delivered to customers. Furthermore, 

this change is necessary because 

software is such an integral part of the 

system in which the hardware and 

software work and is generally 

customized to work with a specific 

hardware product. 

This rule amends § 734.4 of the EAR 

to clarify the scope of the de minimis 

rules by adding the title ‘‘10% De 

Minimis Rule’’ to paragraph (c), and the 

title ‘‘25% De Minimis Rule’’ to 

paragraph (d). These two paragraphs, 

together with the exceptions they crossreference, encapsulate the ‘‘de minimis 

rules’’ that are referenced elsewhere in 

the EAR. This rule also amends 

paragraphs 734.4(c)(3) and 734.4(d)(3) of 

the EAR to clarify that there is a 

reporting requirement that must be 

fulfilled before the de minimis rules are 

relied upon for technology. The details 

of that reporting requirement are in 

Supplement No. 2 to part 734 of the 

EAR. As stated in more detail below, 

this reporting requirement previously 

existed for software and technology, but 

now only exists for technology. This 

requirement is more properly stated in 

the text of the de minimis rules rather 

than in the guidelines in Supplement 

No. 2 to part 734, where it was 

previously found. This rule also moves 

a caution regarding the applicability of 

Department of the Treasury, Office of 

Foreign Assets Control regulations to 

certain exports from abroad by persons 

subject to the jurisdiction of the United 

States (as defined therein) regardless of 

the de minimis rules in the EAR, from 

§ 732.3 of the EAR to a new 

subparagraph (a)(5) of § 734.4 of the 

EAR. This caution is also reworded 

slightly to adopt the term ‘‘persons 

subject to the jurisdiction of the United 

States’’, which is a defined term in the 

Foreign Assets Control Regulations, 31 

CFR. 500.329. 

In § 734.4 of the EAR, this rule 

removes paragraph (e) and (h), 

redesignates paragraphs (f) and (g) as 

paragraphs (e) and (f), respectively, and 

adds a new paragraph (g). Paragraph (e) 

was removed because the provisions in 

that paragraph were moved to 

Supplement No. 1 to part 734. 

Paragraph (h) was removed because the 

provisions in that paragraph were either 

moved to other paragraphs, or were 

otherwise redundant or outdated. The 

prior restriction on hot section 

technology that was in paragraph (h) is 

moved to paragraph (a) and amended to 

more clearly express BIS’s intent with 

regard to this restriction. This rule also 

corrects the citation in § 734.4 for hot 

section technology, which is covered by 

ECCN 9E003.a.1 through a.11 and .h 

instead of ECCN 9E003.a.1 through a.12 

and .f. The prior de minimis restriction 

on encryption software under ECCN 

5D002 in paragraph (h) contradicted the 

special provisions for this software 

found in paragraph (b), and was thus 

outdated. The prior de minimis 

restriction in paragraph (h) concerning 

encryption technology under ECCN 

5E002 repeated the restriction on the 

same technology in paragraph (a), and 

was therefore redundant. Only certain 

encryption items are eligible for de 

minimis treatment, and this rule does 

not change the scope of eligible 

encryption items nor the special 

requirements set forth in § 734.4(b) of 

the EAR for the application of de 

minimis to those items. As a reminder 

to the public, § 734.4(b)(1)(iii) of the 

EAR restricts foreign products that 

incorporate § 740.17(b)(2) EI software or 

hardware, or are bundled with 

§ 740.17(b)(2) EI software, from being 

exported from abroad to E:1 countries 

(see Supplement No. 1 to part 740 of the 

EAR). The new paragraph (g) sets forth 

a recordkeeping requirement for the 

method used to determine the 

percentage of U.S. content in foreign 

software or technology. This change is 

described in more detail below. 

Bundled Software 

The amendment to § 734.3 of the EAR 

described above introduces the concept 

of ‘bundled’ software, which will 

require de minimis calculations to 

include certain software within the 

calculated value of U.S. origin content 

in a foreign made commodity. 

Previously, calculations of U.S. content 

value were required to be performed 

separately for commodities, software, 

and technology. This interim rule will 

allow foreign made commodities 

‘bundled’ with de minimis amounts of 

U.S. origin software to become not 

subject to the EAR in many instances. 

This rule adds three notes to 

paragraph (c)(1) and to paragraph (d)(1) 

of § 734.4 of the EAR. The notes are 

substantively identical for each 

paragraph. The first note explains that 

U.S.-origin software (like hardware 

components) remains subject to the EAR 

when exported or reexported separately 

from (i.e., not incorporated or bundled 

with) a foreign-made commodity. 

Exports or reexports of software for 

additional users and upgrades of the 

software are considered separate exports 

or reexports of the software. 


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56966 Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 

The second note explains the meaning 

of ‘bundled’. The term ‘bundled’ refers 

to software that is configured for a 

specific commodity, but is not 

necessarily physically integrated into 

the commodity. For instance, printer 

driver software is generally not 

incorporated into a printer but is 

customarily delivered with the printer 

so that it may be loaded onto the 

computer to which it will be connected. 

The third note provides the scope of 

software that may be bundled with 

foreign-made commodities for the 

purposes of the de minimis rules set 

forth in §§ 734.4(c)(1) and 734.4(d)(1) of 

the EAR. Eligible software is software 

that is listed on the Commerce Control 

List (CCL) and is controlled for antiterrorism (AT) reasons or software that 

is designated EAR99 (subject to the 

EAR, but not listed on the CCL). 

Software that is listed on the CCL and 

does not require a license to the 

destination of a given foreign-made 

commodity is not considered 

‘‘controlled’’ for purposes of the 

shipment of that commodity and should 

not be included in de minimis 

calculations for that shipment. Software 

that does not meet these criteria will not 

be considered to be ‘bundled’ with any 

commodity for purposes of the de 

minimis rules. BIS is limiting bundling 

for software to that which is controlled 

for AT reasons because some software 

controlled for non-proliferation or 

national security reasons can be used to 

enhance the capabilities of equipment 

controlled for the same reasons. 

Supplement No. 2 to Part 734— 

Calculation of Values for De Minimis 

Rules 

Supplement No. 2 to part 734 is 

amended to clarify the guidelines for 

‘controlled’ U.S.-origin content and for 

determining content values for purposes 

of the de minimis rules. The supplement 

also is amended to clarify the definition 

of the term ‘incorporate’, and remove 

the reporting requirement for foreignmade software that incorporates a de 

minimis level of controlled U.S.-origin 

software. Further, this supplement will 

now be the sole reference point for 

persons seeking details on how to 

determine whether their foreign-made 

item is subject to the EAR on the basis 

of the de minimis rules in § 734.4. 

Previously, guidance on performing de 

minimis calculations, and specifically 

on identifying ‘controlled’ U.S.-origin 

content, was also contained in part 732 

of the EAR. 

This rule revises the term ‘controlled’ 

for the purpose of determining if the 

U.S.-origin content value should be 

counted in the de minimis percentage 

calculation. This explanation is a 

clarification of BIS’s existing 

interpretation. U.S.-origin content is 

considered controlled for the purpose of 

the de minimis rules when it requires a 

license to the intended ultimate country 

of destination of the foreign-made item. 

When making this license determination 

you should only use the Export Control 

Classification Number (ECCN) based on 

the Commerce Control List in 

Supplement No. 1 to part 774 of the 

EAR, the Commerce Country Chart in 

Supplement No. 1 to part 738 of the 

EAR, License Exception GBS (if 

applicable), and the special controls and 

embargo provisions in part 746 of the 

EAR. Note that items classified as 

EAR99 may be controlled content when 

going to some destinations. End-user 

and end-use provisions in part 744 of 

the EAR are not to be considered when 

determining if U.S.-origin content in a 

foreign-made item is controlled. This is 

because the de minimis rules are not 

intended to identify licensing 

requirements for the foreign-made item, 

but rather to identify whether the 

foreign-made item is subject to the EAR 

because it contains an amount of U.S. 

content that is significant not only in 

value, but also due to its sensitivity with 

regard to the intended ultimate country 

of destination. If it is determined the 

foreign-made item is subject to the EAR 

because of the percentage of controlled 

U.S.-origin content it contains, then the 

relevant provisions of the EAR 

(including end-use and end-user 

requirements) must be applied to the 

foreign-made item to make a license 

requirement determination. 

This rule clarifies the definition of 

‘‘incorporated’’ to be consistent with 

common business practices concerning 

the way equipment and systems are 

being sold today. In addition, the new 

definition is consistent with the way 

that classifications are performed in BIS 

and the way BIS interprets the export of 

a commodity. Previously, Supplement 

No. 2 to part 734 of the EAR stated only 

that the term ‘‘incorporated’’ did not 

include peripheral or accessory devices 

that were merely rack mounted with or 

cable connected into foreign equipment, 

even though intended for use with 

products made abroad. Under this new 

rule, U.S. items are ‘‘incorporated’’ 

when all of the following conditions are 

met: (1) They are essential to the 

functioning of the foreign equipment, 

(2) they are customarily included in the 

sale of foreign-made items, and (3) they 

are reexported with the foreign 

produced item. 

This rule removes the one-time 

reporting requirement for foreign-made 

software that incorporates controlled 

U.S.-origin software. From its inception, 

the one-time report was intended to be 

a temporary measure to verify that 

industry understood how to perform the 

de minimis calculation. BIS, as well as 

the Departments of Defense and State, 

have reviewed numerous one-time 

reports for foreign-made software, and 

have concluded that industry is 

performing the de minimis calculation 

correctly. Therefore, the one-time 

reporting requirement for foreign-made 

software is removed. However, the 

requirement for one-time reports for 

foreign-made technology that 

incorporate controlled U.S.-origin 

technology will not be removed at this 

time, because there has not been a 

sufficient number of these reports to 

verify that industry is performing these 

correctly and the scope and value of 

technology is more difficult to calculate. 

As stated above, the recordkeeping 

requirement for the method by which 

you determined the percentage of U.S. 

content in foreign software or 

technology is moved from Supplement 

No. 2 to part 734 to a new paragraph (g) 

in § 734.4 of the EAR, as requirements 

should be found in the main body 

related to de minimis rather than in the 

guidance for de minimis calculations 

found in Supplement No. 2 to part 734 

of the EAR. The recordkeeping 

requirement is also more clearly stated, 

explicitly cross-referencing the EAR’s 

general recordkeeping provision in part 

762. In addition, this rule adds a 

reference to § 734.4(g) in § 762.2(b) 

because this paragraph lists references 

to record retention requirements in the 

EAR. 

General Prohibition Two 

This rule amends General Prohibition 

two in part 736 of the EAR by revising 

the title, harmonizing the text with 

§ 734.4, and clarifying that foreign-made 

items that incorporate more than the de 

minimis amount of controlled U.S.- 

origin items are subject to all the 

provisions of the EAR and not just the 

license requirements indicated by the 

ECCN and the Commerce Country Chart. 

The title of General Prohibition two is 

amended to revise the parenthetical 

short title from ‘‘parts and components 

reexports’’ to ‘‘U.S.-content reexports,’’ 

in order to clarify that the de minimis 

rules apply to technology and software 

reexports, in addition to commodity 

reexports. 

Statement of Understanding—Medical 

Equipment 

This rule amends guidance on the 

Wassenaar Arrangement statement of 

understanding on medical equipment in 

Supplement No. 3 to part 774 by 


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Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 56967 

revising the note defining 

‘‘incorporate.’’ The revision harmonizes 

the definition of ‘‘incorporate’’ as it 

relates to U.S. commodities and 

software incorporated into medical 

equipment with the definition of 

‘‘incorporate’’ as it is applied to the de 

minimis rules in part 734 of the EAR. 

This new definition is consistent with 

common business practices concerning 

the way equipment and systems are 

being sold today. 

Although the Export Administration 

Act expired on August 20, 2001, the 

President, through Executive Order 

13222 of August 17, 2001, 3 CFR, 2001 

Comp., p. 783 (2002), as extended by the 

Notice of July 23, 2008, 73 FR 43603 

(July 25, 2008), has continued the 

Export Administration Regulations in 

effect under the International 

Emergency Economic Powers Act. 

Rulemaking Requirements 

1. This rule has been determined to be 

not significant for purposes of Executive 

Order 12866. 

2. Notwithstanding any other 

provision of law, no person is required 

to respond to nor 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 rule 

involves a collection of information that 

has been approved by the OMB under 

control number 0694–0088, ‘‘MultiPurpose Application,’’ which carries a 

burden hour estimate of 58 minutes to 

prepare and submit form BIS–748. 

Miscellaneous and recordkeeping 

activities account for 12 minutes per 

submission. This rule contains a 

collection that has been approved by the 

Office of Management and Budget under 

control number 0694–0101, which 

carries a burden hour estimate of 25 

hours. Send comments regarding these 

burden estimates or any other aspect of 

these collections of information, 

including suggestions for reducing the 

burden, to Jasmeet Seehra, OMB Desk 

Officer, by e-mail at 

jseehra@omb.eop.gov or by fax to (202) 

395–7285; and to the Regulatory Policy 

Division, Bureau of Industry and 

Security, Department of Commerce, 

14th & Pennsylvania Ave., NW., Room 

2705, Washington, DC 20230. 

3. This rule does not contain policies 

with Federalism implications as that 

term is defined under Executive Order 

13132. 

4. Pursuant to 5 U.S.C. 553(a)(1), this 

rule is exempt from the provision of the 

Administrative Procedure Act (5 U.S.C. 

553) (APA) requiring notice and an 

opportunity for public comment 

because this regulation involves a 

military and foreign affairs function of 

the United States. For the same reason, 

good cause exists to waive the 30-day 

delay in effectiveness otherwise 

required by the APA. Further, no other 

law requires that a notice of proposed 

rulemaking and an opportunity for 

public comment be given for this 

interim final rule. Accordingly, no 

regulatory flexibility analysis is required 

and none has been prepared. Although 

notice and opportunity for comment are 

not required, BIS is issuing this rule in 

interim final form and is seeking public 

comments on these revisions. The 

period for submission of comments will 

close December 1, 2008. BIS will 

consider all comments received before 

the close of the comment period in 

developing a final rule. Comments 

received after the end of the comment 

period will be considered if possible, 

but their consideration cannot be 

assured. BIS will not accept public 

comments accompanied by a request 

that a part or all of the material be 

treated confidentially because of its 

business proprietary nature or for any 

other reason. BIS will return such 

comments and materials to the persons 

submitting the comments and will not 

consider them in the development of the 

final rule. All public comments on this 

interim rule must be in writing 

(including fax or e-mail) and will be a 

matter of public record, available for 

public inspection and copying. The 

Office of Administration, Bureau of 

Industry and Security, U.S. Department 

of Commerce, displays these public 

comments on BIS’s Freedom of 

Information Act (FOIA) Web site at 

http://www.bis.doc.gov/foia. This office 

does not maintain a separate public 

inspection facility. If you have technical 

difficulties accessing this Web site, 

please call BIS’s Office of 

Administration at (202) 482–0953 for 

assistance. 

List of Subjects 

15 CFR Part 730 

Administrative practice and 

procedure, Advisory committees, 

Exports, Reporting and recordkeeping 

requirements, Strategic and critical 

materials. 

15 CFR Part 732 

Administrative practice and 

procedure, Exports, Reporting and 

recordkeeping requirements. 

15 CFR Part 734 

Administrative practice and 

procedure, Exports, Inventions and 

patents, Research Science and 

technology. 

15 CFR Part 736 

Exports. 

15 CFR Part 762 

Administrative practice and 

procedure, Business and industry, 

Confidential business information, 

Exports, Reporting and recordkeeping 

requirements. 

15 CFR Part 774 

Exports, Reporting and recordkeeping 

requirements. 

■ Accordingly, parts 730, 732, 734, 736, 

762 and 774 of the Export 

Administration Regulations (15 CFR 

parts 730–774) are amended as follows: 

PART 730—[AMENDED] 

■ 1. The authority citation for 15 CFR 

part 730 continues to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 

7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151 note; 

22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 

U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 

U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 

466c; 50 U.S.C. app. 5; 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. 12947, 60 FR 5079, 3 

CFR, 1995 Comp., p. 356; 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. 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; E.O. 13338, 69 FR 26751, May 13, 2004; 

Notice of July 23, 2008, 73 FR 43603 (July 25, 

2008); Notice of November 8, 2007, 72 FR 

63963 (November 13, 2007). 

Supplement No. 1 to Part 730 

[Amended] 

■ 2. Supplement No. 1 to part 730 is 

amended by: 

■ a. Revising the title for Collection 

Number 0694–0101 to read ‘‘One-Time 

Report For Foreign Technology Eligible 

For De Minimis Exclusion’’; and 

■ b. Revising the Reference in the EAR 

for Collection Number 0694–0101 to 

read ‘‘§ 734.4 and Supp. No. 2 to part 

734’’. 


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PART 732—[AMENDED] 

■ 3. The authority citation for 15 CFR 

part 732 is revised to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 

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

FR 44025, 3 CFR, 2001 Comp., p. 783; Notice 

of July 23, 2008, 73 FR 43603 (July 25, 2008). 

■ 4. Section 732.2 is amended by: 

■ a. Revising paragraph (d), as set forth 

below; and 

■ b. Removing and reserving paragraph 

(e). 

§ 732.2 Steps Regarding Scope of the 

EAR. 

* * * * * 

(d) Step 4: Foreign-made items 

incorporating controlled U.S.-origin 

items. This step is appropriate only for 

items that are made outside the United 

States and not currently located in the 

United States. Special requirements and 

restrictions apply to foreign-made items 

that incorporate U.S.-origin encryption 

items (see § 734.4(a)(2), (b), and (g) of 

the EAR). 

(1) Determining whether your foreign 

made item is subject to the EAR. Using 

the guidance provided in Supplement 

No. 2 to part 734 of the EAR, determine 

whether controlled U.S.-origin items are 

incorporated into the foreign-made item 

and are above the de minimis level set 

forth in § 734.4 of the EAR. 

(2) If no U.S.-origin controlled items 

are incorporated or if the percentage of 

incorporated U.S.-origin controlled 

items are equal to or below the de 

minimis level described in § 734.4 of the 

EAR, then the foreign-made item is not 

subject to the EAR by reason of the de 

minimis rules, and you should go on to 

consider Step 6 regarding the foreignproduced direct product rule. 

(3) If the foreign-made item 

incorporates more than the de minimis 

level of U.S.-origin items, then that item 

is subject to the EAR and you should 

skip to Step 7 at § 732.3 of this part and 

consider the steps regarding all other 

general prohibitions, license exceptions, 

and other requirements to determine 

applicability of these provisions to the 

foreign-made item. 

* * * * * 

■ 5. Section 732.3 is amended by 

revising paragraph (e), to read as 

follows: 

§ 732.3 Steps regarding the ten general 

prohibitions. 

* * * * * 

(e) Step 10: Foreign-made items 

incorporating controlled U.S.-origin 

items and the de minimis rules— (1) De 

minimis rules. If your foreign-made item 

abroad is a foreign-made commodity 

that incorporates controlled U.S.-origin 

commodities, a foreign-made 

commodity that is ‘bundled’ with 

controlled U.S.-origin software, foreignmade software that is commingled with 

controlled U.S.-origin software, or 

foreign-made technology that is 

commingled with controlled U.S.-origin 

technology, then it is subject to the EAR 

if the U.S.-origin controlled content 

exceeds the de minimis levels described 

in Sec. 734.4 of the EAR. 

(2) Guidance for calculations. For 

guidance on how to calculate the U.S.- 

controlled content, refer to Supplement 

No. 2 to part 734 of the EAR. Note, U.S.- 

origin technology controlled by ECCN 

9E003.a.1 through a.11, and .h, and 

related controls, and encryption 

software controlled for ‘‘EI’’ reasons 

under ECCN 5D002 (not eligible for de 

minimis treatment pursuant to 

§ 734.4(b) of the EAR) or encryption 

technology controlled for ‘‘EI’’ reasons 

under ECCN 5E002 (not eligible for de 

minimis treatment pursuant to 

§ 734.4(a)(2) of the EAR) do not lose 

their U.S.-origin when redrawn, used, 

consulted, or otherwise commingled 

abroad in any respect with other 

software or technology of any other 

origin. Therefore, any subsequent or 

similar software or technology prepared 

or engineered abroad for the design, 

construction, operation, or maintenance 

of any plant or equipment, or part 

thereof, which is based on or uses any 

such U.S.-origin software or technology 

is subject to the EAR. 

PART 734—[AMENDED] 

■ 6. The authority citation for 15 CFR 

part 734 is revised to read as follows: 

Authority: 50 U.S.C. app. 2401 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; Notice of July 23, 2008, 73 FR 

43603 (July 25, 2008); Notice of November 8, 

2007, 72 FR 63963 (November 13, 2007). 

■ 7–8. Section 734.3 is amended by 

revising paragraph (a)(3) to read as 

follows: 

§ 734.3 Items subject to the EAR. 

* * * * * 

(a) * * * 

(3) Foreign-made commodities that 

incorporate controlled U.S.-origin 

commodities, foreign-made 

commodities that are ‘bundled’ with 

controlled U.S.-origin software, foreignmade software that is commingled with 

controlled U.S.-origin software, and 

foreign-made technology that is 

commingled with controlled U.S.-origin 

technology: 

(i) In any quantity, as described in 

§ 734.4(a) of this part; or 

(ii) In quantities exceeding the de 

minimis levels, as described in 

§§ 734.4(c) or 734.4(d) of this part; 

* * * * * 

■ 9. Section 734.4 is amended by: 

■ a. Adding new paragraphs (a)(4) and 

(a)(5); 

■ b. Revising the introductory text of 

paragraph (c); 

■ c. Revising paragraph (c)(1) and 

adding notes to paragraph (c)(1); 

■ d. Adding a sentence to the end of 

paragraph (c)(3); 

■ e. Revising the introductory text of 

paragraph (d); 

■ f. Revising paragraph (d)(1) and 

adding notes to paragraph (d)(1); and 

■ g. Adding a sentence to the end of 

paragraph (d)(3); 

■ h. Removing paragraph (e); 

■ i Redesignating paragraphs (f) and (g) 

as paragraphs (e) and (f); 

■ j. Adding new paragraph (g); and 

■ k. Removing paragraph (h). 

The revisions and additions read as 

follows: 

§ 734.4 de minimis U.S. content. 

(a) * * * 

(4) There is no de minimis level for 

U.S.-origin technology controlled by 

ECCN 9E003a.1 through a.11, and .h. 

when redrawn, used, consulted, or 

otherwise commingled abroad. 

(5) Under certain rules issued by the 

Office of Foreign Assets Control, certain 

exports from abroad by U.S.-owned or 

controlled entities may be prohibited 

notwithstanding the de minimis 

provisions of the EAR. In addition, the 

de minimis rules do not relieve U.S. 

persons of the obligation to refrain from 

supporting the proliferation of weapons 

of mass-destruction and missiles as 

provided in § 744.6 of the EAR. 

* * * * * 

(c) 10% De Minimis Rule. Except as 

provided in paragraphs (a) and (b)(1)(iii) 

of this section and subject to the 

provisions of paragraphs (b)(1)(i), 

(b)(1)(ii) and (b)(2) of this section, the 

following reexports are not subject to 

the EAR when made to any country in 

the world. See Supplement No. 2 of this 

part for guidance on calculating values. 

(1) Reexports of a foreign-made 

commodity incorporating controlled 

U.S.-origin commodities or ‘‘bundled’’ 

with U.S.-origin software valued at 10% 

or less of the total value of the foreignmade commodity; 

NOTES to paragraph (c)(1): (1) U.S.-origin 

software is not eligible for the de minimis 

exclusion and is subject to the EAR when 


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Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 56969 

exported or reexported separately from (i.e., 

not bundled or incorporated with) the 

foreign-made item. 

(2) For the purposes of this section, 

‘bundled’ means software that is reexported 

together with the item and is configured for 

the item, but is not necessarily physically 

integrated into the item. 

(3) The de minimis exclusion under 

paragraph (c)(1) only applies to software that 

is listed on the Commerce Control List (CCL) 

and has a reason for control of anti-terrorism 

(AT) only or software that is designated as 

EAR99 (subject to the EAR, but not listed on 

the CCL). For all other software, an 

independent assessment of whether the 

software by itself is subject to the EAR must 

be performed. 

* * * * * 

(3) * * * Before you may rely upon 

the de minimis exclusion for foreignmade technology commingled with 

controlled U.S.-origin technology, you 

must file a one-time report. See 

Supplement No. 2 to part 734 for 

submission requirements. 

* * * * * 

(d) 25% De Minimis Rule. Except as 

provided in paragraph (a) of this section 

and subject to the provisions of 

paragraph (b) of this section, the 

following reexports are not subject to 

the EAR when made to countries other 

than those listed in Country Group E:1 

of Supplement No. 1 to part 740 of the 

EAR. See Supplement No. 2 to this part 

for guidance on calculating values. 

(1) Reexports of a foreign-made 

commodity incorporating controlled 

U.S.-origin commodities or ‘‘bundled’’ 

with U.S.-origin software valued at 25% 

or less of the total value of the foreignmade commodity; 

NOTES to paragraph (d)(1): (1) U.S.-origin 

software is not eligible for the de minimis 

exclusion and is subject to the EAR when 

exported or reexported separately from (i.e., 

not bundled or incorporated with) the 

foreign-made item. 

(2) For the purposes of this section, 

‘‘bundled’’ means software that is reexported 

together with the item and is configured for 

the item, but is not necessarily physically 

integrated into the item. 

(3) The de minimis exclusion under 

paragraph (d)(1) only applies to software that 

is listed on the Commerce Control List (CCL) 

and has a reason for control of anti-terrorism 

(AT) only or software that is classified as 

EAR99 (subject to the EAR, but not listed on 

the CCL). For all other software, an 

independent assessment of whether the 

software by itself is subject to the EAR must 

be performed. 

* * * * * 

(3) * * * Before you may rely upon 

the de minimis exclusion for foreignmade technology commingled with 

controlled U.S.-origin technology, you 

must file a one-time report. See 

Supplement No. 2 to part 734 for 

submission requirements. 

* * * * * 

(g) Recordkeeping requirement. The 

method by which you determined the 

percentage of U.S. content in foreign 

software or technology must be 

documented and retained in your 

records in accordance with the 

recordkeeping requirements in part 762 

of the EAR. Your records should 

indicate whether the values you used in 

your calculations are actual arms-length 

market prices or prices derived from 

comparable transactions or costs of 

production, overhead, and profit. 

■ 10. Supplement No. 2 to part 734 is 

revised to read as follows: 

SUPPLEMENT NO. 2 TO PART 734— 

GUIDELINES FOR DE MINIMIS 

RULES 

(a) Calculation of the value of controlled 

U.S.-origin content in foreign-made items is 

to be performed for the purposes of § 734.4 

of this part, to determine whether the 

percentage of U.S.-origin content is de 

minimis. (Note that you do not need to make 

these calculations if the foreign made item 

does not require a license to the destination 

in question.) Use the following guidelines to 

perform such calculations: 

(1) U.S.-origin controlled content. To 

identify U.S.-origin controlled content for 

purposes of the de minimis rules, you must 

determine the Export Control Classification 

Number (ECCN) of each U.S.-origin item 

incorporated into a foreign-made product. 

Then, you must identify which, if any, of 

those U.S.-origin items would require a 

license from BIS if they were to be exported 

or reexported (in the form in which you 

received them) to the foreign-made product’s 

country of destination. For purposes of 

identifying U.S.-origin controlled content, 

you should consult the Commerce Country 

Chart in Supplement No. 1 to part 738 of the 

EAR and controls described in part 746 of the 

EAR. Part 744 of the EAR should not be used 

to identify controlled U.S. content for 

purposes of determining the applicability of 

the de minimis rules. In identifying U.S.- 

origin controlled content, do not take account 

of commodities, software, or technology that 

could be exported or reexported to the 

country of destination without a license 

(designated as ‘‘NLR’’) or under License 

Exception GBS (see part 740 of the EAR). 

Commodities subject only to short supply 

controls are not included in calculating U.S. 

content. 

Note to paragraph (a)(1): U.S.-origin 

controlled content is considered 

‘incorporated’ for de minimis purposes if the 

U.S.-origin controlled item is: Essential to the 

functioning of the foreign equipment; 

customarily included in sales of the foreign 

equipment; and reexported with the foreign 

produced item. U.S.-origin software may be 

‘bundled’ with foreign produced 

commodities; see § 734.4 of this part. For 

purposes of determining de minimis levels, 

technology and source code used to design or 

produce foreign-made commodities or 

software are not considered to be 

incorporated into such foreign-made 

commodities or software. 

(2) Value of U.S.-origin controlled content. 

The value of the U.S.-origin controlled 

content shall reflect the fair market price of 

such content in the market where the foreign 

product is being produced. In most cases, 

this value will be the same as the actual cost 

to the foreign manufacturer of the U.S.-origin 

commodity, technology, or software. When 

the foreign manufacturer and the U.S. 

supplier are affiliated and have special 

arrangements that result in below-market 

pricing, the value of the U.S.-origin 

controlled content should reflect fair market 

prices that would normally be charged to 

unaffiliated customers in the same foreign 

market. If fair market value cannot be 

determined based upon actual arms-length 

transaction data for the U.S.-origin controlled 

content in question, then you must determine 

another reliable valuation method to 

calculate or derive the fair market value. 

Such methods may include the use of 

comparable market prices or costs of 

production and distribution. The EAR do not 

require calculations based upon any one 

accounting system or U.S. accounting 

standards. However, the method you use 

must be consistent with your business 

practice. 

(3) Foreign-made product value— (i) 

General. The value of the foreign-made 

product shall reflect the fair market price of 

such product in the market where the foreign 

product is sold. In most cases, this value will 

be the same as the actual cost to a buyer of 

the foreign-made product. When the foreign 

manufacturer and the buyer of their product 

are affiliated and have special arrangements 

that result in below-market pricing, the value 

of the foreign-made product should reflect 

fair market prices that would normally be 

charged to unaffiliated customers in the same 

foreign market. If fair market value cannot be 

determined based upon actual arms-length 

transaction data for the foreign-made product 

in question, then you must determine 

another reliable valuation method to 

calculate or derive the fair market value. 

Such methods may include the use of 

comparable market prices or costs of 

production and distribution. The EAR do not 

require calculations based upon any one 

accounting system or U.S. accounting 

standards. However, the method you use 

must be consistent with your business 

practice. 

(ii) Foreign-Made Software. In calculating 

the value of foreign-made software for 

purposes of the de minimis rules, you may 

make an estimate of future sales of that 

foreign software. The total value of foreignmade software will be the sum of: The value 

of actual sales of that software based on 

orders received at the time the foreign 

software incorporates U.S.-origin content 

and, if applicable; and an estimate of all 

future sales of that software. 

Note to paragraph (a)(3): Regardless of the 

accounting systems, standard, or conventions 

you use in the operation of your business, 

you may not depreciate reported fair market 

values or otherwise reduce fair market values 


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through related accounting conventions. 

Values may be historic or projected. 

However, you may rely on projected values 

only to the extent that they remain consistent 

with your documentation. 

(4) Calculating percentage value of U.S.- 

origin items. To determine the percentage 

value of U.S-origin controlled content 

incorporated in, commingled with, or 

‘‘bundled’’ with the foreign produced item, 

divide the total value of the U.S.-origin 

controlled content by the foreign-made item 

value, then multiply the resulting number 

times 100. If the percentage value of 

incorporated U.S.-origin items is equal to or 

less than the de minimis level described in 

§ 734.4 of the EAR, then the foreign-made 

item is not subject to the EAR. 

(b) One-time report. As stated in 

paragraphs (c) and (d) of § 734.4, a one-time 

report is required before reliance on the de 

minimis rules for technology. The purpose of 

the report is solely to permit the U.S. 

Government to evaluate whether U.S. content 

calculations were performed correctly. 

(1) Contents of report. You must include in 

your report a description of the scope and 

nature of the foreign technology that is the 

subject of the report and a description of its 

fair market value, along with the rationale 

and basis for the valuation of such foreign 

technology. Your report must indicate the 

country of destination for the foreign 

technology reexports when the U.S.-origin 

controlled content exceeds 10%, so that BIS 

can evaluate whether the U.S.-origin 

controlled content was correctly identified 

based on paragraph (a)(1) of this Supplement. 

The report does not require information 

regarding the end-use or end-users of the 

reexported foreign technology. You must 

include in your report the name, title, 

address, telephone number, E-mail address, 

and facsimile number of the person BIS may 

contact concerning your report. 

(2) Submission of report. You must submit 

your report to BIS using one of the following 

methods: 

(i) E-mail: rpd2@bis.doc.gov; 

(ii) Fax: (202) 482–3355; or 

(iii) Mail or Hand Delivery/Courier: 

Regulatory Policy Division, U.S. Department 

of Commerce, Bureau of Industry and 

Security, Regulatory Policy Division, 14th 

and Pennsylvania Avenue, NW., Room 2705, 

Washington, DC 20230. 

(3) Report and wait. If you have not been 

contacted by BIS concerning your report 

within thirty days after filing the report with 

BIS, you may rely upon the calculations 

described in the report unless and until BIS 

contacts you and instructs you otherwise. BIS 

may contact you with questions concerning 

your report or to indicate that BIS does not 

accept the assumptions or rationale for your 

calculations. If you receive such a contact or 

communication from BIS within thirty days 

after filing the report with BIS, you may not 

rely upon the calculations described in the 

report, and may not use the de minimis rules 

for technology that are described in § 734.4 

of this part, until BIS has indicated that such 

calculations were performed correctly. 

PART 736—[AMENDED] 

■ 11. The authority citation for 15 CFR 

part 736 continues to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; 22 U.S.C. 2151 note; 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, May 13, 2004; Notice of 

July 23, 2008, 73 FR 43603 (July 25, 2008); 

Notice of November 8, 2007, 72 FR 63963 

(November 13, 2007). 

■ 12. Section 736.2 is amended by 

revising the heading of paragraph (b)(2) 

and the introductory paragraph to 

(b)(2)(i) to read as follows: 

§ 736.2 General Prohibitions and 

Determination of Applicability. 

* * * * * 

(b) * * * 

(2) General Prohibition Two— 

Reexport and export from abroad of 

foreign-made items incorporating more 

than a de minimis amount of controlled 

U.S. content (U.S. Content Reexports). 

(i) You may not, without a license or 

license exception, reexport or export 

from abroad foreign-made commodities 

that incorporate controlled U.S.-origin 

commodities, foreign-made 

commodities that are ‘‘bundled’’ with 

controlled U.S.-origin software, foreignmade software that is commingled with 

controlled U.S.-origin software, or 

foreign-made technology that is 

commingled with controlled U.S.-origin 

technology if such items require a 

license according to any of the 

provisions in the EAR and incorporate 

or are commingled with more than a de 

minimis amount of controlled U.S. 

content, as defined in § 734.4 of the EAR 

concerning the scope of the EAR. 

* * * * * 

PART 762—[AMENDED] 

■ 13. The authority citation for 15 CFR 

part 762 is revised to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 

3 CFR, 2001 Comp., p. 783; Notice of July 23, 

2008, 73 FR 43603 (July 25, 2008). 

■ 14. Section 762.2 is amended by: 

■ a. Revising paragraphs (b)(44) and 

(b)(45); and 

■ b. Adding a new paragraph (b)(46), to 

read as follows: 

§ 762.2 Records to be retained. 

* * * * * 

(b) * * * 

(44) § 745.2, End-use certificates; 

(45) § 758.2(c), Assumption writing; 

and 

(46) § 734.4(g), de minimis calculation 

(method). 

* * * * * 

PART 774—[AMENDED] 

■ 15. The authority citation for 15 CFR 

part 774 continues to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 

7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 

seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 

42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 

1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; 

22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783; Notice of July 23, 2008, 73 FR 

43603 (July 25, 2008). 

■ 16. Supplement No. 3 to part 774 is 

amended by revising Note 2 to read as 

follows: 

SUPPLEMENT NO. 3 TO PART 774— 

STATEMENTS OF UNDERSTANDING 

* * * * * 

Notes applicable to State of Understanding 

related to Medical Equipment: 

* * * * * 

(2) Commodities or software are considered 

‘‘incorporated’’ if the commodity or software 

is: Essential to the functioning of the medical 

equipment; customarily included in the sale 

of the medical equipment; and exported or 

reexported with the medical equipment. 

* * * * * 

Dated: September 25, 2008. 

Christopher R. Wall, 

Assistant Secretary for Export 

Administration. 

[FR Doc. E8–23142 Filed 9–30–08; 8:45 am] 

BILLING CODE 3510–33–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[ME–064–7013a; A–1–FRL–8719–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; Revised 

Format for Materials Being 

Incorporated by Reference for Maine 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; notice of 

administrative change. 

SUMMARY: EPA is revising the format of 

40 CFR part 52 for materials submitted 

by the State of Maine that are 

incorporated by reference (IBR) into its 

State Implementation Plan (SIP). The 

regulations affected by this format 

change have all been previously 

submitted by Maine and approved by 

EPA. 


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