  Dec. 18, 2019

      Title 15
      Commerce and Foreign Trade
      Parts 300 to 799
      Revised as of January 1, 2020
      Containing a codification of documents of general applicability and future effect
      As of January 1, 2020

        Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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      Table of Contents
      Page

        Explanation
        v

        Title 15:

          SUBTITLE B—Regulations Relating to Commerce and Foreign Trade (Continued)

          Chapter III—International Trade Administration, Department of Commerce
          5

          Chapter IV—Foreign-Trade Zones Board, Department of Commerce
          57

          Chapter VII—Bureau of Industry and Security, Department of Commerce
          89

        Finding Aids:
        Table of CFR Titles and Chapters
        1145
        Alphabetical List of Agencies Appearing in the CFR
        1165
        List of CFR Sections Affected
        1175

      Cite this Code: CFR

      To cite the regulations in this volume use title, part and section number. Thus, 15 CFR 301.1 refers to title 15, part 301, section 1.

      Explanation
      The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
      Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

        Title 1 through Title 16
        as of January 1
        Title 17 through Title 27
        as of April 1
        Title 28 through Title 41
        as of July 1
        Title 42 through Title 50
        as of October 1

      The appropriate revision date is printed on the cover of each volume.

        LEGAL STATUS
        The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).

        HOW TO USE THE CODE OF FEDERAL REGULATIONS
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        EFFECTIVE AND EXPIRATION DATES
        Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.

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        “[RESERVED]” TERMINOLOGY
        The term “[Reserved]” is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a “[Reserved]” location at any time. Occasionally “[Reserved]” is used editorially to indicate that a portion of the CFR was left vacant and not dropped in error.

        INCORPORATION BY REFERENCE

          What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

          What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:
        (a) The incorporation will substantially reduce the volume of material published in the Federal Register.
        (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.
        (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

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        REPUBLICATION OF MATERIAL
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        INQUIRIES
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        ELECTRONIC SERVICES

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        The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Publishing Office. It is available at www.ecfr.gov.

          Oliver A. Potts,

          Director,

          Office of the Federal Register

          January 1, 2020

      THIS TITLE
      Title 15—Commerce and Foreign Trade is composed of three volumes. The parts in these volumes are arranged in the following order: Parts 0-299, 300-799, and part 800-End. The first volume containing parts 0-299 is comprised of Subtitle A—Office of the Secretary of Commerce, Subtitle B, chapter I—Bureau of the Census, Department of Commerce, and chapter II—National Institute of Standards and Technology, Department of Commerce. The second volume containing parts 300-799 is comprised of chapter III—International Trade Administration, Department of Commerce, chapter IV—Foreign-Trade Zones Board, and chapter VII—Bureau of Industry and Security, Department of Commerce. The third volume containing part 800-End is comprised of chapter VIII—Bureau of Economic Analysis, Department of Commerce, chapter IX—National Oceanic and Atmospheric Administration, Department of Commerce, chapter XI—Technology Administration, Department of Commerce, chapter XIII—East-West Foreign Trade Board, chapter XIV—Minority Business Development Agency, chapter XX—Office of the United States Trade Representative, and chapter XXIII—National Telecommunications and Information Administration, Department of Commerce. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2020.
      For this volume, Ann Worley was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez, assisted by Stephen J. Frattini.

        Title 15—Commerce and Foreign Trade
        (This book contains parts 300 to 799)

          SUBTITLE B—Regulations Relating to Commerce and Foreign Trade (Continued)

        Part

            chapter iii—International Trade Administration, Department of Commerce
          301

            chapter iv—Foreign-Trade Zones Board, Department of Commerce
          400

            chapter vii—Bureau of Industry and Security, Department of Commerce
          700

      Subtitle B—Regulations Relating to Commerce and Foreign Trade (Continued)

        15 CFR Ch. III (1-1-20 Edition)
        International Trade Admin., Commerce

            CHAPTER III—INTERNATIONAL TRADE ADMINISTRATION, DEPARTMENT OF COMMERCE

            SUBCHAPTER A—MISCELLANEOUS REGULATIONS

          Part
          Page

            300
            [Reserved]
            301
            Instruments and apparatus for educational and scientific institutions
            7
            302
            [Reserved]
            303
            Watches, watch movements and jewelry program
            20
            310
            Official U.S. Government recognition of and participation in international expositions held in the United States
            41
            315
            [Reserved]
            325
            Export trade certificates of review
            46
            326-399
            [Reserved]

          SUBCHAPTER A—MISCELLANEOUS REGULATIONS

            PART 300 [RESERVED]

            Pt. 301
            PART 301—INSTRUMENTS AND APPARATUS FOR EDUCATIONAL AND SCIENTIFIC INSTITUTIONS

              Sec.
              301.1
              General provisions.
              301.2
              Definitions.
              301.3
              Application for duty-free entry of scientific instruments.
              301.4
              Processing of applications by the Department of the Treasury (Customs and Border Protection).
              301.5
              Processing of applications by the Department of Commerce.
              301.6
              Appeals.
              301.7
              Final disposition of an application.
              301.8
              Instructions for entering instruments through Customs and Border Protection under subheading 9810.00.60, HTSUS.
              301.9
              Uses and disposition of instruments entered under subheading 9810.00.60, HTSUS.
              301.10
              Importation of repair components and maintenance tools under HTSUS subheadings 9810.00.65 and 9810.00.67 for instruments previously the subject of an entry liquidated under subheading 9810.00.60, HTSUS.

              Authority:
              Sec. 6(c), Pub. L. 89-651, 80 Stat. 897, 899; Sec. 2402, Pub. L. 106-36, 113 Stat. 127, 168; 19 U.S.C. 1514(c)(3)); and Presidential Proclamation 7011, signed on June 30, 1997.

              Source:
              47 FR 32517, July 28, 1982, unless otherwise noted.

              § 301.1
              General provisions.
              (a) Purpose. This part sets forth the regulations of the Department of Commerce and the Department of the Treasury applicable to the duty-free importation of scientific instruments and apparatus by public or private nonprofit institutions.
              (b) Background. (1) The Agreement on the importation of Educational, Scientific and Cultural Materials (Florence Agreement; “the Agreement”) is a multinational treaty, which seeks to further the cause of peace through the freer exchange of ideas and knowledge across national boundaries, primarily by eliminating tariffs on certain educational, scientific and cultural materials.
              (2) Annex D of the Agreement provides that scientific instruments and apparatus intended exclusively for educational purposes or pure scientific research use by qualified nonprofit institutions shall enjoy duty-free entry if instruments or apparatus of equivalent scientific value are not being manufactured in the country of importation.
              (3) The Annex D provisions are implemented for U.S. purposes in Subchapter X, Chapter 98, Harmonized Tariff Schedule of the United States (HTSUS).
              (c) Summary of statutory procedures and requirements. (1) U.S. Note 1, Subchapter X, Chapter 98, HTSUS, provides, among other things, that articles covered by subheadings 9810.00.60 (scientific instruments and apparatus), 9810.00.65 (repair components therefor) and 9810.00.67 (tools for maintaining and testing the above), HTSUS, must be exclusively for the use of the institutions involved and not for distribution, sale, or other commercial use within five years after entry. These articles may be transferred to another qualified nonprofit institution, but any commercial use within five years of entry shall result in the assessment of applicable duties pursuant to § 301.9(c).

              (2) An institution wishing to enter an instrument or apparatus under tariff subheading 9810.00.60, HTSUS, must file an application with the Customs and Border Protection in accordance with the regulations in this section. If the application is made in accordance with the regulations, notice of the application is published in the Federal Register to provide an opportunity for interested persons and government agencies to present views. The application is reviewed by the Secretary of Commerce (Director, Statutory Import Programs Staff) , who decides whether or not duty-free entry may be accorded the instrument and publishes the decision in the Federal Register. An appeal of the final decision may be filed with the U.S. Court of Appeals for the Federal Circuit, on questions of law only, within 20 days after publication in the Federal Register.

              (3) Repair components for instruments or apparatus admitted duty-free under subheading 9810.00.60, HTSUS require no application and may be entered duty-free in accordance with the procedures prescribed in § 301.10.
              (4) Tools specifically designed to be used for the maintenance, checking, gauging or repair of instruments or apparatus admitted under subheadings 9810.00.65 and 9810.00.67, HTSUS, require no application and may be entered duty-free in accordance with the procedures prescribed in § 301.10.
              (d) Authority and delegations. The Act authorizes the Secretaries of Commerce and the Treasury to prescribe joint regulations to carry out their functions under U.S. Note 6, Subchapter X, Chapter 98, HTSUS. The Secretary of the Treasury has delegated authority to the Assistant Secretary for Enforcement, who has retained rulemaking authority and further delegated administration of the regulations to the Commissioner of the Customs and Border Protection. The authority of the Secretary of Commerce has been delegated to the Assistant Secretary for Enforcement and Compliance who has retained rulemaking authority and further delegated administration of the regulations to the Director of the Statutory Import Programs Staff.
              [47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982, as amended at 66 FR 28832, May 25, 2001; 74 FR 30463, June 26, 2009; 78 FR 72571, Dec. 3, 2013]

              § 301.2
              Definitions.
              For the purposes of these regulations and the forms used to implement them:
              (a) Director means the Director of the Statutory Import Programs Staff, International Trade Administration, U.S. Department of Commerce.
              (b) The Commissioner means Commissioner of Customs and Border Protection, or the official(s) designated to act on the Commissioner's behalf.
              (c) CBP Port” or the Port means the port where a particular claim has been or will be made for duty-free entry of a scientific instrument or apparatus under subheading 9810.00.60, HTSUS.
              (d) Entry means entry of an instrument into the Customs territory of the United States for consumption or withdrawal of an instrument from a Customs bonded warehouse for consumption.
              (e) United States includes only the several States, the District of Columbia and the Commonwealth of Puerto Rico.
              (f) Instrument means instruments and apparatus specified in U.S. Note 6(a), Subchapter X, Chapter 98, HTSUS. A combination of basic instrument or apparatus and accompanying accessories shall be treated as a single instrument provided that, under normal commercial practice, such combination is considered to be a single instrument and provided further that the applicant has ordered or, upon favorable action on its application, firmly intends to order the combination as a unit. The term “instrument” also covers separable components of an instrument that are imported for assembly in the United States in such instrument where that instrument, due to its size, cannot feasibly be imported in its assembled state. The components, as well as the assembled instrument itself, must be classifiable under the tariff provisions listed in U.S. Note 6(a), Subchapter X, Chapter 98, HTSUS. See paragraph (k) of this section and § 301.3(f). Unless the context indicates otherwise, instrument or apparatus shall mean a foreign “instrument or apparatus” for which duty-free entry is sought under subheading 9810.00.60, HTSUS. Spare parts typically ordered and delivered with an instrument are also considered part of an instrument for purposes of these regulations. The term “instruments” shall not include:
              (1) Materials or supplies used in the operation of instruments and apparatus such as paper, cards, tapes, ink, recording materials, expendable laboratory materials, apparatus that loses identity or is consumed by usage or other materials or supplies.

              (2) Ordinary equipment for use in building construction or maintenance; or equipment for use in supporting activities of the institution, such as its administrative offices, machine shops, libraries, centralized computer facilities, eating facilities, or religious facilities; or support equipment such as copying machines, glass working apparatus and film processors.

              (3) General purpose equipment such as air conditioners, electric typewriters, electric drills, refrigerators.
              (4) General-purpose computers. Accessories to computers which are not eligible for duty-free treatment are also ineligible. Scientific instruments containing embedded computers which are to be used in a dedicated process or in instrument control, as opposed to general data processing or computation, are, however, eligible for duty-free consideration.
              (5) Instruments initially imported solely for testing or review purposes which were entered under bond under subheading 9813.00.30, HTSUS, subject to the provisions of U.S. Note 1(a), Subchapter XIII, Chapter 98, HTSUS, and must be exported or destroyed within the time period specified in that U.S. Note.
              (g) Domestic instrument means an instrument which is manufactured in the United States. A domestic instrument need not be made exclusively of domestic components or accessories.
              (h) Accessory has the meaning which it has under normal commercial usage. An accessory, whether part of an instrument or an attachment to an instrument, adds to the capability of an instrument. An accessory for which duty-free entry is sought under subheading 9810.00.60, HTSUS shall be the subject of a separate application when it is not an accompanying accessory. The existing instrument, for which the accessory is being purchased, may be domestic or, if foreign, it need not have entered duty free under subheading 9810.00.60, HTSUS.
              (i) Accompanying accessory means an accessory for an instrument that is listed as an item in the same purchase order and that is necessary for accomplishment of the purposes for which the instrument is intended to be used.
              (j) Ancillary equipment means an instrument which may be functionally related to the foreign instrument but is not operationally linked to it. Examples of ancillary equipment are vacuum evaporators or ultramicrotomes, which can be used to prepare specimens for electron microscopy. Further, equipment which is compatible with the foreign instrument, but is also clearly compatible with similar domestic instruments, such as a vacuum evaporator sold for use with an electron microscope, will be treated as ancillary equipment. A separate application will be required for ancillary equipment even if ordered with the basic instrument.
              (k) Components of an instrument means parts or assemblies of parts which are substantially less than the instrument to which they relate. A component enables an instrument to function at a specified minimum level, while an accessory adds to the capability of an instrument. Applications shall not be accepted for components of instruments that did not enter duty-free under subheading 9810.00.60, HTSUS or for components of instruments being manufactured or assembled by a commercial firm or entity in the U.S. In determining whether an item is a component ineligible for duty-free consideration or an accessory eligible for such consideration, Customs and Border Protection shall take into account such factors as the item's complexity, novelty, degree of integration and pertinency to the research purposes to be performed by the instrument as a whole. The above notwithstanding, separable components of some instruments may be eligible for duty-free treatment. See paragraph (f) of this section.
              (l) Produced for stock means an instrument which is manufactured, on sale and available from a stock.
              (m) Produced on order means an instrument which a manufacturer lists in current catalog literature and is able and willing to produce and have available without unreasonable delay to the applicant.
              (n) Custom-made means an instrument which a manufacturer is willing and able to make to purchaser's specifications. Instruments resulting from a development effort are treated as custom-made for the purposes of these regulations. Also, a special-order variant of a produced on order instrument, with significant modifications specified by the applicant, may be treated as custom-made.
              (o) Same general category means the category in which an instrument is customarily classified in trade directories and product-source lists, e.g., scanning electron microscope, light microscope.
              (p) Comparable domestic instrument means a domestic instrument capable or potentially capable of fulfilling the applicant's technical requirements or intended uses, whether or not in the same general category as the foreign instrument.
              (q) Specifications means the particulars of the structural, operational and performance characteristics or capabilities of a scientific instrument.
              (r) Guaranteed specifications are those specifications which are an explicit part of the contractual agreement between the buyer and the seller (or which would become part of the agreement if the buyer accepted the seller's offer), and refer only to the minimum and routinely achievable performance levels of the instrument under specified conditions. If a capability is listed or quoted as a range (e.g., “5 to 10 nanometers”) or as a minimum that may be exceeded (e.g., “5 angstroms or better”), only the inferior capability may be considered the guaranteed specification. Evidence that specifications are “guaranteed” will normally consist of their being printed in a brochure or other descriptive literature of the manufacturer; being listed in a purchase agreement upon which the purchase is conditioned; or appearing in a manufacturer's formal response to a request for quote. If, however, no opportunity to submit a bid was afforded the domestic manufacturer or if, for any other reason, comparable guaranteed specifications of the foreign and domestic instruments do not appear on the record, other evidence relating to a manufacturer's ability to provide an instrument with comparable specifications may, at the discretion of the Director, be considered in the comparison of the foreign and domestic instruments' capabilities. Performance results on a test sample run at the applicant's request may be cited as evidence for or against a guaranteed specification.
              (s) Pertinent specifications are those specifications necessary for the accomplishment of the specific scientific research or science-related educational purposes described by the applicant. Specifications of features (even if guaranteed) which afford greater convenience, satisfy personal preferences, accommodate institutional commitments or limitations, or assure lower costs of acquisition, installation, operation, servicing or maintenance are not pertinent. For example, a design feature, such as a small number of knobs or controls on an instrument primarily designed for research purposes, would be a convenience. The ability to fit an instrument into a small room, when the required operations could be performed in a larger room, would be either a cost consideration or a matter of convenience and not a pertinent specification. In addition, mere difference in design (which would, for example, broaden the educational experience of students but not provide superior scientific capability) would not be pertinent. Also, characteristics such as size, weight, appearance, durability, reliability, complexity (or simplicity), ease of operation, ease of maintenance, productivity, versatility, “state of the art” design, specific design and compatibility with currently owned or ordered equipment are not pertinent unless the applicant demonstrates that the characteristic is necessary for the accomplishment of its scientific purposes.
              [47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982, as amended at 66 FR 28832, May 25, 2001; 74 FR 30463, June 26, 2009]

              § 301.3
              Application for duty-free entry of scientific instruments.
              (a) Who may apply. An applicant for duty-free entry of an instrument under subheading 9810.00.60, HTSUS must be a public or private nonprofit institution which is established for educational or scientific purposes and which has placed a bona fide order or has a firm intention to place a bona fide order for a foreign instrument within 60 days following a favorable decision on the institution's application.
              (b) Application forms. Applications must be made on form ITA-338P which may be obtained from the Statutory Import Programs Staff, International Trade Administration, U.S. Department of Commerce, Washington, DC 20230, the Web site at http://ia.ita.doc.gov/sips/index.html, or from the various District Offices of the U.S. Department of Commerce.
              (c) Where to apply. Applications must be filed with the U.S. Customs and Border Protection, at the address specified on page 1 of the form.
              (d) Five copies of the form, including relevant supporting documents, must be submitted. One of these copies shall be signed in the original by the person in the applicant institution under whose direction and control the foreign instrument will be used and who is familiar with the intended uses of the instrument. The remaining four copies of the form may be copies of the original. Attachments should be fully identified and referenced to the question(s) on the form to which they relate.
              (e) A single application (in the requisite number of copies) may be submitted for any quantity of the same type or model of foreign instrument provided that the entire quantity is intended to be used for the same purposes and provided that all units are included on a single purchase order. A separate application shall be submitted for each different type or model or variation in the type or model of instrument for which duty-free entry is sought even if covered by a single purchase order. Orders calling for multiple deliveries of the same type or model of instrument over a substantial period of time may, at the discretion of the Director, require multiple applications.
              (f) An application for components of an instrument to be assembled in the United States as described in § 301.2(f) may be filed provided that all of the components for the complete, assembled instrument are covered by, and fully described in, the application. See also § 301.2(k).
              (g) Failure to answer completely all questions on the form in accordance with the instructions on the form or to supply the requisite number of copies of the form and supporting documents may result in delays in processing of the application while the deficiencies are remedied, return of the application without processing, or denial of the application without prejudice to resubmission. Any questions on these regulations or the application form should be addressed to the Director.
              (Approved by the Office of Management and Budget under control number 0625-0037)
              [47 FR 32517, July 28, 1982, as amended at 50 FR 11501, Mar. 22, 1985; 66 FR 28833, May 25, 2001; 74 FR 30463, June 26, 2009]

              § 301.4
              Processing of applications by the Department of the Treasury (Customs and Border Protection).
              (a) Review and determination. The Commissioner shall date each application when received by Customs and Border Protection. If the application appears to be complete, the Commissioner shall determine:
              (1) Whether the institution is a nonprofit private or public institution established for research and educational purposes and therefore authorized to import instruments into the U.S. under subheading 9810.00.60, HTSUS. In making this determination, the Commissioner may require applicants to document their eligibility under this paragraph;
              (2) Whether the instrument or apparatus falls within the classes of instruments eligible for duty-free entry consideration under subheading 9810.00.60, HTSUS. For eligible classes, see U.S. Note 6(a), Subchapter X, Chapter 98, HTSUS; and

              (3) Whether the instrument or apparatus is for the exclusive use of the applicant institution and is not intended to be used for commercial purposes. For the purposes of this section, commercial uses would include, but not necessarily be limited to: Distribution, lease or sale of the instrument by the applicant institution; any use by, or for the primary benefit of, a commercial entity; or use of the instrument for demonstration purposes in return for a fee, price discount or other valuable consideration. Evaluation, modification or testing of the foreign instrument, beyond normal, routine acceptance testing and calibration, to enhance or expand its capabilities primarily to benefit the manufacturer in return for a discount or other valuable consideration, may be considered a commercial benefit. In making the above determination, the Commissioner may consider, among other things, whether the results of any research to be performed with the instrument will be fully and timely made available to the public. For the purposes of this section, use of an instrument for the treatment of patients is considered noncommercial.

                If any of the Commissioner's determinations is in the negative, the application shall be found to be outside the scope of the Act and shall be returned to the applicant with a statement of the reason(s) for such findings.

              (b) Forwarding of applications to the Department of Commerce. If the Commissioner finds the application to be within the scope of the Act and these regulations, the Commissioner shall (1) assign a number to the application and (2) forward one copy to the Secretary of the Department of Health and Human Services (HHS), and two copies, including the one that has been signed in the original, to the Director. The Commissioner shall retain one copy and return the remaining copy to the applicant stamped “Accepted for Transmittal to the Department of Commerce.” The applicant shall file the stamped copy of the form with the Port when formal entry of the article is made. If entry has already occurred under a claim of subheading 9810.00.60, HTSUS , the applicant (directly or through his/her agent) shall at the earliest possible date supply the stamped copy to the Port. Further instructions for entering instruments are contained in § 301.8 of the regulations.
              [47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982, as amended at 50 FR 11501, Mar. 22, 1985; 66 FR 28833, May 25, 2001; 74 FR 30463, June 26, 2009]

              § 301.5
              Processing of applications by the Department of Commerce.
              (a) Public notice and opportunity to present views. (1) Within 5 days of receipt of an application from the Commissioner, the Director shall make a copy available for public inspection during ordinary business hours of the Department of Commerce. Unless the Director determines that an application has deficiencies which preclude consideration on its merits (e.g., insufficient description of intended purposes to rule on the scientific equivalency of the foreign instrument and potential domestic equivalents), he shall publish in the Federal Register a notice of the receipt of the application to afford all interested persons a reasonable opportunity to present their views with respect to the question “whether an instrument or apparatus of equivalent scientific value for the purpose for which the article is intended to be used is being manufactured in the United States.” The notice will include the application number, the name and address of the applicant, a description of the instrument(s) for which duty-free entry is requested, the name of the foreign manufacturer and a brief summary of the applicant's intended purposes extracted from the applicant's answer to question 7 of the application. In addition, the notice shall specify the date the application was accepted by the Commissioner for transmittal to the Department of Commerce.

              (2) If the Director determines that an application is incomplete or is otherwise deficient, he may request the applicant to supplement the application, as appropriate, prior to publishing the notice of application in the Federal Register. Supplemental information/material requested under this provision shall be supplied to the Director in two copies within 20 days of the date of the request and shall be subject to the certification on the form. Failure to provide the requested information on time shall result in a denial of the application without prejudice to resubmission pursuant to paragraph (e) of this section.
              (3) Requirement for presentation of views (comments) by interested persons. Any interested person or government agency may make written comments to the Director with respect to the question whether an instrument of equivalent scientific value, for the purposes for which the foreign instrument is intended to be used, is being manufactured in the United States. Except for comments specified in paragraph (a)(4) of this section, comments should be in the form of supplementary answers to the applicable questions on the application form. Comments must be postmarked no later than 20 days from the date on which the notice of application is published in the Federal Register. In order to be considered, comments and related attachments must be submitted to the Director in duplicate; shall state the name, affiliation and address of the person submitting the comment; and shall specify the application to which the comment applies. In order to preserve the right to appeal the Director's decision on a particular application pursuant to § 301.6 of these regulations, a domestic manufacturer or other interested person must make timely comments on the application. Separate comments should be supplied on each application in which a person has an interest. However, brochures, pamphlets, printed specifications and the like, included with previous comments, if properly identified, may be incorporated by reference in subsequent comments.
              (4) Comments by domestic manufacturers. Comments of domestic manufacturers opposing the granting of an application should:
              (i) Specify the domestic instrument considered to be scientifically equivalent to the foreign article for the applicant's specific intended purposes and include documentation of the domestic instrument's guaranteed specifications and date of availability.
              (ii) Show that the specifications claimed by the applicant in response to question 8 to be pertinent to the intended purpose can be equaled or exceeded by those of the listed domestic instrument(s) whether or not it has the same design as the foreign instrument; that the applicant's alleged pertinent specifications should not be considered pertinent within the meaning of § 301.2(s) of the regulations for the intended purposes of the instrument described in response to question 7 of the application; or that the intended purposes for which the instrument is to be used do not qualify the instrument for duty-free consideration under the Act.
              (iii) Where the comments regarding paragraphs (a)(4)(i) and (a)(4)(ii) of this section relate to a particular accessory or optional device offered by a domestic manufacturer, cite the type, model or other catalog designation of the accessory device and include the specification therefor in the comments.
              (iv) Where the justification for duty-free entry is based on excessive delivery time, show whether:
              (A) The domestic instrument is as a general rule either produced for stock, produced on order, or custom-made and;
              (B) An instrument or apparatus of equivalent scientific value to the article, for the purposes described in response to question 7, could have been produced and delivered to the applicant within a reasonable time following the receipt of the order.
              (v) Indicate whether the applicant afforded the domestic manufacturer an opportunity to furnish an instrument or apparatus of equivalent scientific value to the article for the purposes described in response to question 7 and, if such be the case, whether the applicant issued an invitation to bid that included the technical requirements of the applicant.
              (5) Untimely comments. Comments must be made on a timely basis to ensure their consideration by the Director and the technical consultants, and to preserve the commenting person's right to appeal the Director's decision. The Director, at his discretion, may take into account factual information contained in untimely comments.
              (6) Provision of general comments. A domestic manufacturer who does not wish to oppose duty-free entry of a particular application, but who desires to inform the Director of the availability and capabilities of its instrument(s), may at any time supply documentation to the Director without reference to a particular application. Such documentation shall be taken into account by the Director when applications involving comparable foreign instruments are received. The provision of general comments does not preserve the provider's right to appeal the Director's decision.
              (b) Additions to the record. The Director may solicit from the applicant, from foreign or domestic manufacturers, their agents, or any other person or Government agency considered by the Director to have related competence, any additional information the Director considers necessary to make a decision. The Director may attach conditions and time limitations upon the provision of such information and may draw appropriate inferences from a person's failure to provide the requested information.
              (c) Advice from technical consultants. (1) The Director shall consider any written advice from the Secretary of HHS, or his delegate, on the question whether a domestic instrument of equivalent scientific value to the foreign instrument, for the purposes for which the instrument is intended to be used, is being manufactured in the United States.
              (2) After the comment period has ended (§ 301.5(a)(3)), the complete application and any comments received and related information are forwarded to appropriate technical consultants for their advice.
              (3) The technical consultants relied upon for advice include, but are not limited to, the National Institutes of Health (delegated the function by the Secretary of HHS), the National Institute of Standards and Technology and the National Oceanographic and Atmospheric Administration.
              (d) Criteria for the determinations of the Department of Commerce—(1) Scientific equivalency. (i) The determination of scientific equivalency shall be based on a comparison of the pertinent specifications of the foreign instrument with similar pertinent specifications of comparable domestic instruments (see § 301.2(s) for the definition of pertinent specification). Ordinarily, the Director will consider only those performance characteristics which are “guaranteed specifications” within the meaning of § 301.2(r) of this part. In no event, however, shall the Director consider performance capabilities superior to the manufacturer's guaranteed specifications or their equivalent. In making the comparison the Director may consider a reasonable combination of domestic instruments that brings together two or more functions into an integrated unit if the combination of domestic instruments is capable of accomplishing the purposes for which the foreign instrument is intended to be used. If the Director finds that a domestic instrument possesses all of the pertinent specifications of the foreign instrument, he shall find that there is being manufactured in the United States an instrument of equivalent scientific value for such purposes as the foreign instrument is intended to be used. If the Director finds that the foreign instrument possesses one or more pertinent specifications not possessed by the comparable domestic instrument, the Director shall find that there is not being manufactured in the United States an instrument of equivalent scientific value to the foreign instrument for such purposes as the foreign instrument is intended to be used.
              (ii) Programs that may be undertaken at some unspecified future date shall not be considered in the Director's comparison. In making the comparison, the Director shall consider only the instrument and accompanying accessories described in the application and determined eligible by the Customs and Border Protection. The Director shall not consider the planned purchase of additional accessories or the planned adaptation of the article at some unspecified future time.

              (iii) In order for the Director to make a determination with respect to the “scientific equivalency” of the foreign and domestic instruments, the applicant's intended purposes must include either scientific research or science-related educational programs. Instruments used exclusively for nonscientific purposes have no scientific value, thereby precluding the requisite finding by the Director with respect to “whether an instrument or apparatus of equivalent scientific value to such article, for the purposes for which the article is intended to be used, is being manufactured in the United States.” In such cases the Director shall deny the application for the reason that the instrument has no scientific value for the purposes for which it is intended to be used. Examples of nonscientific purposes would be the use of an instrument in routine diagnosis or patient care and therapy (as opposed to clinical research); in teaching a nonscientific trade (e.g., printing, shoemaking, metalworking or other types of vocational training); in teaching nonscientific courses (e.g., music, home economics, journalism, drama); in presenting a variety of subjects or merely for presenting coursework, whether or not science related (e.g., video tape editors, tape recorders, projectors); and in conveying cultural information to the public (e.g., a planetarium in the Smithsonian Institution).
              (2) Manufactured in the United States. An instrument shall be considered as being manufactured in the United States if it is customarily “produced for stock,” “produced on order” or “custom-made” within the United States. In determining whether a U.S. manufacturer is able and willing to produce an instrument, and have it available without unreasonable delay, the normal commercial practices applicable to the production and delivery of instruments of the same general category shall be taken into account, as well as other factors which in the Director's judgment are reasonable to take into account under the circumstances of a particular case. For example, in determining whether a domestic manufacturer is able to produce a custom-made instrument, the Director may take into account the production experience of the domestic manufacturer including (i) the types, complexity and capabilities of instruments the manufacturer has produced, (ii) the extent of the technological gap between the instrument to which the application relates and the manufacturer's customary products, (iii) the manufacturer's technical skills, (iv) the degree of saturation of the manufacturer's production capability, and (v) the time required by the domestic manufacturer to produce the instrument to the purchaser's specification. Whether or not the domestic manufacturer has field tested or demonstrated the instrument will not, in itself, enter into the decision regarding the manufacturer's ability to manufacture an instrument. Similarly, in determining whether a domestic manufacturer is willing to produce an instrument, the Director may take into account the nature of the bid process, the manufacturer's policy toward manufacture of the product(s) in question, the minimum size of the manufacturer's production runs, whether the manufacturer has bid similar instruments in the past, etc. Also, if a domestic manufacturer was formally requested to bid an instrument, without reference to cost limitations and within a leadtime considered reasonable for the category of instrument involved, and the domestic manufacturer failed formally to respond to the request, for the purposes of this section the domestic manufacturer would not be considered willing to have supplied the instrument.
              (3) Burden of proof. The burden of proof shall be on the applicant to demonstrate that no instrument of equivalent scientific value for the purposes for which the foreign instrument is to be used is being manufactured in the United States. Evidence of applicant favoritism towards the foreign manufacturer (advantages not extended to domestic firms, such as additional lead time, know-how, methods, data on pertinent specifications or intended uses, results of research or development, tools, jigs, fixtures, parts, materials or test equipment) may be, at the Director's discretion, grounds for rejecting the application.
              (4) Excessive delivery time. Duty-free entry of the instrument shall be considered justified without regard to whether there is being manufactured in the United States an instrument of equivalent scientific value for the intended purposes if excessive delivery time for the domestic instrument would seriously impair the accomplishment of the applicant's intended purposes. For purposes of this section, (i) except when objective and convincing evidence is presented that, at the time of order, the actual delivery time would significantly exceed quoted delivery time, no claim of excessive delivery time may be made unless the applicant has afforded the domestic manufacturer an opportunity to quote and the delivery time for the domestic instrument exceeds that for the foreign instrument; and (ii) failure by the domestic manufacturer to quote a specific delivery time shall be considered a non-responsive bid (see § 301.5(d)(2)). In determining whether the difference in delivery times cited by the applicant justifies duty-free entry on the basis of excessive delivery time, the Director shall take into account (A) the normal commercial practice applicable to the production of the general category of instrument involved; (B) the efforts made by the applicant to secure delivery of the instruments (both foreign and domestic) in the shortest possible time; and (C) such other factors as the Director finds relevant under the circumstances of a particular case.
              (5) Processing of applications for components. (i) The Director may process an application for components which are to be assembled in the United States into an instrument or apparatus which, due to its size, cannot be imported in its assembled state (see § 301.2(k)) as if it were an application for the assembled instrument. A finding by the Director that no equivalent instrument is being manufactured in the United States shall, subject to paragraph (d)(5)(ii) of this section, qualify all the associated components, provided they are entered within the period established by the Director, taking into account both the scientific needs of the importing institution and the potential for development of related domestic manufacturing capacity.
              (ii) Notwithstanding a finding under paragraph (d)(5)(i) of this section that no equivalent instrument is being manufactured in the United States, the Director shall disqualify a particular component for duty-free treatment if the Director finds that the component is being manufactured in the United States.
              (e) Denial without prejudice to resubmission (DWOP). The Director may, at any stage in the processing of an application by the Department of Commerce, DWOP an application if it contains any deficiency which, in the Director's judgment, prevents a determination on its merits. The Director shall state the deficiencies of the application in the DWOP letter to the applicant.
              (1) The applicant has 60 days from the date of the DWOP to correct the cited deficiencies in the application unless a request for an extension of time for submission of the supplemental information has been received by the Director prior to the expiration of the 60-day period and is approved.
              (2) If granted, extensions of time will generally be limited to 30 days.
              (3) Resubmissions must reference the application number of the earlier submission. The resubmission may be made by letter to the Director. The record of a resubmitted application shall include the original submission on file with the Department. Any new material or information contained in a resubmission, which should address the specific deficiencies cited in the DWOP letter, should be clearly labeled and referenced to the applicable question on the application form. The resubmission must be for the instrument covered by the original application unless the DWOP letter specifies to the contrary. The resubmission shall be subject to the certification made on the original application.
              (4) If the applicant fails to resubmit within the applicable time period, the prior DWOP shall, irrespective of the merits of the case, result in a denial of the application.
              (5) The Director shall use the postmark date of the fully completed resubmission in determining whether the resubmission was made within the allowable time period. Certified or registered mail, or some other means which can unequivocally establish the date of mailing, is recommended. Resubmission by fax, e-mail or other electronic means is acceptable provided an appropriate return number or address is provided in the transmittal. Resubmissions must clearly indicate the date of transmittal to the Director.
              (6) The applicant may, at any time prior to the end of the resubmission period, notify the Director in writing that it does not intend to resubmit the application. Upon such notification, the application will be deemed to have been withdrawn. (See § 301.5(g).)

              (7) Information provided in a resubmission that, in the judgment of the Director, contradicts or conflicts with information provided in a prior submission, or is not a reasonable extension of the information contained in the prior submission, shall not be considered in making the decision on an application that has been resubmitted. Accordingly, an applicant may elect to reinforce an orginal submission by elaborating in the resubmission on the description of the purposes contained in a prior submission and may supply additional examples, documentation and/or other clarifying detail, but the applicant shall not introduce new purposes or other material changes in the nature of the original application. The resubmission should address the specific deficiencies cited in the DWOP. The Director may draw appropriate inferences from the failure of an applicant to attempt to provide the information requested in the DWOP.
              (8) In the event an applicant fails to address the noted deficiencies in the response to the DWOP, the Director may deny the application.
              (f) Decisions on applications. The Director shall prepare a written decision granting or denying each application. However, when he deems appropriate, the Director may issue a consolidated decision on two or more applications. The Director shall promptly forward a copy of the decision to each applicant institution and to the Federal Register for publication.
              (g) Withdrawal of applications. The Director shall discontinue processing an application withdrawn by the applicant and shall publish notice of such withdrawal in the Federal Register. If at any time while its application is pending before the Director, either during the intital application or resubmission stage, an applicant cancels an order for the instrument to which the application relates or ceases to have a firm intention to order such instrument or apparatus, the institution shall promptly notify the Director. Such notification shall constitute a withdrawal. Withdrawals shall be considered as having been finally denied for purposes of § 301.7(c) below.
              (h) Nothing in this subsection shall be construed as limiting the Director's discretion at any stage of processing to insert into the record and consider in making his decision any information in the public domain which he deems relevant.
              [47 FR 32517, July 28, 1982; 47 FR 34368, Aug. 9, 1982, as amended at 50 FR 11501, Mar. 22, 1985; 66 FR 28833, May 25, 2001; 74 FR 30463, June 26, 2009]

              § 301.6
              Appeals.

              (a) An appeal from a final decision made by the Director under § 301.5(f) may be taken in accordance with U.S. Note 6(e), Subchapter X, Chapter 98, HTSUS, only to the U.S. Court of Appeals for the Federal Circuit and only on questions of law, within 20 days after publication of the decision in the Federal Register. If at any time while its application is under consideration by the Court of Appeals on an appeal from a finding by the Director an institution cancels an order for the instrument to which the application relates or ceases to have a firm intention to order such instrument, the institution shall promptly notify the court.
              (b) An appeal may be taken by: (1) The institution which makes the application;
              (2) A person who, in the proceeding which led to the decision, timely represented to the Secretary of Commerce in writing that he/she manufactures in the United States an instrument of equivalent scientific value for the purposes for which the instrument to which the application relates is intended to be used;
              (3) The importer of the instrument, if the instrument to which the application relates has been entered at the time the appeal is taken; or
              (4) An agent of any of the foregoing.
              (c) Questions regarding appeal procedures should be addressed directly to the U.S. Court of Appeals for the Federal Circuit, Clerk's Office, Washington, DC 20439.
              [47 FR 32517, July 28, 1982, as amended at 66 FR 28834, May 25, 2001]

              § 301.7
              Final disposition of an application.

              (a) Disposition of an application shall be final when 20 days have elapsed after publication of the Director's final decision in the Federal Register and no appeal has been taken pursuant to § 301.6 of these regulations, of if such appeal has been taken, when final judgment is made and entered by the Court.
              (b) The Director shall notify the CBP Port when disposition of an application becomes final. If the Director has not been advised of the port of entry of the instrument, or if entry has not been made when the decision on the application becomes final, the Director shall notify the Commissioner of final disposition of the application.

              (c) An instrument, the duty-free entry of which has been finally denied, may not be the subject of a new application from the same institution.
              [47 FR 32517, July 28, 1982, as amended at 66 FR 28834, May 25, 2001; 74 FR 30463, June 26, 2009]

              § 301.8
              Instructions for entering instruments through Customs and Border Protection under subheading 9810.00.60, HTSUS.
              Failure to follow the procedures in this section may disqualify an instrument for duty-free entry notwithstanding an approval of an application on its merits by the Department of Commerce.
              (a) Entry procedures. (1) An applicant desiring duty-free entry of an instrument may make a claim at the time of entry of the instrument into the Customs territory of the United States (as defined in 19 CFR 101.1) that the instrument is entitled to duty-free classification under subheading 9810.00.60, HTSUS.
              (2) If no such claim is made the instrument shall be immediately classified without regard to subheading 9810.00.60, HTSUS , duty will be assessed, and the entry liquidated in the ordinary course.
              (3) If a claim is made for duty-free entry under subheading 9810.00.60, HTSUS , the entry shall be accepted without requiring a deposit of estimated duties provided that a copy of the form, stamped by Customs and Border Protection as accepted for transmittal to the Department of Commerce in accordance with § 301.4(b), is filed simultaneously with the entry.
              (4) If a claim for duty-free entry under subheading 9810.00.60, HTSUS is made but is not accompanied by a copy of the properly stamped form, a deposit of the estimated duty is required. Before the entry is liquidated, the applicant must file with the CBP Port a properly stamped copy of the application form. In the event that the CBP Port does not receive a copy of the properly stamped application form before liquidation, the instrument shall be classified and liquidated in the ordinary course, without regard for subheading 9810.00.60, HTSUS.
              (5) Entry of an instrument after the Director's approval of an application. Whenever an institution defers entry until after it receives a favorable final determination on the application for duty-free entry of the instrument, either by delaying importation or by placing the instrument in a bonded warehouse or foreign trade zone, the importer shall file with the entry of the instrument (i) the stamped copy of the form, (ii) the institution's copy of the favorable final determination and (iii) proof that a bona fide order for the merchandise was placed on or before the 60th day after the favorable decision became final pursuant to § 301.7 of these regulations. Liquidation in such case shall be made under subheading 9810.00.60, HTSUS.
              (b) Normal Customs and Border Protection entry requirements. In addition to the entry requirements in paragraph (a) of this section, the normal Customs and Border Protection entry requirements must be met. In most of the cases, the value of the merchandise will be such that the formal Customs and Border Protection entry requirements, which generally include the filing of a Customs and Border Protection entry bond, must be complied with. (For further information, see 19 CFR 142.3 and 142.4 (TD-221).)
              (c) Late filing. Notwithstanding the preceding provisions of this section any document, form, or statement required by regulations in this section to be filed in connection with the entry may be filed at any time before liquidation of the entry becomes final, provided that failure to file at the time of entry or within the period for which a bond was filed for its production was not due to willful negligence or fraudulent intent. Liquidation of any entry becomes conclusive upon all persons if the liquidation is not protested in writing in accordance with 19 CFR part 174, or the necessary document substantiating duty-free entry is not produced in accordance with 19 CFR 10.112. Upon notice of such final and conclusive liquidation, the Department of Commerce will cease the processing of any pending application for duty-free entry of the subject article. In all other respects, the provisions of this section do not apply to Department of Commerce responsibilities and procedures for processing applications pursuant to other sections of these regulations.

              (d) Payment of duties. The importer of record will be billed for payment of duties when Customs and Border Protection determines that such payment is due. If a refund of a deposit made pursuant to paragraph (a)(4) of this section is due, the importer should contact Customs and Border Protection officials at the port of entry, not the Department of Commerce.
              [47 FR 32517, July 28, 1982, as amended at 66 FR 28834, May 25, 2001; 74 FR 30463, June 26, 2009]

              § 301.9
              Uses and disposition of instruments entered under subheading 9810.00.60, HTSUS.
              (a) An instrument granted duty-free entry may be transferred from the applicant institution to another eligible institution provided the receiving institution agrees not to use the instrument for commercial purposes within 5 years of the date of entry of the instrument. In such cases title to the instrument must be transferred directly between the institutions involved. An institution transferring a foreign instrument entered under subheading 9810.00.60, HTSUS within 5 years of its entry shall so inform the CBP Port in writing and shall include the following information:
              (1) The name and address of the transferring institution.
              (2) The name and address of the transferee.
              (3) The date of transfer.
              (4) A detailed description of the instrument.
              (5) The serial number of the instrument and any accompanying accessories.
              (6) The entry number, date of entry, and port of entry of the instrument.
              (b) Whenever the circumstances warrant, and occasionally in any event, the fact of continued use for 5 years for noncommercial purposes by the applicant institution shall be verified by Customs and Border Protection.
              (c) If an instrument is transferred in a manner other than specified above or is used for commercial purposes within 5 years of entry, the institution for which such instrument was entered shall promptly notify the Customs and Border Protection officials at the Port and shall be liable for the payment of duty in an amount determined on the basis of its condition as imported and the rate applicable to it.
              [47 FR 32517, July 28, 1982, as amended at 66 FR 28834, May 25, 2001; 74 FR 30463, June 26, 2009]

              § 301.10
              Importation of repair components and maintenance tools under HTSUS subheadings 9810.00.65 and 9810.00.67 for instruments previously the subject of an entry liquidated under subheading 9810.00.60, HTSUS.
              (a) An institution owning an instrument that was the subject of an entry liquidated duty-free under subheading 9810.00.60, HTSUS, that wishes to enter repair components or maintenance tools for that instrument may do so without regard to the application procedures required for entry under subheading 9810.00.60, HTSUS. The institution must certify to Customs and Border Protection officials at the port of entry that such components are repair components for that instrument under subheading 9810.00.65, HTSUS, or that the tools are maintenance tools necessary for the repair, checking, gauging or maintenance of that instrument under subheading 9810.00.67, HTSUS.
              (b) Instruments entered under subheading 9810.00.60, HTSUS, and subsequently returned to the foreign manufacturer for repair, replacement or modification are not covered by subheading 9810.00.65 or 9810.00.67, HTSUS, although they may, upon return to the United States, be eligible for a reduced duty payment under subheading 9802.00.40 or 9802.00.50, HTSUS (covering articles exported for repairs or alterations) or may be made the subject of a new application under subheading 9810.00.60, HTSUS.
              [66 FR 28834, May 25, 2001, as amended at 74 FR 30463, June 26, 2009]

            PART 302 [RESERVED]

            Pt. 303
            PART 303—WATCHES, WATCH MOVEMENTS AND JEWELRY PROGRAM

                Subpart A—Watches and Watch Movements
                Sec.
                303.1
                Purpose.
                303.2
                Definitions and forms.
                303.3
                Determination of the total annual duty-exemption.
                303.4
                Determination of territorial distribution.
                303.5
                Application for annual allocations of duty-exemptions and duty-refunds.
                303.6
                Allocation and reallocation of exemptions among producers.
                303.7
                Issuance of licenses and shipment permits.
                303.8
                Maintenance of duty-exemption entitlements.
                303.9
                Restrictions on the transfer of duty-exemptions.
                303.10-303.11
                [Reserved]
                303.12
                Issuance and use of production incentive certificates.
                303.13
                Appeals.
                303.14
                Allocation factors, duty refund calculations and miscellaneous provisions.

                Subpart B—Jewelry
                303.15
                Purpose.
                303.16
                Definitions and forms.
                303.17
                Application for annual duty-refunds.
                303.18
                Sale and transfer of business.
                303.19
                Issuance and use of production incentive certificates.
                303.20
                Duty refund.
                303.21
                Appeals.

              Authority:
              Pub. L. 97-446, 96 Stat. 2331 (19 U.S.C. 1202, note); Pub. L. 103-465, 108 Stat. 4991; Pub. L. 94-241, 90 Stat. 263 (48 U.S.C. 1681, note); Pub. L. 106-36, 113 Stat. 167; Pub. L. 108-429, 118 Stat. 2582.

              Source:
              49 FR 17740, Apr. 25, 1984, unless otherwise noted.

              Editorial Note:
              Nomenclature changes to part 303 appear at 68 FR 56555, Oct. 1, 2003.

              Subpart A—Watches and Watch Movements

                § 303.1
                Purpose.
                (a) This part implements the responsibilities of the Secretaries of Commerce and the Interior (“the Secretaries”) under Pub. L. 97-446, enacted on 12 January 1983, which substantially amended Pub. L. 89-805, enacted 10 November 1966, amended by Pub. L. 94-88, enacted 8 August 1975, and amended by Pub. L. 94-241, enacted 24 March 1976, amended by Public Law 103-465, enacted 8 December 1994 and amended by Public Law 108-429 enacted 3 December 2004. The law provides for exemption from duty of territorial watches and watch movements without regard to the value of the foreign materials they contain, if they conform with the provisions of U.S. Legal Note 5 to Chapter 91 of the Harmonized Tariff Schedule of the United States (“91/5”). 91/5 denies this benefit to articles containing any material which is the product of any country with respect to which Column 2 rates of duty apply; authorizes the Secretaries to establish the total quantity of such articles, provided that the quantity so established does not exceed 10,000,000 units or one-ninth of apparent domestic consumption, whichever is greater, and provided also that the quantity is not decreased by more than ten percent nor increased by more than twenty percent (or to more than 7,000,000 units, whichever is greater) of the quantity established in the previous year.
                (b) The law directs the International Trade Commission to determine apparent domestic consumption for the preceding calendar year in the first year U.S. insular imports of watches and watch movements exceed 9,000,000 units. 91/5 authorizes the Secretaries to establish territorial shares of the overall duty-exemption within specified limits; and provides for the annual allocation of the duty-exemption among insular watch producers equitably and on the basis of allocation criteria, including minimum assembly requirements, that will reasonably maximize the net amount of direct economic benefits to the insular possessions.

                (c) The amended law also provides for the issuance to producers of certificates entitling the holder (or any transferee) to obtain duty refunds on any article imported into the customs territory of the United States duty paid except for any article containing a material which is the product of a country to which column 2 rates of duty apply. The amounts of these certificates may not exceed specified percentages of the producers' verified creditable wages in the insular possessions (90% of wages paid for the production of the first 300,000 units and declining percentages, established by the Secretaries, of wages paid for incremental production up to 750,000 units by each producer) nor an aggregate annual amount for all certificates exceeding $5,000,000 adjusted for growth by the ratio of the previous year's gross national product to the gross national product in 1982. Refund requests are governed by regulations issued by the Department of Homeland Security. The Secretaries are authorized to issue regulations necessary to carry out their duties under additional U.S. note 5 to chapter 91 of the Harmonized Tariff Schedule of the United States, HTSUS and may cancel or restrict the license or certificate of any insular manufacturer found violating the regulations.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985; 53 FR 52994, Dec. 30, 1988; 61 FR 55884, Oct. 30, 1996; 70 FR 67647, Nov. 8, 2005; 72 FR 16713, Apr. 5, 2007]

                § 303.2
                Definitions and forms.
                (a) Definitions. Unless the context indicates otherwise:
                (1) Act means Pub. L. 97-446, enacted January 12, 1983 (19 U.S.C. 1202), 96 Stat. 2329, as amended at Pub. L. 103-465, enacted on December 8, 1994, 108 Stat. 4991, Public Law 108-429, enacted on 3 December 2004, 118 Stat. 2582.
                (2) Secretaries means the Secretary of Commerce and the Secretary of Interior or their delegates, acting jointly.
                (3) Director means the Director of the Statutory Import Programs Staff, International Trade Administration, U.S. Department of Commerce.
                (4) Sale or tranfer of a business means the sale or transfer of control, whether temporary or permanent, over a firm to which a duty-exemption has been allocated, to any other firm, corporation, partnership, person or other legal entity by any means whatsoever, including, but not limited to, merger and transfer of stock, assets or voting trusts.
                (5) New firm is a watch firm not affiliated through ownership or control with any other watch duty-refund recipient. In assessing whether persons or parties are affiliated, the Secretaries will consider the following factors, among others: stock ownership; corporate or family groupings; franchise or joint venture agreements; debt financing; and close supplier relationships. The Secretaries may not find that control exists on the basis of these factors unless the relationship has the potential to affect decisions concerning production, pricing, or cost. Also, no watch duty-refund recipient may own or control more than one jewelry duty-refund recipient. A new entrant is a new watch firm which has received an allocation.
                (6) Producer means a duty-exemption holder which has maintained its eligibility for further allocations by complying with these regulations.
                (7) Established industry means all producers, including new entrants, that have maintained their eligibility for further allocations.
                (8) Territories, territorial, and insular possessions refer to the insular possessions of the United States (i.e., the U.S. Virgin Islands, Guam, and American Samoa and the Northern Mariana Islands).
                (9) Duty-exemption refers to the authorization of duty-free entry of a specified number of watches and watch movements into the Customs Territory of the United States.
                (10) Total annual duty-exemption refers to the entire quantity of watches or watch movements which may enter duty-free into the customs territory of the United States from the territories under 91/5 in a calendar year, as determined by the Secretaries or by the International Trade Commission in accordance with the Act.
                (11) Territorial distribution refers to the apportionment by the Secretaries of the total annual duty-exemption among the separate territories; territorial share means the portion consigned to each territory by this apportionment.
                (12) Allocation refers to the distribution of all parts of a territorial share, or a portion thereof, among the several producers in a territory.

                (13) Creditable wages and associated, creditable fringe benefits and creditable duty differentials eligible for the duty refund benefit include, but are not limited to, the following:

                (i) Wages up to an amount equal to 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the insular possessions employed in a firm's 91/5 watch and watch movement program.
                (A) Wages paid for the repair of watches up to an amount equal to 85 percent of the firm's total creditable wages.
                (B) Wages paid to watch and watch movement assembly workers involved in the complete assembly of watches and watch movements which have entered the United States duty-free and have complied with the laws and regulations governing the program.
                (C) Wages paid to watch and watch movement assembly workers involved in the complete assembly of watches, excluding the movement, only in situations where the desired movement can not be purchased unassembled and the producer has documentation establishing this.
                (D) Wages paid to those persons engaged in the day-to-day assembly operations on the premises of the company office, wages paid to administrative employees working on the premises of the company office, wages paid to security employees and wages paid to servicing and maintenance employees if these services are integral to the assembly and manufacturing operations and the employees are working on the premises of the company office.
                (E) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations may be credited proportionally provided the firm maintains production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
                (F) Wages paid to new permanent residents who have met the requirements of permanent residency in accordance with the Departments' regulations, along with meeting all other creditable wage requirements of the regulations, which must be documented and verified to the satisfaction of the Secretaries.
                (ii) The combined creditable amount of individual health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 130 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the individual health plans weighted by the number of individual contracts in each plan. The yearly amount is calculated by the Office of Personnel Management and includes the “weighted average” of all individual health insurance costs for federal employees throughout the United States. The maximum life insurance allowed within this combined amount is $50,000 for each employee. Only during the time employees are earning creditable wages are they entitled to health and life insurance duty refund benefits under the program.
                (A) The combined creditable amount of family health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 150 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the family health plans weighted by the number of family contracts in each plan. The yearly amount is calculated by the Office of Personnel Management and includes the “weighted average” of all family health insurance costs for federal employees throughout the United States. The maximum life insurance allowed within this combined amount is $50,000 for each employee. Only during the time employees are earning creditable wages are they entitled to health and life insurance duty refund benefits under the program.

                (B) The creditable pension benefit, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, is up to 3 percent of the employee's wages unless the employee's wages exceed the maximum annual creditable wage allowed under the program (see paragraph (a)(13)(i) of this section). An employee earning more than the maximum creditable wage allowed under the program will be eligible for only 3 percent of the maximum creditable wage. Only during the time employees are earning creditable wages are they entitled to pension duty refund benefits under the program.
                (iii) If tariffs on watches and watch movements are reduced, then companies would be required to provide the annual aggregate data by individual HTSUS watch tariff numbers for the following components contained therein: the quantity and value of watch cases, the quantity of movements, the quantity and value of each type of strap, bracelet or band, and the quantity and value of batteries shipped free of duty into the United States. If discrete watch movements are shipped free of duty into the United States, then the annual aggregate quantity by individual HTSUS movement tariff numbers would also be required along with the value of each battery if it is contained within. These data would be used to calculate the annual duty rate before each HTSUS tariff reduction, and the annual duty rate after the HTSUS tariff reduction. The amount of the difference would be creditable toward the duty refund. The tariff information would only be collected and used in the calculation of the annual duty-refund certificate and would not be used in the calculation of the mid-year duty-refund.
                (14) Non-creditable wages and associated non-creditable fringe benefits ineligible for the duty refund benefit include, but are not limited to, the following:
                (i) Wages over 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the territories employed in a firm's 91/5 watch and watch movement program.
                (A) Wages paid for the repair of watches in an amount over 85 percent of the firm's total creditable wages.
                (B) Wages paid for the assembly of watches and watch movements which are shipped outside the customs territory of the United States; wages paid for the assembly of watches and watch movements that do not meet the regulatory assembly requirements; or wages paid for the assembly of watches or watch movements that contain HTSUS column 2 components.
                (C) Wages paid for the complete assembly of watches, excluding the movement, when the desired movement can be purchased unassembled, if the producer does not have adequate documentation, demonstrating to the satisfaction of the Secretaries, that the movement could not be purchased unassembled whether or not it is entering the United States.
                (D) Wages paid to persons not engaged in the day-to-day assembly operations on the premises of the company office; wages paid to any outside consultants; wages paid to outside the office personnel, including but not limited to, lawyers, gardeners, construction workers, and accountants; wages paid to employees not working on the premises of the company office; and wages paid to employees who do not qualify as permanent residents in accordance with the Departments' regulations.
                (E) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations if the producer does not maintain production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
                (ii) Any costs, for the year in which the wages were paid, of the combined creditable amount of individual health and life insurance for employees over 130 percent of the “weighted average” yearly individual health insurance costs for all federal employees. The cost of any life insurance over the $50,000 limit for each employee. Any health and life insurance costs during the time an employee is not earning creditable wages.
                (A) Any costs, for the year in which the wages were paid, of the combined creditable amount of family health and life insurance for employees over 150 percent of the “weighted average” yearly family health insurance costs for all federal employee. The cost of any life insurance over the $50,000 limit for each employee. Any health and life insurance costs during the time an employee is not earning creditable wages.

                (B) Any pension benefits that were not based on associated creditable wages. The cost of any pension benefit per employee over 3 percent of the employee's creditable wages unless the employee's wages exceed the maximum annual creditable annual maximum creditable wage allowed under the program (see paragraph (a)(13)(i) of this section). Employees earning over the maximum creditable wage allowed under the program would have a creditable annual pension benefit of up to 3 percent of the maximum creditable wage and wages over 3 percent of the maximum creditable wage would not be creditable.
                (15) Non-91/5 watches and watch movements include, but are not limited to, watches and movements which are liquidated as dutiable by the Bureau of Customs and Border Protection but do not include, for purposes of the duty refund, watches that are completely assembled in the insular possessions, with the exception of a desired movement if the movement cannot be purchased in an unassembled condition; contains any material which is the product of any country with respect to which Column 2 rates of duty apply; are ineligible for duty-free treatment pursuant to law or regulation; or are units the assembly of which the Departments have determined not to involve substantial and meaningful work in the territories (as elsewhere defined in these regulations).
                (16) Discrete movements and components means screws, parts, components and subassemblies not assembled together with another part, component or subassembly at the time of importation into the territory. (A mainplate containing set jewels or shock devices, together with other parts, would be considered a single discrete component, as would a barrel bridge subassembly.)
                (17) Permanent resident means a person with one residence which is in the insular possessions or a person with one or more residences outside the insular possessions who meets criteria that include maintaining his or her domicile in the insular possessions, residing (i.e., be physically present for at least 183 days within a continuous 365 day period) and working in the territory at a program company, and maintaining his or her primary office for day-to-day work in the insular possessions.
                (b) Forms—(1) ITA-334P “Application for License to Enter Watches and Watch Movements into the Customs Territory of the United States.” This form must be completed annually by all producers desiring to receive an annual allocation. It is also used, with appropriate special instructions for its completion, by new firms applying for duty-exemptions and by producers who wish to receive the duty refund in installments on a biannual basis.
                (2) ITA-333 “License to Enter Watches and Watch Movements into the Customs Territory of the United States.” This form is issued by the Director to producers who have received an allocation and constitutes authorization for issuing specific shipment permits by the territorial governments. It is also used to record the balance of a producer's remaining duty-exemptions after each shipment permit is issued.
                (3) ITA-340 “Permit to Enter Watches and Watch Movements into the Customs Territory of the United States.” This form may be obtained, by producers holding a valid license, from the territorial government or may be produced by the licensee in an approved computerized format or any other medium or format approved by the Departments of Commerce and the Interior. The completed form authorizes duty-free entry of a specified amount of watches or watch movements at a specified U.S. Customs port.
                (4) ITA-360P “Certificate of Entitlement to Secure the Refund of Duties on Articles that Entered the Customs Territory of The United State Duty Paid.” This document authorizes an insular watch producer to request the refund of duties on imports of articles that entered the customs territory of the United States duty paid, up to the specified value of the certificate. Certificates may be used to obtain duty refunds only when presented with a properly executed Form ITA-361P.
                (5) ITA-361P “Request for Refund of Duties on Articles that Entered the Customs Territory of the United States Duty Paid.” This form must be completed to obtain the refund of duties authorized by the Director through Form ITA-360P. After authentication by the Department of Commerce, it may be used for the refund of duties on items which were entered into the customs territory of the United States duty paid during a specified time period. Copies of the appropriate Customs entries must be provided with this form to establish a basis for issuing the claimed amounts. The forms may also be used to transfer all or part of the producer's entitlement to another party. (See § 303.12.)
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985; 53 FR 52994, Dec. 30, 1988; 56 FR 9621, Mar. 7, 1991; 61 FR 55884, 55885, Oct. 30, 1996; 65 FR 8049, Feb. 17, 2000; 66 FR 34812, July 2, 2001; 67 FR 77408, Dec. 18, 2002; 68 FR 56555, Oct. 1, 2003; 70 FR 67647, Nov. 8, 2005; 72 FR 16714, Apr. 5, 2007; 73 FR 62881, Oct. 22, 2008]

                § 303.3
                Determination of the total annual duty-exemption.
                (a) Procedure for determination. If, after considering the productive capacity of the territorial watch industry and the economic interests of the territories, the Secretaries determine that the amount of the total annual duty-exemption, or the territorial shares of the total amount, should be changed, they shall publish in the Federal Register a proposed limit on the quantity of watch units which may enter duty-free into the customs territory of the United States and proposed territorial shares thereof and, after considering comments, establish the limit and shares by Federal Register notice. If the Secretaries take no action under this section, they shall make the allocations in accordance with the limit and shares last established by this procedure.
                (b) Standards for determination. (1) Notwithstanding paragraph (b)(2) of this section, the limit established for any year may be 7,000,000 units if the limit established for the preceding year was a smaller amount.
                (2) Subject to paragraph (c) of this section, the total annual duty-exemption shall not be decreased by more than 10% of the quantity established for the preceding calendar year, or increased, if the resultant total is larger than 7,000,000, by more than 20% of the quantity established for the calendar year immediately preceding.
                (3) The Secretaries shall determine the limit after considering the interests of the territories; the domestic or international trade policy objectives of the United States; the need to maintain the competitive nature of the territorial industry; the total contribution of the industry to the economic well-being of the territories; and the territorial industry's utilization of the total duty-exemption established in the preceding year.
                (c) Determinations based on consumption. (1) The Secretaries shall notify the International Trade Commission whenever they have reason to believe duty-free watch imports from the territories will exceed 9,000,000 units, or whenever they make a preliminary determination that the total annual duty-exemption should exceed 10,000,000 units.
                (2) In addition to the limitations in paragraph (b) of this section, the Secretaries shall not establish a limit exceeding one-ninth of apparent domestic consumption if such consumption, as determined by International Trade Commission, exceeds 90 million units.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 7170, Feb. 21, 1985; 50 FR 43568, Oct. 28, 1985; 53 FR 52994, Dec. 30, 1988]

                § 303.4
                Determination of territorial distribution.
                (a) Procedure for determination. The Secretaries shall determine the territorial shares concurrently with their determination of the total annual duty exemption, and in the same manner (see § 303.3, above).
                (b) Standards for determination—(1) Limitations. A territorial share may not be reduced by more than 500,000 units in any calendar year. No territorial share shall be less than 500,000 units.
                (2) Criteria for setting precise quantities. The Secretaries shall determine the precise quantities after considering, inter alia, the territorial capacity to produce and ship watch units. The Secretaries shall further bear in mind the aggregate benefits to the territories, such as creditable wages paid, creditable wages per unit exported, and corporate income tax payments.
                (3) Limitations on reduction of share. The Secretaries shall not reduce a territory's share if its producers use 85% or more of the quantity distributed to that territory in the immediately preceding year, except in the case of a major increase or decrease in the number of producers in a territory or if they believe that a territorial industry will decrease production by more than 15% from the total of the preceding year.
                (4) Standby redistribution authority. The Secretaries may redistribute territorial shares if such action is warranted by circumstances unforeseen at the time of the initial distributions, such as that a territory will use less than 80% of its total by the end of a calendar year, or if a redistribution is necessary to maintain the competitive nature of the territorial industries.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 7170, Feb. 21, 1985]

                § 303.5
                Application for annual allocations of duty-exemptions and duty-refunds.
                (a) Application forms (ITA-334P) shall be furnished to producers by January 1, and must be completed and returned to the Director no later than January 31, of each calendar year.
                (b) All data supplied are subject to verification by the Secretaries and no allocation or duty-refund certificate shall be made to producer until the Secretaries are satisfied that the data are accurate. To verify the data, representatives of the Secretaries shall have access to relevant company records including:
                (1) Work sheets used to answer all questions on the application form;
                (2) Original records from which such data are derived;
                (3) Records pertaining to ownership and control of the company and to the satisfaction of eligibility requirements of duty-free treatment of its product by the Bureau of Customs and Border Protection;
                (4) Records pertaining to corporate income taxes, gross receipts taxes and excise taxes paid by each producer in the territories on the basis of which a portion of each producer's annual allocation is or may be predicated;
                (5) Customs, bank, payroll, including time cards, production records, and all shipping records including the importer of record number and proof of residency, as requested;
                (6) Records on purchases of components, including documentation on the purchase of any preassembled movements, which demonstrate that such movements could not have been purchased from the vendor in an unassembled condition, and records on the sales of insular watches and movements, including proof of payment; and
                (7) Any other records in the possession of the parent or affiliated companies outside the territory pertaining to any aspect of the producer's 91/5 watch assembly operation.
                (8) All records pertaining to health insurance, life insurance and pension benefits for each employee; and
                (9) If HTSUS tariffs on watches and watch movements are reduced, records of the annual aggregate data by individual HTSUS watch tariff numbers for the following components contained therein would be required: the quantity and value of watch cases; the quantity of movements; the quantity and value of each type of strap, bracelet or band; and the quantity and value of batteries shipped free of duty into the United States. In addition, if applicable, records of the annual aggregate quantity of discrete watch movements shipped free of duty into the United States by HTSUS tariff number.
                (c) Data verification shall be performed in the territories, unless other arrangements satisfactory to the Departments are made in advance, by the Secretaries' representatives by the end of February of each calendar year. It is the responsibility of each program producer to make the appropriate data available to the Departments' officials for the calendar year for which the annual verification is being performed and no further data, from the calendar year for which the audit is being completed, will be considered for benefits at any time after the audit has been completed. In the event of discrepancies between the application and substantiating data before the audit is complete, the Secretaries shall determine which data will be used in the calculation of the duty refund and allocations.

                (d) Records subject to the requirements of paragraph (b), above, shall be retained for a period of two years following their creation.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985; 53 FR 52994, Dec. 30, 1988; 68 FR 56556, Oct. 1, 2003; 70 FR 67648, Nov. 8, 2005; 72 FR 16714, Apr. 5, 2007]

                § 303.6
                Allocation and reallocation of exemptions among producers.
                (a) Interim allocations. As soon as practicable after January 1 of each year the Secretaries shall make an interim allocation to each producer equaling 70% of the number of watch units it has entered duty-free into the customs territory of the United States during the first eight months of the preceding calendar year, or any lesser amount requested in writing by the producer. The Secretaries may also issue a lesser amount if, in their judgment, the producer might otherwise receive an interim allocation in an amount greater than the producer's probable annual allocation. In calculating the interim allocations, the Director shall count only duty-free watches and watch movements verified by the Bureau of Customs and Border Protection, or verified by other means satisfctory to the Secretaries, as having been entered on or before August 31 of the preceding year. Interim allocations shall not be published.
                (b) Annual allocations. (1) By March 1 of each year the Secretaries shall make annual allocations to the producers in accordance with the allocation formula based on data supplied in their annual application (Form ITA-334P) and verified by the Secretaries.

                (2) The excess of a producer's duty-exemption earned under the allocation criteria over the amount formally requested by the producer shall be considered to have been relinquished voluntarily (see paragraph (f) below). A producer's request may be modified by written communication received by the Secretaries by February 28, or, at the discretion of the Secretaries, before the annual allocations are made. An allocation notice shall be published in the Federal Register.

                (c) Supplemental allocations. At the request of a producer, the Secretaries may supplement a producer's interim allocation if the Secretaries determine the producer's interim allocation will be used before the Secretaries can issue the annual allocation. Allocations to supplement a producer's annual allocation shall be made under the reallocation provisions prescribed below.
                (d) Allocations to new entrants. In making interim and annual allocations to producers selected the preceding year as new entrants, the Secretaries shall take into account that such producers will not have had a full year's operation as a basis for computation of its duty-exemption. The Secretaries may make an interim or annual allocation to a new entrant even if the firm did not operate during the preceding calendar year.
                (e) Special allocations. A producer may request a special allocation if unusual circumstances kept it from making duty-free shipments at a level comparable with its past record. In considering such requests, the Secretaries shall take into account the firm's proposed assembly operations; its record in contributing to the territorial economy; and its intentions and capacity to make meaningful contributions to the territory. They shall also first determine that the amount of the special allocation requested will not significantly affect the amounts allocated to other producers pursuant to § 303.6(b)(1).
                (f) Reallocations. Duty-exemptions may become available for reallocation as a result of cancellation or reduction for cause, voluntary relinquishment or nonplacement of duty-exemption set aside for new entrants. At the request of a producer, the Secretaries may reallocate such duty-exemptions among the remaining producers who can use additional quantities in a manner judged best for the economy of the territories. The Secretaries shall consider such factors as the wage and income tax contributions of the respective producers during the preceding year and the nature of the producer's present assembly operations. In addition, the Secretaries may consider other factors which, in their judgment, are relevant to determining that applications from new firms, in lieu of reallocations, should be considered for part or all of unused portions of the total duty exemptions. Such factors may include:

                (1) The ability of the established industry to use the duty-exemption;
                (2) Whether the duty-exemption is sufficient to support new entrant operations;
                (3) The impact upon the established industry if new entrants are selected, particularly with respect to the effect on local employment, tax contributions to the territorial government, and the ability of the established industry to maintain satisfactory production levels; and
                (4) Whether additional new entrants offer the best prospect for adding economic benefits to the territory.
                (g) Section 303.14 of this part contains the criteria and formulae used by the Secretaries in calculating each watch producer's annual watch duty-exemption allocation, and other special rules or provisions the Secretaries may periodically adopt to carry out their responsibilities in a timely manner while taking into account changing circumstances. References to duty-exemptions, unless otherwise indicated, are to the amount available for reallocation in the current calendar year. Specifications of or references to data or bases used in the calculation of current year allocations (e.g., economic contributions and shipments) are, unless indicated otherwise, those which were generated in the previous year.
                (h) The Secretaries may propose changes to § 303.14 at any time they consider it necessary to fulfill their responsibilities. Normally, such changes will be proposed towards the end of each calendar year. Interested parties shall be given an opportunity to submit written comments on proposed changes.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985; 61 FR 55885, Oct. 30, 1996; 63 FR 5888, Feb. 5, 1998]

                § 303.7
                Issuance of licenses and shipment permits.
                (a) Issuance of Licenses (ITA-333). (1) Concurrently with annual allocations under § 303.5 the Director shall issue a non-transferable license (Form ITA-333) to each producer. The Director shall also issue a replacement license if a producer's allocation is reduced pursuant to § 303.6.
                (2) Annual duty-exemption licenses shall be for only that portion of a producer's annual duty-exemption not previously licensed.
                (3) If a producer's duty-exemption has been reduced, the Director shall not issue a replacement license for the reduced amount until the producer's previous license has been received for cancellation by the Director.
                (4) A producer's license shall be used in their entirety, except when they expire or are cancelled, in order of their date of issuance, i.e., an interim license must be completely used before shipment permits can be issued against an interim supplemental license.
                (5) Outstanding licenses issued by the Director automatically expire at midnight, December 31, of each calendar year. No unused allocation of duty-exemption may be carried over into the subsequent calendar year.
                (6) The Director shall ensure that all licenses issued are conspicuously marked to show the type of license issued, the identity of the producer, and the year for which the license is valid. All licenses shall bear the signature of the Director.
                (7) Each producer is responsible for the security of its licenses. The loss of a license shall be reported immediately to the Director. Defacing, tampering with, and unauthorized use of a license are forbidden.
                (b) Shipment Permit Requirements (ITA-340). (1) Producers may obtain shipment permits from the territorial government officials designated by the Governor. Permits may also be produced in any computerized or other format or medium approved by the Departments. The permit is for use against a producer's valid duty-exemption license and a permit must be completed for every duty-free shipment.

                (2) Each permit must specify the license and permit number, the number of watches and watch movements included in the shipment, the unused balance remaining on the producer's license, pertinent shipping information and must have the certification statement signed by an official of the licensee's company. A copy of the completed permit must be sent electronically or taken to the designated territorial government officials, no later than the day of shipment, for confirmation that the producer's duty-exemption license has not been exceeded and that the permit is properly completed.
                (3) The permit (form ITA-340) shall be filed with Customs along with the other required entry documents to receive duty-free treatment unless the importer or its representative clears the documentation through Customs' automated broker interface. Entries made electronically do not require the submission of a permit to Customs, but the shipment data must be maintained as part of a producer's recordkeeping responsibilities for the period prescribed by Customs' recordkeeping regulations. Bureau of Customs and Border Protection Import Specialists may request the documentation they deem appropriate to substantiate claims for duty-free treatment, allowing a reasonable amount of time for the importer to produce the permit.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985; 61 FR 55885, Oct. 30, 1996]

                § 303.8
                Maintenance of duty-exemption entitlements.
                (a) The Secretaries may order a producer to show cause within 30 days of receipt of the order why the duty-exemption to which the firm would otherwise be entitled should not be cancelled, in whole or in part, if:
                (1) At any time after June 30 of the calendar year:

                (i) A producer's assembly and shipment record provides a reasonable basis to conclude that the producer will use less than 80 percent of its total allocation by the end of the calendar year, and

                (ii) The producer refuses a request from the Departments to relinquish that portion of its allocation which they conclude will not be used; or

                (2) A producer fails to satisfy or fulfill any term, condition or representation, whether undertaken by itself or prescribed by the Departments, upon which receipt of allocation has been predicated or upon which the Departments have relied in connection with the sale or transfer of a business together with its allocation; or

                (3) A producer, in the judgment of the Secretaries, has failed to make a meaningful contribution to the territory for a period of two or more consecutive calendar years, when compared with the performance of the duty-free watch assembly industry in the territory as a whole. This comparison shall include the producer's quantitative use of its allocations, amount of direct labor employed in the assembly of watches and watch movements, and the net amount of corporate income taxes paid to the government of the territory. If the producer fails to satisfy the Secretaries as to why such action should not be taken, the firm's allocation shall be reduced or cancelled, whichever is appropriate under the show-cause order. The eligibility of a firm whose allocation has been cancelled to receive further allocations may also be terminated.
                (b) The Secretaries may also issue a show-cause order to reduce or cancel a producer's allocation or production incentive certificate (see § 303.12, below), as appropriate, or to declare the producer ineligible to receive an allocation or certificate if it violates any regulation in this part, uses a form, license, permit, or certificate in an unauthorized manner, or fails to provide information or data required by these regulations or requested by the Secretaries or their delegates in the performance of their responsibilities.
                (c) If a firm's allocation is reduced or cancelled, or if a firm voluntarily relinquishes a part of its allocation, the Secretaries may:
                (1) Reallocate the allocation involved among the remaining producers in a manner best suited to contribute to the economy of the territory;
                (2) Reallocate the allocation or part thereof to a new entrant applicant; or
                (3) Do neither of the above if deemed in the best interest of the territories and the established industry.
                [49 FR 17740, Apr. 25, 1984, as amended at 61 FR 55885, Oct. 31, 1996]

                § 303.9
                Restrictions on the transfer of duty-exemptions.
                (a) The sale or transfer of a duty-exemption from one firm to another shall not be permitted.

                (b) The sale or transfer of a business together with its duty-exemption shall be permitted with prior written notification to the Departments. Such notification shall be accompanied by certifications and representations, as appropriate, that:

                (1) If the transferee is a subsidiary of or in any way affiliated with any other company engaged in the production of watch movements components being offered for sale to any territorial producer, the related company or companies will continue to offer such watch and watch movement components on equal terms and conditions to all willing buyers and shall not engage in any practice, in regard to the sale of components, that competitively disadvantages the non-affiliated territorial producers vis-a-vis the territorial subsidiary;

                (2) The sale or transfer price for the business together with its duty-exemption does not include the capitalization of the duty-exemption per se;

                (3) The transferee is neither directly or indirectly affiliated with any other territorial duty-exemption holder in any territory;
                (4) The transferee will not modify the watch assembly operations of the duty-exemption firm in a manner that will significantly diminish its economic contributions to the territory.
                (c) At the request of the Departments, the transferee shall permit representatives of the Departments to inspect whatever records are necessary to establish to their satisfaction that the certifications and representations contained in paragraph (b) of this section have been or are being met.
                (d) Any transferee who is either unwilling or unable to make the certifications and representations specified in paragraph (b) of this section shall secure the Departments' approval in advance of the sale or transfer of the business together with its duty-exemption. The request for approval shall specify which of the certifications specified in paragraph (b) of this section the firm is unable or unwilling to make, and give reasons why such fact should not constitute a basis for the Departments' disapproval of the sale or transfer.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985]

                §§ 303.10-303.11
                [Reserved]

                § 303.12
                Issuance and use of production incentive certificates.
                (a) Issuance of certificates. (1) The total annual amount of the Certificate of Entitlement, Form ITA-360, may be divided and issued on a biannual basis. The first portion of the total annual certificate amount will be based on reported duty-free shipments and creditable wages, determined from the wages as reported on the employer's first two quarterly federal tax returns (941-SS), paid during the first six months of the calendar year, using the formula in § 303.14(c). The Departments require the receipt of the data by July 31 for each producer who wishes to receive an interim duty refund certificate. The interim duty refund certificate will be issued on or before August 31 of the same calendar year in which the wages were earned unless the Departments have unresolved questions. The process of determining the total annual amount of the duty refund will be based on verified creditable wages, duty-free shipments into the customs territory of the United States, creditable health insurance, life insurance and pension benefits and the duty differential, if watch tariffs have been reduced during the calendar year. The completed annual application (Form ITA-334P) shall be received by the Departments on or before January 31 and the annual verification of data and the calculation of each producer's total annual duty refund, based on the verified data, will continue to take place in February. Once the calculations for each producer's duty refund has been completed, the portion of the duty refund that has already been issued to each producer will be deducted from the total amount of each producer's annual duty refund amount. The duty refund certificate will continue to be issued by March 1 unless the Departments have unresolved questions.
                (2) Certificates shall not be issued to more than one company in the territories owned or controlled by the same corporate entity.
                (b) Securities and handling of certificates. (1) Certificate holders are responsible for the security of the certificates. The certificates shall be kept at the territorial address of the insular producer or at another location having the advance approval of the Departments.
                (2) All refund requests made pursuant to the certificates shall be entered on the reverse side of the certificate.
                (3) Certificates shall be returned by registered, certified or express carrier mail to the Departments when:
                (i) A refund is requested which exhausts the entitlement on the face of the certificate,
                (ii) The certificate expires, or
                (iii) The Departments request their return with good cause.
                (4) Certificate entitlements may be transferred according to the procedures described in (c) of this section.
                (c) The use and transfer of certificate entitlements. (1) Insular producers issued a certificate may request a refund by executing Form ITA-361P (see § 303.2(b)(5) and the instructions on the form). After authentication by the Department of Commerce, Form ITA-361P may be used to obtain duty refunds on articles that entered the customs territory of the United States duty paid except for any article containing a material which is the product of a country to which column 2 rates of duty apply. Articles for which duty refunds are claimed must have entered the customs territory of the United States during the two-year period prior to the issue date of the certificate or during the one-year period the certificate remains valid. Copies of the appropriate Customs entries must be provided with the refund request in order to establish a basis for issuing the claimed amounts. Certification regarding drawback claims and liquidated refunds relating to the presented entries is required from the claimant on the form.
                (2) Regulations issued by the Bureau of Customs and Border Protection, U.S. Department of Homeland Security, govern the refund of duties under Public Law 97-446, as amended by Public Law 103-465 and Public Law 108-429. If the Departments receive information from the Bureau of Customs and Border Protection that a producer has made unauthorized use of any official form, they shall cancel the affected certificate.
                (3) The insular producer may transfer a portion of all of its certificate entitlement to another party by entering in block C of Form ITA-361P the name and address of the party.
                (4) After a Form ITA-361P transferring a certificate entitlement to a party other than the certificate holder has been authenticated by the Department of Commerce, the form may be exchanged for any consideration satisfactory to the two parties. In all cases, authenticated forms shall be transmitted to the certificate holder or its authorized custodian for disposition (see paragraph (b) above).
                (5) All disputes concerning the use of an authenticated Form ITA-361P shall be referred to the Departments for resolution. Any party named on an authenticated Form ITA-361P shall be considered an “interested party” within the meaning of § 303.13 of this part.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985; 56 FR 9621, Mar. 7, 1991; 61 FR 55885, Oct. 30, 1996; 66 FR 34812, July 2, 2001; 70 FR 67648, Nov. 8, 2005; 72 FR 16714, Apr. 5, 2007]

                § 303.13
                Appeals.
                (a) Any official decision or action relating to the allocation of duty-exemptions or to the issuance or use of production incentive certificates may be appealed to the Secretaries by any interested party. Such appeals must be received within 30 days of the date on which the decision was made or the action taken in accordance with the procedures set forth in paragraph (b) of this section. Interested parties may petition for the issuance of a rule, or amendment or repeal of a rule issued by the Secretaries. Interested parties may also petition for relief from the application of any rule on the basis of hardship or extraordinary circumstances resulting in the inability of the petitioner to comply with the rule.

                (b) Petitions shall bear the name and address of the petitioner and the name and address of the principal attorney or authorized representative (if any) for the party concerned. They shall be addressed to the Secretaries and filed in one original and two copies with the U.S. Department of Commerce, Enforcement and Compliance, International Trade Administration, Washington, D.C. 20230, Attention: Statutory Import Programs Staff. Petitions shall contain the following:
                (1) A reference to the decision, action or rule which is the subject of the petition;
                (2) A short statement of the interest of the petitioner;
                (3) A statement of the facts as seen by the petitioner;
                (4) The petitioner's argument as to the points of law, policy of fact. In cases where policy error is contended, the alleged error together with the policy the submitting party advocates as the correct one should be described in full;
                (5) A conclusion specifying the action that the petitioner believes the Secretaries should take.
                (c) The Secretaries may at their discretion schedule a hearing and invite the participation of other interested parties.
                (d) The Secretaries shall communicate their decision which shall be final, to the petitioner by registered mail.
                (e) If the outcome of any petition materially affects the amount of the petitioner's allocation and if the Secretaries' consideration of the petition continues during the calculation of the annual allocations, the Secretaries shall set aside a portion of the affected territorial share in an amount which, in their judgment, protects the petitioner's interest and shall allocate the remainder among the other producers.
                [49 FR 17740, Apr. 25, 1984, as amended at 56 FR 9622, Mar. 7, 1991; 72 FR 16714, Apr. 5, 2007; 78 FR 72571, Dec. 3, 2013]

                § 303.14
                Allocation factors, duty refund calculations and miscellaneous provisions.
                (a) The allocation formula. (1) Except as provided in (a)(2) of this section, the territorial shares (excluding any amount set aside for possible new entrants) shall be allocated among the several producers in each territory in accordance with the following formula:
                (i) Fifty percent of the territorial share shall be allocated on the basis of the net dollar amount of economic contributions to the territory consisting of the dollar amount of creditable wages, up to an amount equal to 65% of the contribution and benefit base for Social Security as defined in the Social Security Act for the year in which the wages were earned, paid by each producer to territorial residents, plus the dollar amount of income taxes (excluding penalty and interest payments and deducting any income tax refunds and subsidies paid by the territorial government), and
                (ii) Fifty percent of the territorial share shall be allocated on the basis of the number of units of watches and watch movements assembled in the territory and entered by each producer duty-free into the customs territory of the United States.
                (2) If there is only one producer in a territory, the entire territorial share, excluding any amount set aside for possible new entrants, may be allocated without recourse to any distributive formula.
                (b) Minimum assembly requirements and prohibition of preferential supply relationship. (1) No insular watch movement or watch may be entered free of duty into the customs territory of the United States unless the producer used 30 or more discrete parts and components to assemble a mechanical watch movement and 33 or more discrete parts and components to assemble a mechanical watch.
                (2) Quartz analog watch movements must be assembled from parts knocked down to the maximum degree possible for the technical capabilities of the insular industry as a whole. The greatest degree of disassembly specified, for each manufacturer's brand and model, by any producer in any territory purchasing such brands and models shall constitute the disassembly required as a minimum for the industry as a whole.

                (3) Watch movements and watches assembled from components with a value of more than $300 for watch movements and $3000 for watches shall not be eligible for duty-exemption upon entry into the U.S. Customs territory. Value means the value of the merchandise plus all charges and costs incurred up to the last point of shipment (i.e., prior to entry of the parts and components into the territory).

                (4) No producer shall accept from any watch parts and components supplier advantages and preferences which might result in a more favorable competitive position for itself vis-a-vis other territorial producers relying on the same supplier. Disputes under this paragraph may be resolved under the appeals procedures contained in § 303.13(b).
                (c) Calculation of the value of the mid-year production incentive certificates. (1) The value of each producer's certificate shall equal the producer's average creditable wage per unit shipped during the first six months of the calendar year multiplied by the sum of:
                (i) The number of units shipped up to 300,000 units times a factor of 90%; plus
                (ii) Incremental units shipped up to 450,000 units times a factor of 85%; plus
                (iii) Incremental units shipped up to 600,000 units times a factor of 80%; plus
                (iv) Incremental units shipped up to 750,000 units times a factor of 75%.
                (2) Calculation of the value of the annual production incentive certificates. The value of each producer's certificate shall equal the producer's average creditable benefit per unit based on creditable wages, health insurance, life insurance and pension benefits plus any duty differential, if applicable, averaged from the amount of duty free units shipped during the calendar year multiplied by the sum of the following to obtain the total verified amount of the annual duty-refund per company. This amount would then be adjusted by deducting the amount of the mid-year duty-refund already issued.
                (i) The number of units shipped up to 300,000 units times a factor of 90%; plus
                (ii) Incremental units shipped up to 450,000 units times a factor of 85%; plus
                (iii) Incremental units shipped up to 600,000 units times a factor of 80%; plus
                (iv) Incremental units shipped up to 750,000 units times a factor of 75%.
                (3) The Departments may make adjustments for these data in the manner set forth in § 303.5(c).
                (d) New entrant invitations. Applications from new firms are invited for any unused portion of any territorial share.
                (e) Territorial shares. The shares of the total duty exemption are 1,866,000 for the Virgin Islands, 500,000 for Guam, 500,000 for American Samoa, and 500,000 for the Northern Mariana Islands.
                [49 FR 17740, Apr. 25, 1984, as amended at 50 FR 43568, Oct. 28, 1985; 53 FR 17825, May 19, 1988; 53 FR 52679, Dec. 29, 1988; 53 FR 52994, Dec. 30, 1988; 56 FR 9622, Mar. 7, 1991; 58 FR 21348, Apr. 21, 1993; 59 FR 8847, 8848, Feb. 24, 1994; 61 FR 55885, Oct. 30, 1996; 63 FR 49667, Sept. 17, 1998; 65 FR 8049, Feb. 17, 2000; 69 FR 51533, Aug. 20, 2004; 72 FR 16714, Apr. 5, 2007]

              Subpart B—Jewelry

                Source:
                64 FR 67150, Dec. 1, 1999, unless otherwise noted.

                § 303.15
                Purpose.
                (a) This subpart implements the responsibilities of the Secretaries of Commerce and the Interior (“the Secretaries”) under Pub. L. 106-36, enacted 25 June 1999 which substantially amended Pub. L. 97-446, enacted 12 January 1983, amended by Pub. L. 89-805, enacted 10 November 1966, amended by Pub. L. 94-88, enacted 8 August 1975, amended by Pub. L. 94-241, enacted 24 March 1976, and amended by Pub. L. 103-465, enacted 8 December 1994, and Public Law 108-429, enacted on 3 December 2004.

                (b) The amended law provides for the issuance of certificates to insular jewelry producers who have met the requirements of the laws and regulations, entitling the holder (or any transferee) to obtain refunds of duties on any article imported into the customs territory of the United States duty paid except for any article containing a material which is the product of a country to which column 2 rates of duty apply. The amounts of these certificates may not exceed specified percentages of the producers' verified creditable wages in the insular possessions (90% of wages paid for the production of the first 300,000 duty-free units and declining percentages, established by the Secretaries, of wages paid for incremental production up to 10,000,000 units by each producer) nor an aggregate annual amount for all certificates exceeding $5,000,000 adjusted for growth by the ratio of the previous year's gross national product to the gross national product in 1982. However, the law specifies that watch producer benefits are not to be diminished as a consequence of extending the duty refund to jewelry manufacturers. In the event that the amount of the calculated duty refunds for watches and jewelry exceeds the total aggregate annual amount that is available, the watch producers shall receive their calculated amounts and the jewelry producers would receive amounts proportionately reduced from the remainder. Refund requests are governed by regulations issued by the Department of Homeland Security (see 19 CFR 7.4).
                (c) Section 2401(a) of Pub. L. 106-36 and additional U.S. note 5 to chapter 91 of the HTSUS authorize the Secretaries to issue regulations necessary to carry out their duties. The Secretaries may cancel or restrict the certificate of any insular manufacturer found violating the regulations.
                [49 FR 17740, Apr. 25, 1984, as amended at 70 FR 67648, Nov. 8, 2005; 72 FR 16715, Apr. 5, 2007; 73 FR 34857, June 19, 2008]

                § 303.16
                Definitions and forms.
                (a) Definitions. For purposes of the subpart, unless the context indicates otherwise:
                (1) Act means Pub. L. 97-446, enacted 12 January 1983 (19 U.S.C. 1202), 96 Stat. 2329, as amended by Pub. L. 103-465, enacted on 8 December 1994, 108 Stat. 4991 and, as amended by Pub. L. 106-36, enacted on 25 June 1999, and Public Law 108-429, enacted on 3 December 2004.
                (2) Secretaries means the Secretary of Commerce and the Secretary of the Interior or their delegates, acting jointly.
                (3) Director means the Director of the Statutory Import Programs Staff, International Trade Administration, U.S. Department of Commerce.
                (4) Sale or transfer of a business means the sale or transfer of control, whether temporary or permanent, over a firm which is eligible for a jewelry program duty-refund to any other firm, corporation, partnership, person or other legal entity by any means whatsoever, including, but not limited to, merger and transfer of stock, assets or voting trusts.
                (5) New firm means a jewelry company which has requested in writing to the Secretaries permission to participate in the program. In addition to any other information required by the Secretaries, new firm requests shall include a representation that the company agrees to abide by the laws and regulations of the program, an outline of the company's anticipated economic contribution to the territory (including the number of employees) and a statement as to whether the company is affiliated by ownership or control with any other watch or jewelry company in the insular possessions. The Secretaries will then review the request and make a decision based on the information provided and the economic contribution to the territory. A new jewelry firm may not be affiliated through ownership or control with any other jewelry duty-refund recipient. In assessing whether persons or parties are affiliated, the Secretaries will consider the following factors, among others: stock ownership; corporate or family groupings; franchise or joint venture agreements; debt financing; and close supplier relationships. The Secretaries may not find that control exists on the basis of these factors unless the relationship has the potential to affect decisions concerning production, pricing, or cost. Also, no jewelry duty-refund recipient may own or control more than one watch duty-refund recipient.
                (6) Jewelry producer means a company, located in one of the insular territories (see paragraph (a)(8) of this section), that produces jewelry provided for in heading 7113, HTSUS, which meets all the Bureau of Customs and Border Protection requirements for duty-free entry set forth in General Note 3(a)(iv), HTSUS, and 19 CFR 7.3, and has maintained its eligibility for duty refund benefits by complying with these regulations.
                (7) Unit of Jewelry means a single article (e.g., ring, bracelet, necklace), pair (e.g, cufflinks), gram for links which are sold in grams and stocked in grams, and other subassemblies and components in the customary unit of measure they are stocked and sold within the industry.
                (8) Territories, territorial and insular possessions refers to the insular possessions of the United States (i.e., the U.S. Virgin Islands, Guam, American Samoa and the Northern Mariana Islands).

                (9) Creditable wages and associated creditable fringe benefits and creditable duty differentials eligible for the duty refund benefit include, but are not limited to, the following:
                (i) Wages up to an amount equal to 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the insular possessions employed in a firm's manufacture of HTSUS heading 7113 articles of jewelry which are a product of the insular possessions and have met the Bureau of Customs and Border Protection's criteria for duty-free entry into the United States, plus any wages paid for the repair of non-insular HTSUS heading 7113 jewelry up to an amount equal to 50 percent of the firm's total creditable wages.
                (A) Wages paid to persons engaged in the day-to-day assembly operations at the company office, wages paid to administrative employees working on the premises of the company office, wages paid to security operations employees and wages paid to servicing and maintenance employees if these services are integral to the assembly and manufacturing operations and the employees are working on the premises of the company office.
                (B) Wages paid to permanent residents who are employees of a new company involved in the jewelry assembly and jewelry manufacturing of HTSUS heading 7113 jewelry for up to 18 months after such jewelry company commences jewelry manufacturing or jewelry assembly operations in the insular possessions.
                (C) Wages paid when a maximum of two program producers work on a single piece of HTSUS heading 7113 jewelry which entered the United States free of duty under the program. Wages paid by the two producers will be credited proportionally provided both producers demonstrate to the satisfaction of the Secretaries that they worked on the same piece of jewelry, the jewelry received duty-free treatment into the customs territory of the United States, and the producers maintained production and payroll records sufficient for the Departments' verification of the creditable wage portion (see § 303.17(b)).
                (D) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations may be credited proportionally provided the firm maintains production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
                (E) Wages paid to new permanent residents who have met the requirements of permanent residency in accordance with the Departments' regulations along with meeting all other creditable wage requirements of the regulations, which must be documented and verified to the satisfaction of the Secretaries.
                (ii) The combined creditable amount of individual health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 130 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the individual health plans weighted by the number of individual contracts in each plan. The yearly amount is calculated by the Office of Personnel Management and includes the “weighted average” of all individual health insurance costs for federal employees throughout the United States. The maximum life insurance allowed within this combined amount is $50,000 for each employee. Only during the time employees are earning creditable wages are they entitled to health and life insurance duty refund benefits under the program.

                (A) The combined creditable amount of family health and life insurance per year, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, may not exceed 150 percent of the “weighted average” yearly federal employee health insurance, which is calculated from the family health plans weighted by the number of family contracts in each plan. The yearly amount is calculated by the Office of Personnel Management and includes the “weighted average” of all family health insurance costs for federal employees throughout the United States. The maximum life insurance allowed within this combined amount is $50,000 dollars for each employee. Only during the time employees are earning creditable wages are they entitled to health and life insurance duty refund benefits under the program.
                (B) The creditable pension benefit, for each full-time permanent resident employee who works on the premises of the company office and whose wages qualify as creditable, is up to 3 percent of the employee's wages unless the employee's wages exceed the maximum annual creditable wage allowed under the program (see paragraph (a)(9)(i) of this section). An employee earning more than the maximum creditable wage allowed under the program will be eligible for only 3 percent of the maximum creditable wage. Only during the time employees are earning creditable wages are they entitled to pension duty refund benefits under the program.
                (10) Non-creditable wages and associated non-creditable fringe benefits ineligible for the duty refund benefit include, but are not limited to, the following:
                (i) Wages over 65 percent of the contribution and benefit base for Social Security, as defined in the Social Security Act for the year in which wages were earned, paid to permanent residents of the territories employed in a firm's 91/5 heading 7113, HTSUS, jewelry program.
                (A) Wages paid for the repair of jewelry in an amount over 50 percent of the firm's total creditable wages.
                (B) Wages paid to employees who are involved in assembling HTSUS heading 7113 jewelry beyond 18 months after such jewelry company commences jewelry manufacturing or jewelry assembly operations in the insular possessions if the jewelry does not meet the Bureau of Customs and Border Protection's substantial transformation requirements and other criteria for duty-free enter into the United States.
                (C) Wages paid for the assembly and manufacturing of jewelry which is shipped to places outside the customs territory of the United States; wages paid for the assembly and manufacturing of jewelry that does not meet the regulatory assembly requirements; or wages paid for the assembly and manufacture of jewelry that contain HTSUS column 2 components.
                (D) Wages paid to those persons not engaged in the day-to-day assembly operations on the premises of the company office, wages paid to any outside consultants, wages paid to outside the office personnel, including but not limited to, lawyers, gardeners, construction workers and accountants; wages paid to employees not working on the premises of the company office; wages paid to employees working with a non-program producer to create a single piece of HTSUS heading 7113 jewelry whether or not it entered the United States free of duty; and wages paid to employees who do not qualify as permanent residents in accordance with the Departments' regulations.
                (E) Wages paid to persons engaged in both creditable and non-creditable assembly and repair operations if the producer does not maintain production, shipping and payroll records adequate for the Departments' verification of the creditable portion.
                (ii) Any costs, for the year in which the wages were paid, of the combined creditable amount of individual health and life insurance for employees over 130 percent of the “weighted average” yearly individual health insurance costs for all federal employees. The cost of any life insurance over the $50,000 limit for each employee. Any health and life insurance costs during the time an employee is not earning creditable wages.
                (A) Any costs, for the year in which the wages were paid, of the combined creditable amount of family health and life insurance for employees over 150 percent of the “weighted average” yearly family health insurance costs for all federal employee. The cost of any life insurance over the $50,000 limit for each employee. Any health and life insurance costs during the time an employee is not earning creditable wages.

                (B) Any pension benefits that were not based on associated creditable wages. The cost of any pension benefit per employee over 3 percent of the employee's creditable wages unless the employee's wages exceed the maximum annual creditable annual maximum creditable wage allowed under the program (see paragraph (a)(9)(i) of this section). Employees earning over the maximum creditable wage allowed under the program would have a creditable annual pension benefit of up to 3 percent of the maximum creditable wage and wages over 3 percent of the maximum creditable wage would not be creditable.
                (11) Dutiable jewelry includes jewelry which does not meet the requirements for duty-free entry under General Note 3(a)(iv), HTSUS, and 19 CFR 7.3, contains any material which is the product of any country with respect to which Column 2 rates of duty apply or is ineligible for duty-free treatment pursuant to other laws or regulations.
                (12) Permanent resident means a person with one residence which is in the insular possessions or a person with one or more residences outside the insular possessions who meets criteria that include maintaining his or her domicile in the insular possessions, residing (i.e., be physically present for at least 183 days within a continuous 365 day period year) and working in the territory at a program company, and maintaining his or her primary office for day-to-day work in the insular possessions.
                (b) Forms. (1) ITA—334P “Annual Application for License to Enter Watches and Watch Movements into the Customs Territory of the United States.” The Director shall issue instructions for jewelry manufacturers on the completion of the relevant portions of the form. The form must be completed annually by all jewelry producers desiring to receive a duty refund and, with special instructions for its completion, by producers who wish to receive the total annual amount of the duty refund in installments on a biannual basis.
                (2) ITA-360P “Certificate of Entitlement to Secure the Refund of Duties on Articles that Entered the Customs Territory of The United State Duty Paid.” This document authorizes an insular jewelry producer to request the refund of duties on imports of articles that entered the customs territory of the United States duty paid, with certain exceptions, up to the specified value of the certificate. Certificates may be used to obtain duty refunds only when presented with a properly executed Form ITA-361P.
                (3) ITA-361P “Request for Refund of Duties on Articles that Entered the Customs Territory of the United States Duty Paid.” This form must be completed to obtain the refund of duties authorized by the Director through Form ITA-360P. After authentication by the Department of Commerce, it may be used for the refund of duties on items which were entered into the customs territory of the United States duty paid during a specified time period. Copies of the appropriate Customs entries must be provided with this form to establish a basis for issuing the claimed amounts. The forms may also be used to transfer all or part of the producer's entitlement to another party (see Sec. 303.19(c)).
                [64 FR 67150, Dec. 1, 1999, as amended at 65 FR 8049, Feb. 17, 2000; 66 FR 34812, July 2, 2001; 67 FR 77409, Dec. 18, 2202; 70 FR 67648, Nov. 8, 2005; 72 FR 16715, Apr. 5, 2007; 73 FR 62881, Oct. 22, 2008]

                § 303.17
                Application for annual duty-refunds.
                (a) Form ITA-334P shall be furnished to producers by January 1 and must be completed and returned to the Director no later than January 31 of each calendar year.
                (b) All data supplied are subject to verification by the Secretaries and no duty refund shall be made to producers until the Secretaries are satisfied that the data are accurate. To verify the data, representatives of the Secretaries shall have access to relevant company records including, but not limited to:
                (1) Work sheets used to answer all questions on the application form, as specified by the instructions;
                (2) Original records from which such data are derived;
                (3) Records pertaining to ownership and control of the company;

                (4) Records pertaining to all duty-free and dutiable shipments of HTSUS 7113 jewelry, including Customs entry documents, or the certificate of origin for the shipment, or, if a company did not receive such documents from Customs, a certification from the consignee that the jewelry shipment received duty-free treatment, or a certification from the producer, if the producer can attest that the jewelry shipment received duty-free treatment;
                (5) Records pertaining to corporate income taxes, gross receipts taxes and excise taxes paid by each producer in the territories;
                (6) Customs, bank, payroll, including time cards, production records, and all shipping records including the importer of record number and proof of residency, as requested;
                (7) All records pertaining to health insurance, life insurance and pension benefits for each employee;
                (8) Records on purchases of components and sales of jewelry, including proof of payment; and
                (9) Any other records in the possession of the parent or affiliated companies outside the territory pertaining to any aspect of the producer's jewelry operations.
                (c) Data verification shall be performed in the territories, unless other arrangements satisfactory to the Departments are made in advance, by the Secretaries' representatives by the end of February of each calendar year. It is the responsibility of each program producer to make the appropriate data available to the Departments' officials for the calendar year for which the annual verification is being performed and no further data, from the calendar year for which the audit is being completed, will be considered for benefits at any time after the audit has been completed. In the event of discrepancies between the application and substantiating data before the audit is complete, the Secretaries shall determine which data will be used in the calculation of the duty refund and allocations.
                (d) Records subject to the requirements of paragraph (b) of this section, shall be retained for a period of two years following their creation.
                [49 FR 17740, Apr. 25, 1984, as amended at 66 FR 34813, July 2, 2001; 70 FR 67650, Nov. 8, 2005; 72 FR 16715, Apr. 5, 2007]

                § 303.18
                Sale or transfer of business.
                (a) The sale or transfer of a business together with its duty refund entitlement shall be permitted with prior written notification to the Departments. Such notification shall be accompanied by certifications and representations, as appropriate, that:
                (1) The transferee is neither directly nor indirectly affiliated with any other territorial duty refund jewelry recipient in any territory;
                (2) The transferee will not modify the jewelry operations in a manner that will significantly diminish its economic contributions to the territory.
                (b) At the request of the Departments, the transferee shall permit representatives of the Departments to inspect whatever records are necessary to establish to their satisfaction that the certifications and representations contained in paragraph (a) of this section have been or are being met.
                (c) Any transferee who is either unwilling or unable to make the certifications and representations specified in paragraph (a) of this section shall secure the Departments' approval in advance of the sale or transfer of the business. The request for approval shall specify which of the certifications specified in paragraph (a) of this section the firm is unable or unwilling to make, and give reasons why such fact should not constitute a basis for the Departments' disapproval of the sale or transfer.

                § 303.19
                Issuance and use of production incentive certificates.
                (a) Issuance of certificates. (1) The total annual amount of the Certificate of Entitlement, Form ITA-360, may be divided and issued on a biannual basis. The first portion of the total annual certificate amount will be based on reported duty-free shipments and creditable wages, determined from the wages as reported on the employer's first two quarterly federal tax returns (941-SS), paid during the first six month of the calendar year, using the formula in § 303.20(b). The Departments require the receipt of the data by July 31 for each producer who wishes to receive an interim duty refund certificate. The interim duty refund certificate will be issued on or before August 31 of the same year in which the wages were earned unless the Departments have unresolved questions. The process of determining the total annual amount of the duty refund will be based on verified creditable wages, duty-free shipments into the customs territory of the United States, creditable health insurance, life insurance and pension benefits and the duty differential, if watch tariffs have been reduced during the calendar year. The completed annual application (Form ITA-334P) shall be received by the Departments on or before January 31 and the annual verification of data and calculation of each producer's total annual duty refund, based on the verified data, will continue to take place in February. Once the calculations for each producer's duty refund has been completed, the portion of the duty refund that has already been issued to each producer will be deducted from the total amount of each producer's annual duty refund amount. The duty refund certificate will continue to be issued by March 1 unless the Departments have unresolved questions.
                (2) Certificates shall not be issued to more than one jewelry company in the territories owned or controlled by the same corporate entity.
                (b) Security and handling of certificates. (1) Certificate holders are responsible for the security of the certificates. The certificates shall be kept at the territorial address of the producer or at another location having the advance approval of the Departments.
                (2) All refund requests made pursuant to the certificates shall be entered on the reverse side of the certificate.
                (3) Certificates shall be returned by registered, certified or express carrier mail to the Department of Commerce when:
                (i) A refund is requested which exhausts the entitlement on the face of the certificate,
                (ii) The certificate expires, or
                (iii) The Departments request their return with good cause.
                (4) Certificate entitlements may be transferred according to the procedures described in paragraph (c) of this section.
                (c) The use and transfer of certificate entitlements. (1) Insular producers issued a certificate may request a refund by executing Form ITA-361P (see § 303.16(b)(3)) and the instruction on the form). After authentication by the Department of Commerce, Form ITA-361P may be used to obtain duty refunds on article that entered the customs territory of the United States duty paid. Duties on an article which is the product of a country with respect to column 2 rates of duty apply may not be refunded Articles for which duty refunds are claimed must have entered the customs territory of the United States during the two-year period prior to the issue date of the certificate or during the one-year period the certificate remains valid. Copies of the appropriate Customs entries must be provided with the refund request in order to establish a basis for issuing the claimed amounts. Certification regarding drawback claims and liquidated refunds relating to the presented entries is required from the claimant on the form.
                (2) Regulations issued by the Bureau of Customs and Border Protection, U.S. Department of Homeland Security, govern the refund of duties under 19 CFR 7.4. If the Departments receive information from the Bureau of Customs and Border Protection that a producer has made unauthorized use of any official form, they may cancel the affected certificate.
                (3) The territorial producer may transfer a portion of all of its certificate entitlement to another party by entering in block C of Form ITA-361P the name and address of the party.
                (4) After a Form ITA-361P transferring a certificate entitlement to a party other than the certificate holder has been authenticated by the Department of Commerce, the form may be exchanged for any consideration satisfactory to the two parties. In all cases, authenticated forms shall be transmitted to the certificate holder or its authorized custodian for disposition (see paragraph (b) of this section).

                (5) All disputes concerning the use of an authenticated Form ITA-361P shall be referred to the Departments for resolution. Any party named on an authenticated Form ITA-361P shall be considered an “interested party” within the meaning of § 303.21 of this part.
                [49 FR 17740, Apr. 25, 1984, as amended at 66 FR 34813, July 2, 2001; 70 FR 67650, Nov. 8, 2005; 72 FR 16715, Apr. 5, 2007]

                § 303.20
                Duty refund calculations and miscellaneous provisions.
                (a) Territorial jewelry producers are entitled to duty refund certificates only for jewelry that they produce which is provided for in heading 7113, HTSUS, is a product of a territory and otherwise meets the requirements for duty-free entry under General Note 3 (a)(iv), HTSUS, and 19 CFR 7.3.
                (1) An article of jewelry is considered to be a product of a territory if:
                (i) The article is wholly the growth or product of the territory; or
                (ii) The article became a new and different article of commerce as a result of production or manufacture performed in the territories.
                (2) Eighteen month exemption. Any article of jewelry provided for in HTSUS heading 7113, assembled in the insular possessions by a new entrant jewelry manufacturer shall be treated as a product of the insular possessions if such article is entered into the customs territory of the United States no later than 18 months after such producer commences jewelry manufacturing or jewelry assembly operations in the insular possessions.
                (b) Calculation of the value of the mid-year production incentive certificates. (1) The value of each producer's certificate shall equal the producer's average creditable wage per unit shipped during the first six months of the calendar year multiplied by the sum of:
                (i) The number of units shipped up to 300,000 units times a factor of 90%; plus
                (ii) Incremental units shipped up to 3,533,334 units times a factor of 85%; plus
                (iii) Incremental units shipped up to 6,766,667 units times a factor of 80%; plus
                (iv) Incremental units shipped up to 10,000,000 units times a factor of 75%.
                (2) Calculation of the value of the annual production incentive certificates. The value of each producer's certificate shall equal the producer's average creditable benefit per unit based on creditable wages, health insurance, life insurance and pension benefits averaged from the amount of duty free units shipped during the calendar year multiplied by the sum of the following to obtain the total verified amount of the annual duty-refund per company. This amount would then be adjusted by deducting the amount of the mid-year duty-refund already issued.
                (i) The number of units shipped up to 300,000 units times a factor of 90%; plus
                (ii) Incremental units shipped up to 3,533,334 units times a factor of 85%; plus
                (iii) Incremental units shipped up to 6,766,667 units times a factor of 80%; plus
                (iv) Incremental units shipped up to 10,000,000 units times a factor of 75%.
                [64 FR 67150, Dec. 1, 1999, as amended at 70 FR 67650, Nov. 8, 2005; 72 FR 16715, Apr. 5, 2007; 73 FR 34857, June 19, 2008]

                § 303.21
                Appeals.
                (a) Any official decision or action relating to the issuance or use of production incentive certificates may be appealed to the Secretaries by any interested party. Such appeals must be received within 30 days of the date on which the decision was made or the action taken in accordance with the procedures set forth in paragraph (b) of this section. Interested parties may petition for the issuance of a rule, or amendment or repeal of a rule issued by the Secretaries. Interested parties may also petition for relief from the application of any rule on the basis of hardship or extraordinary circumstances resulting in the inability of the petitioner to comply with the rule.
                (b) Petitions shall bear the name and address of the petitioner and the name and address of the principal attorney or authorized representative (if any) for the party concerned. They shall be addressed to the Secretaries and filed in one original and two copies with the U.S. Department of Commerce, Enforcement and Compliance, International Trade Administration, Washington, DC 20230, Attention: Statutory Import Programs Staff. Petitions shall contain the following:

                (1) A reference to the decision, action or rule which is the subject of the petition;

                (2) A short statement of the interest of the petitioner;
                (3) A statement of the facts as seen by the petitioner;
                (4) The petitioner's argument as to the points of law, policy or fact. In cases where policy error is contended, the alleged error together with the policy the submitting party advocates as the correct one should be described in full;
                (5) A conclusion specifying the action that the petitioner believes the Secretaries should take.
                (c) The Secretaries may at their discretion schedule a hearing and invite the participation of other interested parties.
                (d) The Secretaries shall communicate their decision, which shall be final, to the petitioner by registered, certified or express mail.
                [64 FR 67150, Dec. 1, 1999, as amended at 72 FR 16716; 78 FR 72571, Dec. 3, 2013]

            Pt. 310
            PART 310—OFFICIAL U.S. GOVERNMENT RECOGNITION OF AND PARTICIPATION IN INTERNATIONAL EXPOSITIONS HELD IN THE UNITED STATES

              Sec.
              310.1
              Background and purpose.
              310.2
              Definitions.
              310.3
              Applications for Federal recognition.
              310.4
              Action on application.
              310.5
              Report of the Secretary on Federal recognition.
              310.6
              Recognition by the President.
              310.7
              Statement for Federal participation.
              310.8
              Proposed plan for Federal participation.
              310.9
              Report of the Secretary on Federal participation.

              Authority:
              Pub. L. 91-269, 84 Stat. 271 (22 U.S.C. 2801 et seq.).

              Source:
              40 FR 34107, Aug. 14, 1975, unless otherwise noted. Redesignated at 46 FR 57457, Nov. 24, 1981.

              § 310.1
              Background and purpose.

              The regulations in this part are issued under the authority of Pub. L. 91-269 (84 Stat. 271, 22 U.S.C. 2801 et seq.) which establishes an orderly procedure for Federal Government recognition of, and participation in, international expositions to be held in the United States. The Act provides, inter alia, that Federal recognition of an exposition is to be granted upon a finding by the President that such recognition will be in the national interest. In making this finding, the President is directed to consider, among other factors, a report from the Secretary of Commerce as to the purposes and reasons for an exposition and the extent of financial and other support to be provided by the State and local officials and business and community leaders where the exposition is to be held, and a report by the Secretary of State to determine whether the exposition is qualified for registration under Bureau of International Expositions (BIE) rules. The BIE is an international organization established by the Paris Convention of 1928 (T.I.A.S. 6548 as amended by T.I.A.S. 6549) to regulate the conduct and scheduling of international expositions in which foreign nations are officially invited to participate. The BIE divides international expositions into different categories and types and requires each member nation to observe specified minimum time intervals in scheduling each of these categories and types of expositions. 1

                Under BIE rules, member nations may not ordinarily participate in an international exposition unless such exposition has been approved by the BIE. The United States became a member of the BIE on April 30, 1968, upon ratification of the Paris Convention by the U.S. Senate (114 Cong. Rec. 11012).

                  1 The BIE defines a General Exposition of the First Category as an exposition dealing with progress achieved in a particular field applying to several branches of human activity at which the invited countries are obligated to construct national pavilions. A General Exposition of the Secondary Category is a similar exposition at which invited countries are not authorized to construct national pavilions, but occupy space provided by the exposition sponsors. Special Category Expositions are those dealing only with one particular technique, raw material, or basic need.
                The BIE frequency rules require that an interval of 15 years must elapse between General Expositions of the First Category held in one country. General Expositions of the Second Category require an interval of 10 years. An interval of 5 years must ordinarily elapse between Special Category Expositions of the same kind in one country or three months between Special Category Expositions of different kinds. These frequency intervals are computed from the date of the opening of the exposition.
                More detailed BIE classification criteria and regulations are contained in the Paris Convention of 1928, as amended in 1948 and 1966. Applicants not having a copy of the text of this convention may obtain one by writing the Director. (The Convention may soon be amended by a Protocol which has been approved by the BIE and ratified by the United States. This amendment would increase authorized frequencies or intervals for BIE approved expositions.)

              Federal participation in a recognized international exposition requires a specific authorization by the Congress, upon a finding by the President that such participation would be in the national interest. The Act provides for the transmission to Congress of a participation proposal by the President. This proposal transmits to the Congress information regarding the exposition, including a statement that it has been registered by the BIE and a plan for Federal participation prepared by the Secretary of Commerce in cooperation with other interested Federal departments and agencies.

              § 310.2
              Definitions.
              For the purpose of this part, except where the context requires otherwise:
              (a) Act means Pub. L. 91-269.
              (b) Secretary means the Secretary of Commerce.
              (c) Commissioner General means the person appointed to act as the senior Federal official for the exposition as required by BIE rules and regulations.
              (d) Director means the Director of the International Expositions Staff, Office of the Deputy Assistant Secretary for Export Development, International Trade Administration, Department of Commerce.
              (e) Applicant means a State, County, municipality, a political subdivision of the foregoing, private non-profit or not-for-profit organizations, or individuals filing an application with the Director seeking Federal recognition of an international exposition to be held in the United States.
              (f) State means one of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust Territory of the Pacific Islands.
              (g) Exposition means an international exposition proposed to be held in the United States for which an application has been filed with the Director seeking Federal recognition under the Act; which proposes to invite more than one foreign country to participate; and, which would exceed three weeks in duration. Any event under three weeks in duration is not considered an international exposition under BIE rules.
              [40 FR 34107, Aug. 14, 1975. Redesignated and amended at 46 FR 57457, Nov. 24, 1981]

              § 310.3
              Applications for Federal recognition.
              (a) Applications for Federal recognition of an exposition shall be filed with, and all official communications in connection therewith addressed to, the International Expositions Staff, International Trade Administration, Department of Commerce, Washington, DC 20230.
              (b) Every application, exhibit, or enclosure, except where specifically waived by the Director, shall be in quadruplicate, duly authenticated and referenced.
              (c) Every application shall be in letter form and shall contain the date, address, and official designation of the applicant and shall be signed by an authorized officer or individual.

              (d) Every application, except where specifically waived by the Director, shall be accompanied by the following exhibits:

                1. Exhibit No. 1. A study setting forth in detail the purpose for the exposition, including any historical, geographic, or other significant event of the host city, State, or region related to the exposition.
                2. Exhibit No. 2. An exposition plan setting forth in detail (i) the theme of the exposition and the “storyline” around which the entire exposition is to be developed; (ii) whatever preliminary architectural and design plans are available on the physical layout of the site plus existing and projected structures; (iii) the type of participation proposed in the exposition (e.g., foreign and domestic exhibits); (iv) cultural, sports, and special events planned; (v) the proposed BIE category of the event and evidence of its conformity to the regulations of the BIE (a copy of these regulations can be obtained from the Director upon request); (vi) the proposed steps that will be taken to protect foreign exhibitors under the BIE model rules and regulations and (vii) in writing commit its organization to the completion of the exposition.
                3. Exhibit No. 3. Documentary evidence of State, regional and local support (e.g., letters to the applicant from business and civic leadership of the region, pledging assistance and/or financing; State and/or municipal resolutions, acts, or appropriations; referendums on bond issues, and others).
                4. Exhibit No. 4. An organization chart of the exposition management structure (actual or proposed) of the applicant, including description of the functions, duties and responsibilities of each official position along with bibliographic material, including any professional experience in the fields of architecture, industrial design, engineering, labor relations, concession management, interpretative theme planning, exhibit development, etc., on principal officers, if available. (The principal officials should also be prepared to submit subsequent individual statements under oath of their respective financial holdings and other interests.)
                5. Exhibit No. 5. A statement setting forth in detail (i) the availability of visitor services in existence or projected to accommodate tourists at the exposition (e.g., number of hotel and motel units, number and type of restaurants, health facilities, etc.); (ii) evidence of adequate transportation facilities and accessibility of the host city to large groups of national and international visitors (e.g., number and schedule of airlines, bus lines, railroads, and truck lines serving the host city); and (iii) plans to promote the exposition as a major national and international tourist destination.
                6. Exhibit No. 6. A statement setting forth in detail the applicant's plans for acquiring title to, or the right to occupy and use real property, other than that owned by the applicant or by the United States, essential for implementing the project or projects covered by the application. If the applicant, at the time of filing the application, has acquired title to the real property, he should submit a certified copy of the deed(s). If the applicant, at the time of filing the application, has by easement, lease, franchise, or otherwise acquired the right to occupy and use real property owned by others, he should submit a certified copy of the appropriate legal instrument(s) evidencing this right.
                7. Exhibit No. 7. A statement of the latest prevailing hourly wage rates for construction workers in the host city (e.g., carpenters, cement masons, sheet metal workers, etc.).
                8. Exhibit No. 8. Information on attitudes of labor leaders as to “no strike” agreements during the development and operation of the exposition. Actual “no strike” pledges are desirable.
                9. Exhibit No. 9. A detailed study conducted and certified by a nationally recognized firm(s) in the field of economics, accounting, management, etc., setting forth (i) proposed capital investment cost; cash flow projections; and sources of financing available to meet these costs, including but not limited to funds from State and municipal financing, general obligation and/or general revenue bond issues, and other public or private sources of front-end capital; (ii) assurances that the “guaranteed financing” is or will be available in accordance with Section 2(a)(1)(b) of Pub. L. 91-269; (iii) the projected expenses for managing the exposition; (iv) projected operational revenues broken down to include admissions, space rental, concessions, service fees and miscellaneous income; and (v) cost-benefit projections. These should be accompanied by a statement of the firm that the needed cash flow, sources of funding, and revenue projections are realistic and attainable.
                10. Exhibit No. 10. A description of the exposition implementation time schedule and the management control system to be utilized to implement the time schedule (e.g., PERT, CPM, etc.).
                11. Exhibit No. 11. A statement setting forth in detail the public relations, publicity and other promotional plans of the applicant. For example, the statement could include: (i) an outline of the public relations/publicity program broken down by percentage allocations among the various media; (ii) a public relations/publicity program budget with the various calendar target dates for completion of phases prior to the opening, the opening and post-opening of the exposition; and (iii) protocol plans for U.S. and foreign dignitaries, as well as for special ceremonies and events and how these plans are to be financed.
                12. Exhibit No. 12. A study setting forth in detail the benefits to be derived from the exposition and residual use plans. For example, the study might include: (i) extent of immediate economic benefits for the city/region/nation in proportion to total investment in the exposition; (ii) extent of long range economic benefits for the city/region/nation in proportion to total investment in the exposition; and (iii) extent of intangible (social, psychological, “good will”) benefits accruing to the city/region/nation including the solution or amelioration of any national/local problems.
                13. Exhibit No. 13. A statement committing the applicant to develop and complete an environmental impact statement which complies with section 102(2)(c) of the National Environmental Policy Act of 1969 (83 Stat. 852; 42 U.S.C. 4331). Sample copies of environmental impact statements may be obtained from the Director. Prior to the Director's submitting a report to the Secretary containing his findings on the application for Federal recognition pursuant to § 310.4, the applicant must have completed the required Environmental Impact Statement (EIS), in a form acceptable to the Department of Commerce.
                14. Exhibit No. 14. A detailed set of general and special rules and regulations governing the exposition and participation in it, which, if Federal recognition is obtained, can be used by the Federal Government in seeking BIE registration.
                15. Exhibit No. 15. A statement from the applicant agreeing to accept a U.S. Commissioner General, appointed by the President. He will be recognized as the senior Federal official and titular head of the exposition, final arbiter in disputes with exhibitors, and the official contact with foreign governments. The applicant should also agree to furnish the Commissioner General and his staff with suitable facilities in the host community during the development and operation of the exposition.

              [40 FR 34107, Aug. 14, 1975. Redesignated and amended at 46 FR 57457, Nov. 24, 1981]

              § 310.4
              Action on application.
              (a) Upon receipt of an application, the Director will analyze the application and all accompanying exhibits to insure compliance with the provisions of § 310.3 and report his findings with respect thereto to the Secretary.
              (b) If more than one applicant applies for Federal recognition for expositions to be held within three years or less of each other, the applications will be reviewed concurrently by the Director. The following standards will be considered in determining which if any of the competing applicants will be recommended for Federal recognition:
              (1) The order of receipt of the applications by the Director, complete with all exhibits required by § 310.3.
              (2) The financial plans of the applications. Primary consideration will be given to those applications which do not require Federal financing for exposition development. This does not extend to funding for a Federal pavilion, if one is desired.
              (3) The relative merit of the applications in terms of their qualifications as tourism destination sites, both with respect to existing facilities and those facilities planned for the proposed exposition. If necessary, to assist in making this determination, the Director will appoint a panel of travel industry experts representing tour developers, the transportation, entertainment and hotel/motel industries for the purpose of studying the competing applications and reporting to the Director its views as to which proposed site best meets the above criteria. If such a panel is deemed necessary, the provisions of the Federal Advisory Committee Act (86 Stat. 770, 5 U.S.C. App. I) will be applicable.
              (c) In analyzing the applications, the Director may hold public hearings with the objective of clarifying issues that might be raised by the application. If desired, the Director may utilize the services of an examiner.

              (d) If the Director, in his discretion, decides to hold a public hearing, notice of such hearing shall be published in the Federal Register, and a copy of the notice shall be furnished to local newspapers. The notice shall state the subject to be considered and when and where the hearing will be held, specifically designating the date, hour, and place.
              (e) The following general procedure shall govern the conduct of public hearings: (1) Stenographic minutes of the proceedings shall be made; (2) the names and addresses of all parties present or represented at the hearing shall be recorded; and (3) the Director or Examiner shall read aloud for the record and for the benefit of the public such parts of the Act and of these regulations as bear on the application. He shall also read aloud for the record and for the benefit of the public such other important papers, or extracts therefrom, as may be necessary for a full understanding of the issues which require clarification. The Director or Examiner shall impress upon the parties in attendance at the public hearing, and shall specifically state at the commencement of the hearing, that the hearing is not adversary in nature and that the sole objective thereof is to clarify issues that might have been raised by the application.
              (f) Statements of interested parties may be presented orally at the hearing, or submitted in writing for the record.

              (g) Within six months after receipt of a fully completed application and/or the adjournment of the public hearing, the Director shall submit his report containing his findings on the application to the Secretary.

              § 310.5
              Report of the Secretary on Federal recognition.
              If the Director's report recommends Federal recognition, the Secretary, within a reasonable time, shall submit a report to the President.
              (a) The Secretary's report shall include: (1) An evaluation of the purposes and reasons for the exposition; and (2) a determination as to whether guaranteed financial and other support has been secured by the exposition from affected State and local governments and from business and civic leaders of the region and others in amounts sufficient to assure the successful development and progress of the exposition.
              (b) Based on information from, and coordination with the Department of Commerce the Secretary of State shall also file a report with the President that the exposition qualifies for recognition by the BIE.

              § 310.6
              Recognition by the President.
              If the President concurs in the favorable reports from the Secretaries of State and Commerce, he may grant Federal recognition to the exposition by indicating his concurrence to the two Secretaries and authorizing them to seek BIE registration.

              § 310.7
              Statement for Federal participation.

              If Federal participation in the exposition, as well as Federal recognition thereof is desired, the applicant shall in a statement to the Director outline the nature of the Federal participation envisioned, including whether construction of a Federal pavilion is contemplated. (It should be noted, however, that before Federal participation can be authorized by the Congress under the Act, the exposition must have (i) met the criteria for Federal recognition and be so recognized, and (ii) been registered by the BIE. Although applicants need not submit such a statement until these prerequisites are satisfied, they are encouraged to do so.) Where the desired Federal participation includes a request for construction of a Federal pavilion, the statement shall be accompanied by the following exhibits:

                1. Exhibit No. 1. A survey drawing of the proposed Federal pavilion site, showing its areas and boundaries, its grade elevations, and surface and subsoil conditions.
                2. Exhibit No. 2. Evidence of resolutions, statutes, opinions, etc., as to the applicant's ability to convey by deed the real property comprising the proposed Federal pavilion site in fee-simple and free of liens and encumbrances to the Federal Government. The only consideration on the part of the Government for the conveyance of the property shall be the Government's commitment to participate in the exposition.
                3. Exhibit No. 3. A certified copy of the building code which would be applicable should a pavilion be constructed.
                4. Exhibit No. 4. An engineering drawing showing the accessibility of the proposed pavilion site to utilities (e.g., sewerage, water, gas, electricity, etc.).
                5. Exhibit No. 5. A statement setting forth the security and maintenance and arrangements which the applicant would undertake (and an estimate of their cost) while a pavilion is under construction.
                6. Exhibit No. 6. A study pursuant to Executive Order 11296 of August 10, 1966, entitled “Evaluation of flood hazard in locating Federally owned or financed buildings, roads and other facilities and in disposing of Federal land and properties.”

              § 310.8
              Proposed plan for Federal participation.
              (a) Upon receipt of the statement, and the exhibits referred to in § 310.7, the Director shall prepare a proposed plan in cooperation with other interested departments and agencies of the Federal Government for Federal participation in the exposition.
              (b) In preparing the proposed plan for Federal participation in the exposition, the Director shall conduct a feasibility study of Federal participation including cost estimates by utilizing the services within the Federal Government, professional consultants and private sources as required and in accordance with applicable laws and regulations.

              (c) The Director, in the proposed plan for Federal participation in the exposition, shall determine whether or not a Federal pavilion should be constructed and, if so, whether or not the Government would have need for a permanent structure in the area of the exposition or whether a temporary structure would be more appropriate.
              (d) The Director shall seek the advice of the Administrator of the General Services Administration to the extent necessary in carrying out the proposed plan for Federal participation in the exposition.
              (e) Upon completion of the proposed plan for Federal participation in the exposition, the Director shall submit the plan to the Secretary.

              § 310.9
              Report of the Secretary on Federal participation.
              Upon receipt of the Director's proposed plan for Federal participation, the Secretary, within a reasonable time, shall submit a report to the President including: (a) Evidence that the exposition has met the criteria for Federal recognition and has been so recognized; (b) a statement that the exposition has been registered by the BIE; and (c) a proposed plan for the Federal participation referred to in § 310.8.

            PART 315 [RESERVED]

            Pt. 325
            PART 325—EXPORT TRADE CERTIFICATES OF REVIEW

              Sec.
              325.1
              Scope.
              325.2
              Definitions.
              325.3
              Applying for a certificate of review.
              325.4
              Calculating time periods.
              325.5
              Issuing the certificate.
              325.6
              Publishing notices in the Federal Register.
              325.7
              Amending the certificate.
              325.8
              Expediting the certification process.
              325.9
              Reconsidering an application that has been denied.
              325.10
              Modifying or revoking a certificate.
              325.11
              Judicial review.
              325.12
              Returning the applicant's documents.
              325.13
              Nonadmissibility in evidence.
              325.14
              Submitting reports.
              325.15
              Relinquishing a certificate.
              325.16
              Protecting confidentiality of information.
              325.17
              Waiver.

              Authority:
              Title III of the Export Trading Company Act, Pub. L. 97-290 (96 Stat. 1240-1245, 15 U.S.C. 4011-4021).

              Source:
              50 FR 1806, Jan. 11, 1985, unless otherwise noted.

              § 325.1
              Scope.
              This part contains regulations for issuing export trade certificates of review under title III of the Export Trading Company Act, Pub. L. 97-290. A holder of a certificate of review and the members named in the certificate will have specific protections from private treble damage actions and government criminal and civil suits under U.S. Federal and State antitrust laws for the export conduct specified in the certificate and carried out during its effective period in compliance with its terms and conditions.

              § 325.2
              Definitions.
              As used in this part:
              (a) Act means title III of Pub. L. 97-290, Export Trade Certificates of Review.
              (b) Antitrust laws means the antitrust laws, as the term is defined in the first section of the Clayton Act (15 U.S.C. 12), section 5 of the Federal Trade Commission Act (15 U.S.C. 45) (to the extent that section 5 prohibits unfair methods of competition), and any State antitrust or unfair competition law.
              (c) Applicant means the person or persons who submit an application for a certificate.
              (d) Application means an application for a certificate to be issued under the Act.
              (e) Attorney General means the Attorney General of the United States or his designee.
              (f) Certificate means a certificate of review issued pursuant to the Act.
              (g) Control means either (1) holding 50 percent or more of the outstanding voting securities of an issuer; or (2) having the contractual power presently to designate a majority of the directors of a corporation, or in the case of an unincorporated entity, a majority of the individuals who exercise similar functions.
              (h) Controlling entity means an entity which directly or indirectly controls a member or applicant, and is not controlled by any other entity.
              (i) Export conduct means specified export trade activities and methods of operation carried out in specified export trade and export markets.

              (j) Export trade means trade or commerce in goods, wares, merchandise, or services that are exported, or are in the course of being exported, from the United States or any territory of the United States to any foreign nation.
              (k) Export trade activities means activities or agreements in the course of export trade.
              (l) Member means an entity (U.S. or foreign) or a person which is seeking protection under the certificate with the applicant. A member may be a partner in a partnership or a joint venture; a shareholder of a corporation; or a participant in an association, cooperative, or other form of profit or nonprofit organization or relationship, by contract or other arrangement.
              (m) Method of operation means any method by which an applicant or member conducts or proposes to conduct export trade.
              (n) Person means an individual who is a resident of the United States; a partnership that is created under and exists pursuant to the laws of any State or of the United States; a State or local government entity; a corporation, whether it is organized as a profit or nonprofit corporation, that is created under and exists pursuant to the laws of any State or of the United States; or any association or combination, by contract or other arrangement, between or among such persons.
              (o) Secretary means the Secretary of Commerce or his designee.
              (p) Services means intangible economic output, including, but not limited to—
              (1) business, repair, and amusement services,
              (2) management, legal, engineering, architectural, and other professional services, and
              (3) financial, insurance, transportation, informational and any other data-based services, and communication services.
              (q) United States means the fifty States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.

              § 325.3
              Applying for a certificate of review.
              (a) Place of filing. The applicant shall submit an original and two copies of a completed application form (ITA 4093-P, OMB control number 0625-0125) by personal delivery during normal business hours or by first class mail to the Office of Export Trading Company Affairs, Room 5618, International Trade Administration, Department of Commerce, Washington, DC 20230. Although not required, the applicant should consider using registered mail or some other delivery method that provides evidence of receipt.
              (b) Contents of application. Any person may submit an application for certification. The application shall contain, where applicable, the information listed below. Some information, in particular the identification of goods or services that the applicant exports or proposes to export, is requested in a certain form (Standard Industrial Classification [SIC] numbers) if reasonably available. Where information does not exist in this form, the applicant may satisfy the request for information by providing it in some other convenient form. If the applicant is unable to provide any of the information requested or if the applicant believes that any of the information requested would be both burdensome to obtain and unnecessary for a determination on the application, the applicant should state that the information is not being provided or is being provided in lesser detail, and explain why.
              (1) Name and principal address of the applicant and of its controlling entity, if any. Include the name, title, address, telephone number, and relationship to the applicant of each individual to whom the Secretary should address correspondence.
              (2) The name and principal address of each member, and of each member's controlling entity, if any.

              (3) A copy of any legal instrument under which the applicant is organized or will operate. Include copies, as applicable, of its corporate charter, bylaws, partnership, joint venture, membership or other agreements or contracts under which the applicant is organized.

              (4) A copy of the applicant's most recent annual report, if any, and that of its controlling entity, if any. To the extent the information is not included in the annual report, or other documents submitted in connection with the application, a description of the applicant's domestic (including import) and export operations, including the nature of its business, the types of products or services in which it deals, and the places where it does business. This description may be supplemented by a chart or table.
              (5) A copy of each member's most recent annual report, if any, and that of its controlling entity, if any. To the extent the information is not included in the annual report, or other documents submitted in connection with the application, a description of each member's domestic (including import) and export operations, including the nature of its business, the types of products or services in which it deals, and the places where it does business. This description may be supplemented by a chart or table.
              (6) The names, titles, and responsibilities of the applicant's directors, officers, partners and managing officials, and their business affiliations with other members or other businesses that produce or sell any of the types of goods or services described in paragraph (b)(7) of this section.
              (7)(i) A description of the goods or services which the applicant exports or proposes to export under the certificate of review. This description should reflect the industry's customary definitions of the products and services.
              (ii) If it is reasonably available, an identification of the goods or services according to the Standard Industrial Classification (SIC) number. Goods should normally be identified according to the 7-digit level. Services should normally be identified at the most detailed SIC level available.
              (iii) The foreign geographic areas to which the applicant and each member export or intend to export their goods and services.
              (8) For each class of the goods, wares, merchandise or services described in paragraph (b)(7) of this section:
              (i) The principal geographic area or areas in the United States in which the applicant and each member sell their goods and services.
              (ii) For their previous two fiscal years, the dollar value of the applicant's and each member's (A) total domestic sales, if any; and (B) total export sales, if any. Include the value of the sales of any controlling entities and all entities under their control.
              (9) For each class of the goods, wares, merchandise or services described in paragraph (b)(7) of this section, the best information or estimate accessible to the applicant of the total value of sales in the United States by all companies for the last two years. Identify the source of the information or the basis of the estimate.
              (10) A description of the specific export conduct which the applicant seeks to have certified. Only the specific export conduct described in the application will be eligible for certification. For each item, the applicant should state the antitrust concern, if any, raised by that export conduct. (Examples of export conduct which applicants may seek to have certified include the manner in which goods and services will be obtained or provided; the manner in which prices or quantities will be set; exclusive agreements with U.S. suppliers or export intermediaries; territorial, quantity, or price agreements with U.S. suppliers or export intermediaries; and restrictions on membership or membership withdrawal. These examples are given only to illustrate the type of export conduct which might be of concern. The specific activities which the applicant may wish to have certified will depend on its particular circumstances or business plans.).

              (11) If the export trade, export trade activities, or methods of operation for which certification is sought will involve any agreement or any exchange of information among suppliers of the same or similar products or services with respect to domestic prices, production, sales, or other competitively sensitive business information, specify the nature of the agreement or exchange of information. Such information exchanges are not necessarily impermissible and may be eligible for certification. Whether or not certification is sought for such exchanges, this information is necessary to evaluate whether the conduct for which certification is sought meets the standards of the Act.
              (12) A statement of whether the applicant intends or reasonably expects that any exported goods or services covered by the proposed certificate will re-enter the United States, either in their original or modified form. If so, identify the goods or services and the manner in which they may re-enter the U.S.
              (13) The names and addresses of the suppliers of the goods and services to be exported (and the goods and services to be supplied by each) unless the goods and services to be exported are to be supplied by the applicant and/or its members.

              (14) A proposed non-confidential summary of the export conduct for which certification is sought. This summary may be used as the basis for publication in the Federal Register.

              (15) Any other information that the applicant believes will be necessary or helpful to a determination of whether to issue a certificate under the standards of the Act.
              (16) (Optional) A draft proposed certificate.
              (c) The applicant must sign the application and certify that (1) each member has authorized the applicant to submit the application, and (2) to the best of its belief the information in the application is true, correct, and fully responsive.
              (d) Conformity with regulations. No application shall be deemed submitted unless it complies with these regulations. Applicants are encouraged to seek guidance and assistance from the Department of Commerce in preparing and documenting their applications.
              (e) Review and acceptance. The Secretary will stamp the application on the day that it is received in the Office of Export Trading Company Affairs. From that date, the Secretary will have five working days to decide whether the application is complete and can be deemed submitted under the Act. On the date on which the application is deemed submitted, the Secretary will stamp it with that date and notify the applicant that the application has been accepted for review. If the application is not accepted for review, the Secretary shall advise the applicant that it may file the application again after correcting the deficiencies that the Secretary has specified. If the Secretary does not take action on the application within the five-day period, the application shall be deemed submitted as of the sixth day.
              (f) Withdrawal of application. The applicant may withdraw an application by written request at any time before the Secretary has determined whether to issue a certificate. An applicant who withdraws an application may submit a new application at any time.
              (g) Supplemental information. After an application has been deemed submitted, if the Secretary or the Attorney General finds that additional information is necessary to make a determination on the application, the Secretary will ask the applicant in writing to supply the supplemental information. The running of the time period for a determination on the application will be suspended from the date on which the request is sent until the supplemental information is received and is considered complete. The Secretary shall promptly decide whether the supplemental information is complete, and shall notify the applicant of his decision. If the information is being sought by the Attorney General, the supplemental information may be deemed complete only if the Attorney General concurs. If the applicant does not agree to provide the additional information, or supplies information which the Secretary or the Attorney General considers incomplete, the Secretary and the Attorney General will decide whether the information in their possession is sufficient to make a determination on the application. If either the Secretary or the Attorney General considers the information in their possession insufficient, the Secretary may make an additional request or shall deny the application. If they consider the information in their possession sufficient to make a determination on the application, the Secretary shall notify the applicant that the time period for a determination has resumed running.

              § 325.4
              Calculating time periods.

              (a) When these regulations require action to be taken within a fixed time period, and the last day of the time period falls on a non-working day, the time period shall be extended to the next working day.
              (b) The day after an application is deemed submitted shall be deemed the first of the days within which the Secretary must make a determination on the application.

              § 325.5
              Issuing the certificate.
              (a) Time period. The Secretary shall determine whether to issue a certificate within ninety days after the application is deemed submitted (excluding any suspension pursuant to § 325.3(f) of the time period for making a determination). If the Secretary or the Attorney General considers it necessary, and the applicant agrees, the Secretary may take up to an additional thirty days to determine whether to issue a certificate.
              (b) Determination. The Secretary shall issue a certificate to the applicant if he determines, and the Attorney General concurs, that the proposed export trade, export trade activities and methods of operation will—
              (1) Result in neither a substantial lessening of competition or restraint of trade within the United States nor a substantial restraint of the export trade of any competitor of the applicant;
              (2) Not unreasonably enhance, stabilize, or depress prices within the United States of the class of the goods, wares, merchandise or services exported by the applicant;
              (3) Not constitute unfair methods of competition against competitors who are engaged in the export of goods, wares, merchandise or services of the class exported by the applicant; and
              (4) Not include any act that may reasonably be expected to result in the sale for consumption or resale within the United States of the goods, wares, merchandise, or services exported by the applicant.
              (c) Concurrence of the Attorney General. (1) Not later than seven days after an application is deemed submitted, the Secretary shall deliver to the Attorney General a copy of the application, any information submitted in connection with the application, and any other relevant information in his possession. The Secretary and the Attorney General shall make available to each other copies of other relevant information that was obtained in connection with the application, unless otherwise prohibited by law.
              (2) Not later than thirty days before the day a determination on the application is due, the Secretary shall deliver a proposed certificate to the Attorney General for discussion and comment. If the Attorney General does not agree that the proposed certificate may be issued, he shall, not later than ten days before the day a determination on the application is due, so advise the Secretary and state the reasons for the disagreement. The Secretary with the concurrence of the Attorney General, may modify or revise the proposed certificate to resolve the objections and problems raised by the Attorney General, or deny the application.
              (3) If the Attorney General receives the proposed certification by the date specified in the preceding paragraph and does not respond within the time period specified in that paragraph, he shall be deemed to concur in the proposed certificate.
              (d) Content of certificate. The certificate shall specify the export conduct and all persons or entities which are protected from liability under the antitrust laws. The Secretary may certify the proposed export conduct contained in the application, in whole or in part, with such changes, modifications, terms, or conditions as are appropriate. If the Secretary intends to issue a certificate different from a draft certificate submitted by the applicant, the Secretary shall first consult with the applicant.
              (e) Certificate obtained by fraud. A certificate shall be void ab initio with respect to any export conduct for which a certificate was obtained by fraud.
              (f) Minimum thirty-day period. The Secretary may not issue a certificate until thirty days after the summary of the application is published in the Federal Register.

              § 325.6
              Publishing notices in the Federal Register.

              (a) Within ten days after an application is deemed submitted, the Secretary shall deliver to the Federal Register a notice summarizing the application. The notice shall identify the applicant and each member and shall include a summary of the export conduct for which certification is sought. If the Secretary does not intend to publish the summary proposed by the applicant, he shall notify the applicant. Within twenty days after the date the notice is published in the Federal Register, interested parties may submit written comments to the Secretary on the application. The Secretary shall provide a copy of such comments to the Attorney General.

              (b) If a certificate is issued, the Secretary shall publish a summary of the certification in the Federal Register. If an application is denied, the Secretary shall publish a notice of denial. Certificates will be available for inspection and copying in the International Trade Administration Freedom of Information Records Inspection Facility.

              (c) If the Secretary initiates proceedings to revoke or modify a certificate, he shall publish a notice of his final determination in the Federal Register.

              (d) If the applicant requests reconsideration of a determination to deny an application, in whole or in part, the Secretary shall publish notice of his final determination in the Federal Register.

              § 325.7
              Amending the certificate.
              An application for an amendment to a certificate shall be treated in the same manner as an original application. The application for an amendment shall set forth the proposed amendment(s) and the reasons for them. It shall contain any information specified in § 325.3(b) that is relevant to the determination on the application for an amendment. The effective date of an amendment will be the date on which the application for the amendment was deemed submitted.

              § 325.8
              Expediting the certification process.
              (a) Request for expedited action. (1) An applicant may be granted expedited action on its application in the discretion of the Secretary and the Attorney General. The Secretary and the Attorney General will consider such requests in light of an applicant's showing that it has a special need for a prompt decision. A request for expedited action should include an explanation of why expedited action is needed, including a statement of all relevant facts and circumstances, such as bidding deadlines or other circumstances beyond the control of the applicant, that require the applicant to act in less than ninety days and that have a significant impact on the applicant's export trade.
              (2) The Secretary shall advise the applicant within ten days after the application is deemed submitted whether it will receive expedited action. The Secretary may grant the request in whole or in part and process the remainder of the application through the normal procedures. Expedited action may be granted only if the Attorney General concurs.
              (b) Time period. The Secretary shall determine whether to issue a certificate to the applicant within forty-five days after the Secretary granted the request for expedited action, or within a longer period if agreed to by the applicant (excluding any suspension pursuant to § 325.3(f) of the time period for making a determination). The Secretary may not issue a certificate until thirty days after the summary of the application is published in the Federal Register.

              (c) Concurrence of the Attorney General. (1) Not later than ten working days before the date on which a determination on the application is due, the Secretary shall deliver a proposed certificate to the Attorney General for discussion and comment. If the Attorney General does not agree that the proposed certificate may be issued, he shall, not later than five working days before the date on which a determination on the application is due, so advise the Secretary and state the reasons for the disagreement. The Secretary, with the concurrence of the Attorney General, may revise the proposed certificate to resolve the objections and problems raised by the Attorney General, or deny the application.

              (2) If the Attorney General receives the proposed certificate by the date specified in the preceding paragraph and does not respond within the time period specified in that paragraph, he shall be deemed to concur in the proposed certificate.

              § 325.9
              Reconsidering an application that has been denied.
              (a) If the Secretary determines to deny an application in whole or in part, he shall notify the applicant in writing of his decision and the reasons for his determination.
              (b) Within thirty days after receiving a notice of denial, the applicant may request the Secretary to reconsider his determination.
              (1) The request for reconsideration shall include a written statement setting forth the reasons why the applicant believes the decision should be reconsidered, and any additional information that the applicant considers relevant.
              (2) Upon the request of the applicant, the Secretary and the Attorney General will meet informally with the applicant and/or his representative to discuss the applicant's reasons why the determination on the application should be changed.
              (c) The Secretary shall consult with the Attorney General with regard to reconsidering an application. The Secretary may modify his original determination only if the Attorney General concurs.
              (d) The Secretary shall notify the applicant in writing of his final determination after reconsideration and of his reasons for the determination within thirty days after the request for reconsideration has been received.

              § 325.10
              Modifying or revoking a certificate.
              (a) Action subject to modification or revocation. The Secretary shall revoke a certificate, in whole or in part, or modify it, as the Secretary or the Attorney General considers necessary, if:
              (1) The export conduct of a person or entity protected by the certificate no longer complies with the requirements set forth in § 325.4(b);
              (2) A person or entity protected by the certificate fails to comply with a request for information under paragraph (b) of this section; or
              (3) The certificate holder fails to file a complete annual report.
              (b) Request for information. If the Secretary or the Attorney General has reason to believe that the export trade, export trade activities, or methods of operation of a person or entity protected by a certificate no longer comply with the requirements set forth in § 325.4(b), the Secretary shall request any information that he or the Attorney General considers to be necessary to resolve the matter.
              (c) Proceedings for the revocation or modification of a certificate—(1) Notification letter. If, after reviewing the relevant information in their possession, it appears to the Secretary or the Attorney General that a certificate should be revoked or modified for any of the reasons set forth in paragraph (a) above, the Secretary shall so notify the certificate holder in writing. The notification shall be sent by registered or certified mail to the address specified in the certificate. The notification shall include a detailed statement of the facts, conduct, or circumstances which may warrant the revocation or modification of the certificate.
              (2) Answer. The certificate holder shall respond to the notification letter within thirty days after receiving it, unless the Secretary, in his discretion, grants a thirty day extension for good cause shown. The certificate holder shall respond specifically to the statement included with the notification letter and state in detail why the facts, conduct or circumstances described in the notification letter are not true, or if they are true, why they do not warrant the revoking or modifying of the certificate. If the certificate holder does not respond within the specified period, it will be considered an admission of the statements contained in the notification letter.
              (3) Resolution of factual disputes. Where material facts are in dispute, the Secretary and the Attorney General shall, upon request, meet informally with the certificate holder. The Secretary or the Attorney General may require the certificate holder to provide any documents or information that are necessary to support its contentions. After reviewing the statements of the certificate holder and the documents or information that the certificate holder has submitted, and upon considering other relevant documents or information in his possession, the Secretary shall make proposed findings of the factual matters in dispute. The Attorney General is not bound by the proposed findings.
              (4) Final determination. The Secretary and the Attorney General shall review the notification letter and the certificate holder's answer to it, the proposed factual findings made under paragraph (c)(3) of this section, and any other relevant documents or information in their possession. If, after review, the Secretary or the Attorney General determines that the export conduct of a person or entity protected by the certificate no longer complies with the standards set forth in § 325.4(b), the Secretary shall revoke or modify the certificate as appropriate. If the Secretary or the Attorney General determines that the certificate holder has failed to comply with the request for information under paragraph (b) of this section, or has failed to file a complete annual report, and that the failure to comply or file should result in revocation of modification, the Secretary shall revoke or modify the certificate as appropriate. The determination will be final and will be issued to the certificate holder in writing. The notice to the certificate holder shall include a statement of the circumstances underlying and the reasons in support of the determination. If the Secretary determines to revoke or modify the certificate, the decision shall specify the effective date of the revocation or modification; this date must be at least thirty days but not more than ninety days after the Secretary notifies the certificate holder of his determination. The Secretary shall publish notice in the Federal Register of a revocation or modification or a decision not to revoke or modify.
              (d) Investigative information. In proceedings under this section, the Attorney General shall make available to the Secretary any information that has been obtained in response to Civil Investigative Demands issued under section 304(b)(3) of the Act. Unless prohibited by law, the Attorney General and the Secretary shall also make available to each other any other information which each is relying upon under these proceedings.

              § 325.11
              Judicial review.
              (a) Review of certain determinations. (1) Any person aggrieved by a final determination of the Secretary under § 325.5, § 325.7, § 325.9, or § 325.10 of these regulations may, within thirty days of the determination, bring an action in an appropriate district court of the United States to set aside the determination on the ground that it is erroneous. If a certificate is denied, the applicant may bring suit within thirty days after the notice of denial is published in the Federal Register, or, if the applicant seeks reconsideration, within thirty days after the Secretary publishes in the Federal Register notice of his determination after reconsideration.

              (b) For purposes of judicial review, determinations of the Secretary are final when notice is published in the Federal Register.

              (c) Record for judicial review. For purposes of judicial review, the record shall include all information presented to or obtained by the Secretary which had a bearing on the determination, the determination itself, the supporting statement setting forth the reasons for the determination, and the Attorney General's response to the Secretary indicating concurrence or nonconcurrence.
              (d) Limitation of judicial review. Except as provided in paragraph (a) of this section, no agency action taken under the Act shall be subject to judicial review.

              § 325.12
              Returning the applicant's documents.
              (a) Upon the denial or withdrawal of an application for a certificate in its entirety, the applicant may request the return of all copies of the documents submitted by the applicant in connection with the application to the Department of Commerce or the Department of Justice. The applicant shall submit this request in writing to both the Secretary and the Attorney General.
              (b) The Secretary and the Attorney General shall return the documents to the applicant within thirty days after they receive the applicant's request.

              § 325.13
              Nonadmissibility in evidence.
              If the Secretary denies, in whole or in part, an application for a certificate or for an amendment to a certificate, or revokes or amends a certificate, neither the negative determination nor the statement of reasons therefor shall be admissible in evidence in any administrative or judicial proceeding in support of any claim under the antitrust laws.

              § 325.14
              Submitting reports.
              (a) Not later than each anniversary of a certificate's effective date, the Secretary shall notify the certificate holder of the information to be included in the annual report. This report shall contain any changes relevant to the matters specified in the certificate, an update of the information contained in the application brought current to the anniversary date, and any other information the Secretary considers appropriate, after consultation with the Attorney General.
              (b) Not later than forty-five days after each anniversary of a certificate's effective date, a certificate holder shall submit its annual report to the Secretary. The Secretary shall deliver a copy of the annual report to the Attorney General.
              (c) Failure to submit a complete annual report may be the basis for modification or revocation of a certificate.

              § 325.15
              Relinquishing a certificate.
              A certificate holder may relinquish a certificate at any time through written notice to the Secretary. The certificate will cease to be effective on the day the Secretary receives the notice.

              § 325.16
              Protecting confidentiality of information.
              (a) Any information that is submitted by any person under the Act is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552).
              (b)(1) Except as authorized under paragraph (b)(3) of this section, no officer or employee of the United States shall disclose commercial or financial information submitted under this Act if the information is privileged or confidential, and if disclosing the information would cause harm to the person who submitted it.
              (2) A person submitting information shall designate the documents or information which it considers privileged or confidential and the disclosure of which would cause harm to the person submitting it. The Secretary shall endeavor to notify these persons of any requests or demands before disclosing any of this information.
              (3) An officer or employee of the United States may disclose information covered under paragraph (b)(1) of this section only under the following circumstances—
              (i) Upon a request made by either House of Congress or a Committee of the Congress,
              (ii) In a judicial or administrative proceeding subject to issuance of an appropriate protective order,
              (iii) With the written consent of the person who submitted the information,
              (iv) When the Secretary considers disclosure of the information to be necessary for determining whether or not to issue, amend, or revoke a certificate, if—
              (A) The Secretary determines that a non-confidential summary of the information is inadequate; and
              (B) The person who submitted the information is informed of the intent to disclose the information, and has an opportunity to advise the Secretary of the potential harm which disclosure may cause,
              (v) In accordance with any requirement imposed by a statute of the United States.
              (c) In any judicial or administrative proceeding in which disclosure is sought from the Secretary or the Attorney General of any confidential or privileged documents or information submitted under this Act, the Secretary or Attorney General shall attempt to notify the party who submitted the information of the request or demand for disclosure. In appropriate circumstances the Secretary or Attorney General may seek or support an appropriate protective order on behalf of the party who submitted the documents or information.

              § 325.17
              Waiver.
              The Secretary may waive any of the provisions of this part in writing for good cause shown, if the Attorney General concurs and if permitted by law.

            PARTS 326-399 [RESERVED]

        15 CFR Ch. IV (1-1-20 Edition)
        Foreign-Trade Zones Board, Commerce

            CHAPTER IV—FOREIGN-TRADE ZONES BOARD, DEPARTMENT OF COMMERCE

          Part
          Page

            400
            Regulations of the Foreign-Trade Zones Board
            59
            401-499
            [Reserved]

          Pt. 400
          PART 400—REGULATIONS OF THE FOREIGN-TRADE ZONES BOARD

              Subpart A—Scope, Definitions and Authority
              Sec.
              400.1
              Scope.
              400.2
              Definitions.
              400.3
              Authority of the Board.
              400.4
              Authority and responsibilities of the Executive Secretary.
              400.5
              Authority to restrict or prohibit certain zone operations.
              400.6
              Board headquarters.
              400.7
              CBP officials as Board representatives.

              Subpart B—Ability To Establish Zone; Limitations and Restrictions on Authority Granted
              400.11
              Number and location of zones and subzones.
              400.12
              Eligible applicants.
              400.13
              General conditions, prohibitions and restrictions applicable to authorized zones.
              400.14
              Production—requirement for prior authorization; restrictions.
              400.15
              Production equipment.
              400.16
              Exemption from state and local ad valorem taxation of tangible personal property.

              Subpart C—Applications To Establish and Modify Authority
              400.21
              Application to establish a zone.
              400.22
              Notification for production authority.
              400.23
              Application for production authority.
              400.24
              Application for expansion or other modification to zone.
              400.25
              Application for subzone designation.
              400.26
              Criteria for evaluation of proposals, including expansions, subzones or other modifications of zones.
              400.27
              Criteria applicable to evaluation of applications for production authority.
              400.28
              Burden of proof.
              400.29
              Application fees.

              Subpart D—Procedures for Application Evaluation and Reviews
              400.31
              General application provisions and pre-docketing review.
              400.32
              Procedures for docketing applications and commencement of case review.
              400.33
              Examiner's review—application to establish or modify a zone.
              400.34
              Examiner's review—application for production authority.
              400.35
              Examiner's review—application for subzone designation.
              400.36
              Completion of case review.
              400.37
              Procedure for notification of proposed production activity.
              400.38
              Procedure for application for minor modification of zone.

              Subpart E—Operation of Zones and Administrative Requirements
              400.41
              General operation of zones; requirements for commencement of operations.
              400.42
              Operation as public utility.
              400.43
              Uniform treatment.
              400.44
              Zone schedule.
              400.45
              Complaints related to public utility and uniform treatment.
              400.46
              Grantee liability.
              400.47
              Retail trade.
              400.48
              Zone-restricted merchandise.
              400.49
              Monitoring and reviews of zone operations and activity.

              Subpart F—Records, Reports, Notice, Hearings and Information
              400.51
              Accounts, records and reports.
              400.52
              Notices and hearings.
              400.53
              Official records; public access.
              400.54
              Information.

              Subpart G—Penalties and Appeals to the Board
              400.61
              Revocation of authority.
              400.62
              Fines, penalties and instructions to suspend activated status.
              400.63
              Appeals to the Board of decisions of the Assistant Secretary for Enforcement and Compliance and the Executive Secretary.

            Authority:
            Foreign-Trade Zones Act of June 18, 1934, as amended (Pub. L. 73-397, 48 Stat. 998-1003 (19 U.S.C. 81a-81u)).

            Source:
            77 FR 12139, Feb. 28, 2012, unless otherwise noted.

            Editorial Note:
            Nomenclature changes to part 400 appear at 78 FR 69289, Nov. 19, 2013.

            Subpart A—Scope, Definitions and Authority

              § 400.1
              Scope.

              (a) This part sets forth the regulations, including the rules of practice and procedure, of the Foreign-Trade Zones Board with regard to foreign-trade zones (FTZs or zones) in the United States pursuant to the Foreign-Trade Zones Act of 1934, as amended (19 U.S.C. 81a-81u). It includes the substantive and procedural rules for the authorization of zones and for the Board's regulation of zone activity. The purpose of zones as stated in the Act is to “expedite and encourage foreign commerce, and other purposes.” The regulations provide the legal framework for accomplishing this purpose in the context of evolving U.S. economic and trade policy, and economic factors relating to international competition.
              (b) Part 146 of the customs regulations (19 CFR part 146) governs zone operations, including the admission of merchandise into zones, zone activity involving such merchandise, and the transfer of merchandise from zones.

              (c) To the extent zones are “activated” under U.S. Customs and Border Protection (CBP) procedures in 19 CFR part 146, and only for the purposes specified in the Act (19 U.S.C. 81c), zones are treated for purposes of the tariff laws and customs entry procedures as being outside the customs territory of the United States. Under zone procedures, foreign and domestic merchandise may be admitted into zones for operations such as storage, exhibition, assembly, manufacture and processing, without being subject to formal customs entry procedures and payment of duties, unless and until the foreign merchandise enters customs territory for domestic consumption. At that time, the importer ordinarily has a choice of paying duties either at the rate applicable to the foreign material in its condition as admitted into a zone, or if used in production activity, to the emerging product. Quota restrictions do not normally apply to foreign goods in zones. The Board can deny or limit the use of zone procedures in specific cases on public interest grounds. Merchandise moved into zones for export (zone-restricted status) may be considered exported for purposes such as federal excise tax rebates and customs drawback. Foreign merchandise (tangible personal property) admitted to a zone and domestic merchandise held in a zone for exportation are exempt from certain state and local ad valorem taxes (19 U.S.C. 81o(e)). Articles admitted into zones for purposes not specified in the Act shall be subject to the tariff laws and regular entry procedures, including the payment of applicable duties, taxes, and fees.

              § 400.2
              Definitions.
              (a) Act means the Foreign-Trade Zones Act of 1934, as amended (19 U.S.C. 81a-81u).
              (b) Activation limit is the size of the physical area of a particular zone or subzone authorized by the Board to be simultaneously in activated status with CBP pursuant to 19 CFR 146.6. The activation limit for a particular zone/subzone is a figure explicitly specified by the Board in authorizing the zone (commonly 2,000 acres) or subzone or, in the absence of a specified figure, the total of the sizes of the approved sites of the zone/subzone.
              (c) Alternative site framework (ASF) is an optional approach to designation and management of zone sites allowing greater flexibility and responsiveness to serve single-operator/user locations. The ASF was adopted by the Board as a matter of practice in December 2008 (74 FR 1170, January 12, 2009; correction 74 FR 3987, January 22, 2009) and modified by the Board in November 2010 (75 FR 71069, November 22, 2010).
              (d) Board means the Foreign-Trade Zones Board, which consists of the Secretary of the Department of Commerce (chairman) and the Secretary of the Treasury, or their designated alternates.
              (e) Board Order is a type of document that indicates a final decision of the Board. Board Orders are generally published in the Federal Register after issuance.
              (f) CBP means U.S. Customs and Border Protection.
              (g) Executive Secretary is the Executive Secretary of the Foreign-Trade Zones Board.
              (h) Foreign-trade zone (FTZ or zone) includes one or more restricted-access sites, including subzones, in or adjacent (as defined by § 400.11(b)(2)) to a CBP port of entry, operated as a public utility (within the meaning of § 400.42) under the sponsorship of a zone grantee authorized by the Board, with zone operations under the supervision of CBP.
              (i) Grant of authority is a document issued by the Board that authorizes a zone grantee to establish, operate and maintain a zone, subject to limitations and conditions specified in this part and in 19 CFR part 146. The authority to establish a zone includes the responsibility to manage it.
              (j) Magnet site means a site intended to serve or attract multiple operators or users under the ASF.
              (k) Modification: A major modification is a proposed change to a zone that requires action by the FTZ Board; a minor modification is a proposed change to a zone that may be authorized by the Executive Secretary.
              (l) Person includes any individual, corporation, or entity.
              (m) Port of entry means a port of entry in the United States, as defined by part 101 of the customs regulations (19 CFR part 101), or a user fee airport authorized under 19 U.S.C. 58b and listed in part 122 of the customs regulations (19 CFR part 122).
              (n) Private corporation means any corporation, other than a public corporation, which is organized for the purpose of establishing, operating and maintaining a zone and which is chartered for this purpose under a law of the state in which the zone is located.
              (o) Production, as used in this part, means activity involving the substantial transformation of a foreign article resulting in a new and different article having a different name, character, and use, or activity involving a change in the condition of the article which results in a change in the customs classification of the article or in its eligibility for entry for consumption.
              (p) Public corporation means a state, a political subdivision (including a municipality) or public agency thereof, or a corporate municipal instrumentality of one or more states.
              (q) Service area means the jurisdiction(s) within which a grantee proposes to be able to designate sites via minor boundary modifications under the ASF.
              (r) State includes any state of the United States, the District of Columbia, and Puerto Rico.
              (s) Subzone means a site (or group of sites) established for a specific use.
              (t) Usage-driven site means a site tied to a single operator or user under the ASF.
              (u) Zone means a foreign-trade zone established under the provisions of the Act and these regulations. Where used in this part, the term also includes subzones, unless the context indicates otherwise.
              (v) Zone grantee is the corporate recipient of a grant of authority for a zone. Where used in this part, the term “grantee” means “zone grantee” unless otherwise indicated.
              (w) Zone operator is a person that operates within a zone or subzone under the terms of an agreement with the zone grantee (or third party on behalf of the grantee), with the concurrence of CBP.
              (x) Zone participant is a current or prospective zone operator, zone user, or property owner.
              (y) Zone plan includes all the zone sites that a single grantee is authorized to establish.
              (z) Zone site (site) means a physical location of a zone or subzone. A site is composed of one or more generally contiguous parcels of land organized and functioning as an integrated unit, such as all or part of an industrial park or airport facility.
              (aa) Zone user is a party using a zone under agreement with a zone operator.

              § 400.3
              Authority of the Board.
              (a) In general. In accordance with the Act and procedures of this part, the Board has authority to:
              (1) Prescribe rules and regulations concerning zones;
              (2) Issue grants of authority for zones, and approve subzones and modifications to the original zone;
              (3) Authorize production activity in zones and subzones as described in this part;
              (4) Make determinations on matters requiring Board decisions under this part;
              (5) Decide appeals in regard to certain decisions of the Commerce Department's Assistant Secretary for Enforcement and Compliance or the Executive Secretary;
              (6) Inspect the premises, operations and accounts of zone grantees, operators and users (and persons undertaking zone-related functions on behalf of grantees, where applicable);
              (7) Require zone grantees and operators to report on zone operations;

              (8) Report annually to the Congress on zone operations;

              (9) Restrict or prohibit zone operations;
              (10) Terminate reviews of applications under certain circumstances pursuant to § 400.36(g);
              (11) Authorize under certain circumstances the entry of “zone-restricted merchandise” (19 CFR 146.44) into the customs territory pursuant to § 400.48;
              (12) Impose fines for violations of the Act and this part;
              (13) Instruct CBP to suspend activated status pursuant to § 400.62(h);
              (14) Revoke grants of authority for cause;
              (15) Determine, as appropriate, whether zone activity is or would be in the public interest or detrimental to the public interest, health or safety; and
              (16) Issue and discontinue waivers pursuant to § 400.43(f).
              (b) Authority of the Chairman of the Board. The Chairman of the Board (Secretary of the Department of Commerce) has the authority to:
              (1) Appoint the Executive Secretary of the Board;
              (2) Call meetings of the Board, with reasonable notice given to each member; and
              (3) Submit to the Congress the Board's annual report as prepared by the Executive Secretary.
              (c) Alternates. Each member of the Board shall designate an alternate with authority to act in an official capacity for that member.
              (d) Authority of the Assistant Secretary for Enforcement and Compliance (Alternate Chairman). The Commerce Department's Assistant Secretary for Enforcement and Compliance has the authority to:
              (1) Terminate reviews of applications under certain circumstances pursuant to § 400.36(g);
              (2) Mitigate and assess fines pursuant to §§ 400.62(e) and (f) and instruct CBP to suspend activated status pursuant to § 400.62(h); and
              (3) Restrict the use of zone procedures under certain circumstances pursuant to § 400.49(c).
              (e) Determinations of the Board. Determinations of the Board shall be by the unanimous vote of the members (or alternate members) of the Board, which shall be recorded.

              § 400.4
              Authority and responsibilities of the Executive Secretary.
              The Executive Secretary has the following responsibilities and authority:
              (a) Represent the Board in administrative, regulatory, operational, and public affairs matters;
              (b) Serve as director of the Commerce Department's Foreign-Trade Zones staff;
              (c) Execute and implement orders of the Board;
              (d) Arrange meetings and direct circulation of action documents for the Board;
              (e) Arrange with other sections of the Department of Commerce and other governmental agencies for studies and comments on zone issues and proposals;
              (f) Maintain custody of the seal, records, files and correspondence of the Board, with disposition subject to the regulations of the Department of Commerce;

              (g) Issue notices on zone matters for publication in the Federal Register;
              (h) Direct processing of applications and reviews, including designation of examiners and scheduling of hearings, under various sections of this part;
              (i) Make determinations on questions pertaining to grantees' applications for subzones as provided in § 400.12(d);
              (j) Make recommendations in cases involving questions as to whether zone activity should be prohibited or restricted for public interest reasons, including proceedings and reviews under § 400.5;
              (k) Determine questions of scope under § 400.14(d);
              (l) Determine whether additional information is needed for evaluation of applications and other requests for decisions under this part, as provided for in various sections of this part, including §§ 400.21-400.25;
              (m) Issue instructions, guidelines, forms and related documents specifying time, place, manner and formats for applications and notifications in various sections of this part, including §§ 400.21(b) and 400.43(f);

              (n) Determine whether proposed modifications are major modifications or minor modifications under § 400.24(a)(2);
              (o) Determine whether applications meet pre-docketing requirements under § 400.31(b);
              (p) Terminate reviews of applications under certain circumstances pursuant to § 400.36(g);
              (q) Authorize minor modifications to zones under § 400.38, commencement of production activity under § 400.37(d) and subzone designation under § 400.36(f);
              (r) Review notifications for production authority under § 400.37;
              (s) Direct monitoring and reviews of zone operations and activity under § 400.49;
              (t) Review rate schedules and determine their sufficiency under § 400.44(c);
              (u) Assess potential issues and make recommendations pertaining to uniform treatment under § 400.43 and review and decide complaint cases under § 400.45;
              (v) Make certain determinations and authorizations pertaining to retail trade under § 400.47;
              (w) Authorize under certain circumstances the entry of “zone-restricted merchandise” into the customs territory under § 400.48;
              (x) Determine the format and deadlines for the annual reports of zone grantees to the Board and direct preparation of an annual report from the Board to Congress under § 400.51(c);
              (y) Make recommendations and certain determinations regarding violations and fines, and undertake certain procedures related to the suspension of activated status, as provided in § 400.62; and
              (z) Designate an acting Executive Secretary.

              § 400.5
              Authority to restrict or prohibit certain zone operations.
              The Board may conduct a proceeding, or the Executive Secretary a review, to consider a restriction or prohibition on zone activity. Such proceeding or review may be either self-initiated or in response to a complaint made to the Board by a person directly affected by the activity in question and showing good cause. After a proceeding or review, the Board may restrict or prohibit any admission of merchandise or process of treatment in an activated FTZ site when it determines that such activity is detrimental to the public interest, health or safety.

              § 400.6
              Board headquarters.
              The headquarters of the Board are located within the U.S. Department of Commerce (Herbert C. Hoover Building), 1401 Constitution Avenue NW., Washington, DC 20230, within the office of the Foreign-Trade Zones staff.

              § 400.7
              CBP officials as Board representatives.
              CBP officials with oversight responsibilities for a port of entry represent the Board with regard to the zones adjacent to the port of entry in question and are responsible for enforcement, including physical security and access requirements, as provided in 19 CFR part 146.

            Subpart B—Ability To Establish Zone; Limitations and Restrictions on Authority Granted

              § 400.11
              Number and location of zones and subzones.
              (a) Number of zones—port of entry entitlement. (1) Provided that the other requirements of this part are met:
              (i) Each port of entry is entitled to at least one zone;
              (ii) If a port of entry is located in more than one state, each of the states in which the port of entry is located is entitled to a zone; and
              (iii) If a port of entry is defined to include more than one city separated by a navigable waterway, each of the cities is entitled to a zone.
              (2) Applications pertaining to zones in addition to those approved under the entitlement provision of paragraph (a)(1) of this section may be approved by the Board if it determines that the existing zone(s) will not adequately serve the convenience of commerce.
              (b) Location of zones and subzones—port of entry adjacency requirements. (1) The Board may approve “zones in or adjacent to ports of entry” (19 U.S.C. 81b).

              (2) The “adjacency” requirement is satisfied if:

              (i) A general-purpose zone site is located within 60 statute miles or 90 minutes' driving time (as determined or concurred upon by CBP) from the outer limits of a port of entry boundary as defined in 19 CFR 101.3.
              (ii) A subzone meets the following requirements relating to CBP supervision:
              (A) Proper CBP oversight can be accomplished with physical and electronic means;
              (B) All electronically produced records are maintained in a format compatible with the requirements of CBP for the duration of the record period; and
              (C) The operator agrees to present merchandise for examination at a CBP site selected by CBP when requested, and further agrees to present all necessary documents directly to the relevant CBP oversight office.

              § 400.12
              Eligible applicants.
              (a) In general. Subject to the other provisions of this section, public or private corporations may apply for grants of authority to establish zones. The Board shall give preference to public corporations.
              (b) Public corporations and private non-profit corporations. The eligibility of public corporations and private non-profit corporations to apply for a grant of authority shall be supported by enabling legislation of the legislature of the state in which the zone is to be located, indicating that the corporation, individually or as part of a class, is authorized to so apply. Any application must not be inconsistent with the charter or organizational papers of the applying entity.
              (c) Private for-profit corporations. The eligibility of private for-profit corporations to apply for a grant of authority shall be supported by a special act of the state legislature naming the applicant corporation and by evidence indicating that the corporation is chartered for the purpose of establishing a zone.
              (d) Applicants for subzones (except pursuant to § 400.24(c))—(1) Eligibility. The following entities are eligible to apply to establish a subzone:
              (i) The grantee of the closest zone in the same state;
              (ii) The grantee of another zone in the same state, which is a public corporation (or a non-public corporation if no such other public corporation exists), if the Board, or the Executive Secretary, finds that such sponsorship better serves the public interest; or
              (iii) A state agency specifically authorized to submit such an application by an act of the state legislature.
              (2) Notification of closest grantee. If an application is submitted under paragraph (d)(1)(ii) or (iii) of this section, the Executive Secretary shall:
              (i) Notify, in writing, the grantee specified in paragraph (d)(1)(i) of this section, which may, within 30 days, object to such sponsorship, in writing, with supporting information as to why the public interest would be better served by its acting as sponsor;
              (ii) Review such objections prior to docketing the application to determine whether the proposed sponsorship is in the public interest, taking into account:
              (A) The objecting zone's structure and operation;
              (B) The views of state and local public agencies; and
              (C) The views of the proposed subzone operator;
              (iii) Notify the applicant and objecting zone in writing of the Executive Secretary's determination;
              (iv) If the Executive Secretary determines that the proposed sponsorship is in the public interest, docket the application (see § 400.63 regarding appeals of decisions of the Executive Secretary).

              § 400.13
              General conditions, prohibitions and restrictions applicable to authorized zones.
              (a) In general. Grants of authority issued by the Board for the establishment of zones and any authority subsequently approved for such zones, including those already issued, are subject to the Act and this part and the following general conditions or limitations:

              (1) Prior to activation of a zone, the zone grantee or operator shall obtain all necessary permits from federal, state and local authorities, and except as otherwise specified in the Act or this part, shall comply with the requirements of those authorities.

              (2) A grant of authority approved under this part includes authority for the grantee to permit the erection of buildings necessary to carry out the approved zone (subject to concurrence of CBP for an activated area of a zone).
              (3) Approvals from the grantee (or other party acting on behalf of the grantee, where applicable) and CBP, pursuant to 19 CFR part 146, are required prior to the activation of any portion of an approved zone.
              (4) Authority for a zone or a subzone shall lapse unless the zone (in case of subzones, the subzone facility) is activated, pursuant to 19 CFR part 146, and in operation not later than five years from the authorization of the zone or subzone, subject to the provisions of Board Order 849 (61 FR 53305, October 11, 1996).
              (5) Zone grantees, operators, and users (and persons undertaking zone-related functions on behalf of grantees, where applicable) shall permit federal government officials acting in an official capacity to have access to the zone and records during normal business hours and under other reasonable circumstances.
              (6) Activity involving production is subject to the specific provisions in § 400.14.
              (7) A grant of authority may not be sold, conveyed, transferred, set over, or assigned (FTZ Act, section 17; 19 U.S.C. 81q).
              (8) Private ownership of zone land and facilities is permitted, provided the zone grantee retains the control necessary to implement the approved zone. Such permission shall not constitute a vested right to zone designation, nor interfere with the Board's regulation of the grantee or the permittee, nor interfere with or complicate the revocation of the grant by the Board. Should title to land or facilities be transferred after a grant of authority is issued, the zone grantee must retain, by agreement with the new owner, a level of control which allows the grantee to carry out its responsibilities as grantee. The sale of zone-designated land/facility for more than its fair market value without zone designation could, depending on the circumstances, be subject to the prohibitions set forth in section 17 of the Act (19 U.S.C. 81q).
              (b) Board authority to restrict or prohibit activity. Pursuant to section 15(c) of the Act (19 U.S.C. 81o(c)), the Board has authority to “order the exclusion from [a] zone of any goods or process of treatment that in its judgment is detrimental to the public interest, health, or safety.” In approvals of proposed production authority pursuant to § 400.14(a), the Board may adopt restrictions to protect the public interest, health, or safety. When evaluating production activity, either as proposed in an application or as part of a review of an operation, the Board shall determine whether the activity is in the public interest by reviewing it in relation to the evaluation criteria contained in § 400.27.
              (c) Additional conditions, prohibitions and restrictions. Other conditions/requirements, prohibitions and restrictions under Federal, State or local law may apply to authorized zones and subzones.

              § 400.14
              Production—requirement for prior authorization; restrictions.
              (a) In general. Production activity in zones shall not be conducted without prior authorization from the Board. To obtain authorization, the notification process provided for in §§ 400.22 and 400.37 shall be used. If Board review of a notification under § 400.37 results in a determination that further review is warranted for all or part of the notified activity, the application process pursuant to §§ 400.23, 400.31-400.32, 400.34 and 400.36 shall apply to the activity.
              (b) Scope of authority. Production activity that may be conducted in a particular zone operation is limited to the specific foreign-status materials and components and specific finished products described in notifications and applications that have been authorized pursuant to paragraph (a) of this section, including any applicable prohibitions or restrictions. A determination may be requested pursuant to paragraph (d) of this section as to whether particular activity falls within the scope of authorized activity. Unauthorized activity could be subject to penalties pursuant to the customs regulations on foreign-trade zones (19 CFR part 146).
              (c) Information about authorized production activity. The Board shall make available via its Web site information regarding the materials, components, and finished products associated with individual production operations authorized under these and previous regulations, as derived from applications and notifications submitted to the Board.
              (d) Scope determinations. Determinations may be made by the Executive Secretary as to whether changes in activity are within the scope of the production activity already authorized under this part. When warranted, the procedures of §§ 400.32 and 400.34 shall be followed.
              (e) Restrictions on items subject to antidumping and countervailing duty actions—(1) Board policy. Zone procedures shall not be used to circumvent antidumping duty (AD) and countervailing duty (CVD) actions under 19 CFR part 351.
              (2) Admission of items subject to AD/CVD actions. Items subject to AD/CVD orders, or items which would be otherwise subject to suspension of liquidation under AD/CVD procedures if they entered U.S. customs territory, shall be placed in privileged foreign status (19 CFR 146.41) upon admission to a zone or subzone. Upon entry for consumption, such items shall be subject to duties under AD/CVD orders or to suspension of liquidation, as appropriate, under 19 CFR part 351.

              § 400.15
              Production equipment.
              (a) In general. Pursuant to section 81c(e) of the FTZ Act, merchandise that is admitted into a foreign-trade zone for use within such zone as production equipment or as parts for such equipment, shall not be subject to duty until such merchandise is completely assembled, installed, tested, and used in the production for which it was admitted. Payment of duty may be deferred until such equipment goes into use as production equipment as part of zone production activity, at which time the equipment shall be entered for consumption as completed equipment.
              (b) Definition of production equipment. Eligibility for this section is limited to equipment and parts of equipment destined for use in zone production activity as defined in § 400.2(o) of this part. Ineligible for treatment as production equipment under this section are general materials (that are used in the installation of production equipment or in the assembly of equipment) and materials used in the construction or modification of the plant that houses the production equipment.
              (c) Equipment not destined for zone activity. Production equipment or parts that are not destined for use in zone production activity shall be treated as normal merchandise eligible for standard zone-related benefits (i.e., benefits not subject to the requirements of § 400.14(a)), provided the equipment is entered for consumption or exported prior to its use.

              § 400.16
              Exemption from state and local ad valorem taxation of tangible personal property.

              Tangible personal property imported from outside the United States and held in a zone for the purpose of storage, sale, exhibition, repackaging, assembly, distribution, sorting, grading, cleaning, mixing, display, manufacturing, or processing, and tangible personal property produced in the United States and held in a zone for exportation, either in its original form or as altered by any of the above processes, shall be exempt from state and local ad valorem taxation.

            Subpart C—Applications To Establish and Modify Authority

              § 400.21
              Application to establish a zone.
              (a) In general. An application for a grant of authority to establish a zone (including pursuant to the ASF procedures adopted by the Board; see 74 FR 1170, Jan. 12, 2009, 74 FR 3987, Jan. 22, 2009, and 75 FR 71069, Nov. 22, 2010) shall consist of an application letter and detailed contents to meet the requirements of this part.
              (b) Application format. Applications pursuant to this part shall comply with any instructions, guidelines, and forms or related documents, published in the Federal Register and made available on the Board's Web site, as established by the Executive Secretary specific to the type of application in question. An application submitted that uses a superseded format shall be processed unless the format has not been current for a period in excess of one year.
              (c) Application letter. The application letter shall be dated within six months prior to the submission of the application and signed by an officer of the corporation authorized in the resolution for the application (see § 400.21(d)(1)(iii)). The application letter shall also describe:
              (1) The relationship of the proposal to the state enabling legislation and the grantee's charter;
              (2) The specific authority requested from the Board;
              (3) The proposed zone site(s) and facility(ies) and any larger project of which the zone is a part;
              (4) The project background;
              (5) The relationship of the project to the community's and state's international trade-related goals and objectives;
              (6) Any production authority requested; and
              (7) Any additional pertinent information needed for a complete summary description of the proposal.
              (d) Detailed contents. (1) Legal authority for the application shall be documented with:
              (i) A current copy of the state enabling legislation described in §§ 400.12(b) and (c);
              (ii) A copy of the relevant sections of the applicant's charter or organization papers; and
              (iii) A certified copy of a resolution of the applicant's governing body specific to the application authorizing the official signing the application letter. The resolution must be dated no more than six months prior to the submission of the application.
              (2) Site descriptions (including a table with site designations when more than one site is involved) shall be documented with:
              (i) A detailed description of the zone site, including size, location, and address (and legal description or its equivalent in instances where the Executive Secretary determines it is needed to supplement the maps in the application), as well as dimensions and types of existing and proposed structures, master planning, and timelines for construction of roads, utilities and planned buildings;
              (ii) Where applicable, a summary description of the larger project of which the site is a part, including type, size, location and address;
              (iii) A statement as to whether the site is within or adjacent to a CBP port of entry (including distance from the limits of the port of entry and, if the distance exceeds 60 miles, driving time from the limits of the port of entry);
              (iv) A description of existing or proposed site qualifications, including appropriate land-use zoning (with environmentally sensitive areas avoided) and physical security;
              (v) A description of current and planned activities associated with the site;
              (vi) A summary description of transportation systems, facilities, and services, including connections from local and regional transportation hubs to the zone;
              (vii) A statement regarding the environmental aspects of the proposal;
              (viii) The estimated time schedules for construction and activation; and
              (ix) A statement as to the possibilities and plans for future expansion of the site.
              (3) Operation and financing shall be documented with:
              (i) A statement as to site ownership (if not owned by the applicant or proposed operator, evidence as to their legal right to use the site);
              (ii) A discussion of plans for operations at the site;
              (iii) A commitment to satisfy the requirements for CBP automated systems; and
              (iv) A summary of the plans for financing the project.
              (4) Economic justification shall be documented with:

              (i) A statement of the community's overall economic and trade-related goals and strategies in relation to those of the region and state, including a reference to the plan or plans on which the goals are based and how they relate to the zone project;
              (ii) An economic profile of the community including discussion of:
              (A) Dominant sectors in terms of employment or income;
              (B) Area strengths and weaknesses;
              (C) Unemployment rates; and
              (D) Area foreign trade statistics;
              (iii) A statement as to the role and objective of the zone project and a discussion of the anticipated economic impact, direct and indirect, of the zone project, including references to public costs and benefits, employment, and U.S. international trade;
              (iv) A separate justification for each proposed site, including a specific explanation addressing the degree to which the site may duplicate types of facilities at other proposed or existing sites in the zone;
              (v) A statement as to the need for zone services in the community, with specific expressions of interest from proposed zone users and letters of intent from those firms that are considered prime prospects for each specific proposed site; and
              (vi) For any production activity to be conducted at a proposed site, the separate requirements of § 400.14(a) must also be met.
              (5) Maps and site plans shall include the following documents:
              (i) State and county maps showing the general location of the proposed site(s) in terms of the area's transportation network;
              (ii) For any proposed site, a legible, detailed site plan of the zone area showing zone boundaries in red, with street name(s), and showing existing and proposed structures; and
              (iii) For proposals involving a change in existing zones, one or more maps showing the relationship between existing zone sites and the proposed changes.
              (e) ASF applications. In addition to the general application requirements of this section, applications under the ASF shall include the following, where applicable:
              (1) Service area.
              (2) Appropriate information regarding magnet sites.
              (3) Appropriate information regarding usage-driven sites.
              (f) Additional information. The Board or the Executive Secretary may require additional information needed to evaluate proposals adequately.
              (g) Amendment of application. The Board or the Executive Secretary may allow amendment of an application. Amendments which substantively expand the scope of an application shall be subject to comment period requirements such as those of § 400.32(c)(2) with a minimum comment period of 30 days.
              (h) Drafts. Applicants are encouraged to submit a draft application to the Executive Secretary for review. A draft application must be complete with the possible exception of the application letter and/or resolution from the grantee.
              (i) Format and number of copies. Unless the Executive Secretary alters the requirements of this paragraph, the applicant shall submit an original (including original documents to meet the requirements of paragraphs (c) and (d)(1)(iii) of this section) and one copy of the application, both on 81/2 ″ × 11″ (216 × 279 mm) paper, and an electronic copy.
              (j) Where to submit an application: Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230. Options for submission of electronic copies are described on the FTZ Board's Web site.

                Effective Date Note:
                At 77 FR 12139, Feb. 28, 2012, § 400.21 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.

              § 400.22
              Notification for production authority.

              Notifications requesting production authority pursuant to § 400.14(a) shall comply with any instructions, guidelines, and forms or related documents, published in the Federal Register and made available on the Board's Web site, as established by the Executive Secretary. Notifications shall contain the following information:
              (a) Identity of the user and its location;

              (b) Materials, components and finished products associated with the proposed activity, including the tariff schedule categories (6-digit HTSUS) and tariff rates; and
              (c) Information as to whether any material or component is subject to a trade-related measure or proceeding (e.g., AD/CVD order or proceeding, suspension of liquidation under AD/CVD procedures).

                Effective Date Note:
                At 77 FR 12139, Feb. 28, 2012, § 400.22 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.

              § 400.23
              Application for production authority.
              In addition to any applicable requirements set forth in § 400.21, an application requesting production authority pursuant to § 400.37(c) shall include:
              (a) A summary as to the reasons for the application and an explanation of its anticipated economic effects;
              (b) Identity of the user and its corporate affiliation;
              (c) A description of the proposed activity, including:
              (1) Finished products;
              (2) Imported (foreign-status) materials and components;
              (3) For each finished product and imported material or component, the tariff schedule category (6-digit HTSUS), tariff rate, and whether the material or component is subject to a trade-related measure or proceeding (e.g., AD/CVD order or proceeding, suspension of liquidation under AD/CVD procedures);
              (4) Domestic inputs, foreign inputs, and plant value added as percentages of finished product value;
              (5) Projected shipments to domestic market and export market (percentages);
              (6) Estimated total or range of annual value of benefits to proposed user (broken down by category), including as a percent of finished product value;
              (7) Annual production capacity (current and planned) for the proposed FTZ activity, in units;
              (8) Information to assist the Board in making a determination under § 400.27(a)(3) and 400.27(b);
              (9) Information as to whether alternative procedures have been considered as a means of obtaining the benefits sought;
              (10) Information on the industry involved and extent of international competition; and
              (11) Economic impact of the operation on the area; and
              (d) Any additional information requested by the Board or the Executive Secretary in order to conduct the review.

                Effective Date Note:
                At 77 FR 12139, Feb. 28, 2012, § 400.23 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.

              § 400.24
              Application for expansion or other modification to zone.
              (a) In general. (1) A grantee may apply to the Board for authority to expand or otherwise modify its zone (including pursuant to the ASF procedures adopted by the Board; see 74 FR 1170, Jan. 12, 2009, 74 FR 3987, Jan. 22, 2009, and 75 FR 71069, Nov. 22, 2010).
              (2) The Executive Secretary, in consultation with CBP as appropriate, shall determine whether the proposed modification involves a major change in the zone plan and is thus subject to paragraph (b) of this section, or is minor and subject to paragraph (c) of this section. In making this determination the Executive Secretary shall consider the extent to which the proposed modification would:
              (i) Substantially modify the plan originally approved by the Board; or
              (ii) Expand the physical dimensions of the approved zone area as they relate to the scope of operations envisioned in the original plan.
              (b) Major modification to zone. An application for a major modification of an approved zone shall be submitted in accordance with the requirements of § 400.21, except that the content submitted pursuant to § 400.21(d)(4) (economic justification) shall relate specifically to the proposed change.
              (c) Minor modification to zone. Other applications or requests under this subpart shall be submitted in letter form with information and documentation necessary for analysis, as determined by the Executive Secretary, who shall determine whether the proposed change is a minor one subject to this paragraph (c) instead of paragraph (b) of this section (see § 400.38). Such applications or requests include those for minor revisions of general-purpose zone or subzone boundaries based on immediate need, as well as for designation as a subzone of all or part of an existing zone site(s) (or site(s) that qualifies for usage-driven status), where warranted by the circumstances and so long as the subzone activity remains subject to the activation limit (see § 400.2(b)) for the zone in question.
              (d) Applications for other revisions to authority. Applications or requests for other revisions to authority, such as for Board action to establish or modify an activation limit for a zone, modification of a restriction or reissuance of a grant of authority, shall be submitted in letter form with information and documentation necessary for analysis, as determined by the Executive Secretary. If the change involves the removal or significant modification of a restriction included by the Board in its approval of authority or the reissuance of a grant of authority, the review procedures of §§ 400.31-400.34 and 400.36 shall be followed, where relevant. If not, the procedure set forth in § 400.38 shall generally apply (although the Executive Secretary may elect to follow the procedures of §§ 400.31-400.34 and 400.36 when warranted).

              § 400.25
              Application for subzone designation.
              In addition to the requirements of §§ 400.21(d)(1)(i) and (ii) pertaining to legal authority, § 400.21(d)(2)(vii) pertaining to environmental aspects of the proposal, and § 400.21(d)(3)(i) and (iii) pertaining to operation, a grantee's application for subzone designation shall contain the following information:
              (a) The name of the operator/user for which subzone designation is sought;
              (b) The nature of the activity at the proposed subzone;
              (c) The address(es) and physical size (acreage or square feet) of the proposed subzone location(s); and
              (d) One or more maps conforming to the requirements of section § 400.21(d)(5)(ii). For any production activity to be conducted at a proposed subzone, the separate requirements of § 400.14(a) must be met.

                Effective Date Note:
                At 77 FR 12139, Feb. 28, 2012, § 400.25 was added. This section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.

              § 400.26
              Criteria for evaluation of applications for expansions, subzones or other modifications of zones.
              The Board shall consider the following factors in determining whether to approve an application pertaining to a zone:
              (a) The need for zone services in the port of entry area, taking into account existing as well as projected international trade-related activities and employment impact;
              (b) The suitability of each proposed site and its facilities based on the plans presented for the site, including existing and planned buildings, zone-related activities, and the timeframe for development of the site;
              (c) The specific need and justification for each proposed site, taking into account existing sites and/or other proposed sites;
              (d) The extent of state and local government support, as indicated by the compatibility of the zone project with the community's master plan or stated goals for economic development and the views of state and local public officials involved in economic development. Such officials shall avoid commitments that anticipate the outcome of Board decisions;
              (e) The views of persons likely to be materially affected by proposed zone activity; and
              (f) If the application involves production activity, the criteria in § 400.27.

              § 400.27
              Criteria applicable to evaluation of applications for production authority.

              The Board shall apply the criteria set forth in this section in determining whether to approve an application for authority to conduct production activity pursuant to § 400.23. The Board's evaluation shall take into account such factors as market conditions, price sensitivity, degree and nature of foreign competition, intra-industry and intra-firm trade, effect on exports and imports, ability to conduct the proposed activity outside the United States with the same U.S. tariff impact, analyses conducted in connection with prior Board actions, and net effect on U.S. employment and the U.S. economy:
              (a) Threshold factors. It is the policy of the Board to authorize zone activity only when it is consistent with public policy and, in regard to activity involving foreign merchandise subject to quotas or inverted tariffs, when zone procedures are not the sole determining cause of imports. Thus, without undertaking a review of the economic factors enumerated in § 400.27(b), the Board shall deny or restrict authority for proposed or ongoing activity if it determines that:
              (1) The activity is inconsistent with U.S. trade and tariff law, or policy which has been formally adopted by the Executive branch;
              (2) Board approval of the activity under review would seriously prejudice U.S. tariff and trade negotiations or other initiatives; or
              (3) The activity involves items subject to quantitative import controls or inverted tariffs, and the use of zone procedures would be the direct and sole cause of imports that, but for such procedures, would not likely otherwise have occurred, taking into account imports both as individual items and as components of imported products.
              (b) Economic factors. After its review of threshold factors, if there is a basis for further consideration of the application, the Board shall consider the following factors in determining the net economic effect of the proposed activity:
              (1) Overall employment impact;
              (2) Exports and re-exports;
              (3) Retention or creation of value-added activity;
              (4) Extent of value-added activity;
              (5) Overall effect on import levels of relevant products;
              (6) Extent and nature of foreign competition in relevant products;
              (7) Impact on related domestic industry, taking into account market conditions; and
              (8) Other relevant information relating to the public interest and net economic impact considerations, including technology transfers and investment effects.
              (c) The significant public benefit(s) that would result from the production activity, taking into account the factors in paragraphs (a) and (b) of this section.
              (d) Contributory effect. In assessing the significance of the economic effect of the proposed zone activity as part of the consideration of economic factors, and considering whether it would result in a significant public benefit(s), the Board may consider the contributory effect zone savings have as an incremental part of cost-effectiveness programs adopted by companies to improve their international competitiveness.

              § 400.28
              Burden of proof.
              (a) In general. An applicant must demonstrate to the Board that its application meets the criteria set forth in these regulations. Applications for production-related authority shall contain evidence regarding the positive economic effect(s) and significant public benefit(s) that would result from the proposed activity and may submit evidence and comments concerning policy considerations.
              (b) Comments on applications. Comments submitted regarding applications should provide information that is probative and substantial in addressing the matter at issue relative to the nature of the proceeding, including any evidence of the projected direct impact of the proposed authority.
              (c) Requests for extensions of comment periods. Requests for extensions of comment periods shall include a description of the potential impact of the proposed authority and the specific actions or steps for which additional time is necessary.
              (d) Responses to comments on applications. Submissions in response to comments received during the public comment period or pursuant to § 400.33(e)(1) or § 400.34(a)(5)(iv)(A) should contain evidence that is probative and substantial in addressing the matter at issue.

              § 400.29
              Application fees.
              (a) In general. This section sets forth a uniform system of charges in the form of fees to recover some costs incurred by the Foreign-Trade Zones staff of the Department of Commerce in processing the applications listed in paragraph (b) of this section. The legal authority for the fees is 31 U.S.C. 9701, which provides for the collection of user fees by agencies of the Federal Government.
              (b) Uniform system of user fee charges. The following fee schedule establishes fees for certain types of applications and requests for authority on the basis of their estimated average processing time. Applications combining requests for more than one type of approval are subject to the fee for each category.
              (1) Additional general-purpose zones (§ 400.21; § 400.11(a)(2))—$3,200
              (2) Special-purpose subzones (§ 400.25):
              (i) Not involving production activity or involving production activity with fewer than three products—$4,000
              (ii) Production activity with three or more products—$6,500
              (3) Expansions (§ 400.24(b))—$1,600
              (c) Applications submitted to the Board shall include a currently dated check drawn on a national or state bank or trust company of the United States or Puerto Rico in the amount called for in paragraph (b) of this section. Uncertified checks must be acceptable for deposit by the Board in a Federal Reserve bank or branch.
              (d) Applicants shall make their checks payable to the U.S. Department of Commerce ITA. The checks will be deposited by ITA into the Treasury receipts account. If applications are found deficient under § 400.31(b), or are withdrawn by applicants prior to formal docketing, refunds will be made.

            Subpart D—Procedures for Application Evaluation and Reviews

              § 400.31
              General application provisions and pre-docketing review.
              (a) In general. Sections 400.31-400.36 and 400.38 outline the procedures to be followed in docketing and processing applications submitted under §§ 400.21, 400.23, 400.24(b), and 400.25. In addition, these sections set forth the time schedules which will ordinarily apply in processing applications. The schedules will guide applicants with respect to the time frames for each of the procedural steps involved in the Board's review. Under these schedules, applications for subzone designation will generally be processed within 5 months (3 months for applications subject to § 400.36(f)) and applications to establish or expand zones will generally be processed within 10 months. The general timeframe to process applications for production authority is 12 months, but additional time is most likely to be required for applications requesting production authority when a complex or controversial issue is involved or when the applicant or other party has obtained a time extension for a particular procedural step. The timeframes specified apply from the time of docketing. Each applicant is responsible for submitting an application that meets the docketing requirements in a timeframe consistent with the applicant's need for action on its request.
              (b) Pre-docketing review. The grantee shall submit a single complete copy of an application for pre-docketing review. (For requests relating to production in already approved zone or subzone space, the request may be submitted by the operator, provided the operator at the same time furnishes a copy of the request to the grantee.) The Executive Secretary shall determine whether the application satisfies the requirements of §§ 400.12, 400.21, 400.23-400.25, and other applicable provisions of this part such that the application is sufficient for docketing. If the pre-docketing copy of the application is deficient, the Executive Secretary shall notify the applicant within 30 days of receipt of the pre-docketing copy, specifying the deficiencies. An affected zone participant may also be contacted regarding relevant application elements requiring additional information or clarification. If the applicant does not correct the deficiencies and submit a corrected pre-docketing application copy within 30 days of notification, the pre-docketing application (single copy) shall be discarded.

              § 400.32
              Procedures for docketing applications and commencement of case review.
              (a) Once the pre-docketing copy of the application is determined to be sufficient, the Executive Secretary shall notify the applicant within 15 days so that the applicant may then submit the original and requisite number of copies (which shall be dated upon receipt at the headquarters of the Board) for docketing by the Board. For applications subject to § 400.29, the original shall be accompanied with a check in accordance with that section.
              (b) After the procedures described in paragraph (a) of this section are completed, the Executive Secretary shall within 15 days of receipt of the original and required number of copies of the application:
              (1) Formally docket the application, thereby initiating the proceeding or review;
              (2) Assign a case-docket number; and
              (3) Notify the applicant of the formal docketing action.
              (c) After initiating a proceeding based on an application under §§ 400.21 and 400.23-400.25, the Executive Secretary shall:
              (1) Designate an examiner to conduct a review and prepare a report or memorandum with recommendations for the Board;
              (2) Publish in the Federal Register a notice of the formal docketing of the application and initiation of the review. The notice shall include the name of the applicant, a description of the proposal, and an invitation for public comment. If the application requests authority for production activity and indicates that a component to be used in the activity is subject to a trade-related measure or proceeding (e.g., AD/CVD order or proceeding, suspension of liquidation under AD/CVD procedures), the notice shall include that information. For applications to establish or expand a zone or for production authority, the comment period shall normally close 60 days after the date the notice appears. For applications for subzone designation, the comment period shall normally close 40 days after the date the notice appears. However, if a hearing is held (see § 400.52), the comment period shall not close prior to 15 days after the date of the hearing. The closing date for general comments shall ordinarily be followed by an additional 15-day period for rebuttal comments. Requests for extensions of a comment period will be considered, subject to the standards of § 400.28(c). Submissions must meet the requirements of § 400.28(b). With the exception of submissions by the applicant, any new evidence or new factual information and any written arguments submitted after the deadlines for comments shall not be considered by the examiner or the Board. Submission by the applicant of new evidence or new factual information may result in the (re)opening of a comment period. A comment period may otherwise be opened or reopened for cause;
              (3) Transmit or otherwise make available copies of the docketing notice and the application to CBP;
              (4) Arrange for hearings, as appropriate;
              (5) Transmit the report and recommendations of the examiner and any comments by CBP to the Board for appropriate action; and

              (6) Notify the applicant in writing (via electronic means, where appropriate) and publish notice in the Federal Register of the Board's determination.
              (d) CBP review. Any comments by CBP pertaining to the application shall be submitted to the Executive Secretary by the conclusion of the public comment period described in paragraph (c)(2) of this section.

              § 400.33
              Examiner's review—application to establish or modify a zone.
              An examiner assigned to review an application to establish, reorganize or expand a zone shall conduct a review taking into account the factors enumerated in § 400.26 and other appropriate sections of this part, which shall include:
              (a) Conducting or participating in hearings scheduled by the Executive Secretary;
              (b) Reviewing case records, including public comments;
              (c) Requesting information and evidence from parties of record;

              (d) Developing information and evidence necessary for evaluation and analysis of the application in accordance with the criteria of the Act and this part; and
              (e) Developing recommendations to the Board and submitting a report to the Executive Secretary, generally within 150 days of the close of the period for public comment (75 days for reorganizations under the ASF) (see § 400.32):
              (1) If the recommendations are unfavorable to the applicant, they shall be considered preliminary and the applicant shall be notified in writing (via electronic means, where appropriate) of the preliminary recommendations and the factors considered in their development. The applicant shall be given 30 days from the date of notification, subject to extensions upon request by the applicant, which shall not be unreasonably withheld, in which to respond to the recommendations and submit additional evidence pertinent to the factors considered in the development of the preliminary recommendations. Public comment may be invited on preliminary recommendations when warranted.

              (2) If the response contains new evidence on which there has been no opportunity for public comment, the Executive Secretary shall publish a notice in the Federal Register after completion of the review of the response. The new material shall be made available for public inspection and the Federal Register notice shall invite further public comment for a period of not less than 30 days, with an additional 15-day period for rebuttal comments.
              (3) If the bases for an examiner's recommendation(s) change as a result of new evidence, the applicable procedures of §§ 400.33(e)(1) and (2) shall be followed.
              (4) When necessary, a request may be made to CBP to provide further comments, which shall be submitted within 45 days after the request.

              § 400.34
              Examiner's review—application for production authority.
              (a) The examiner shall conduct a review taking into account the factors enumerated in this section, § 400.27, and other appropriate sections of this part, which shall include:
              (1) Conducting or participating in hearings scheduled by the Executive Secretary;
              (2) Reviewing case records, including public comments;
              (3) Requesting information and evidence from parties of record and others, as warranted;
              (4) Developing information and evidence necessary for analysis of the threshold factors and the economic factors enumerated in § 400.27; and
              (5) Conducting an analysis to include:
              (i) An evaluation of policy considerations pursuant to §§ 400.27(a)(1) and (2);
              (ii) An evaluation of the economic factors enumerated in §§ 400.27(a)(3) and 400.27(b), which shall include an evaluation of the economic impact on domestic industry, considering both producers of like products and producers of components/materials used in the production activity;
              (iii) Conducting appropriate industry research and surveys, as necessary; and
              (iv) Developing recommendations to the Board and submitting a report to the Executive Secretary, generally within 150 days of the close of the period for public comment (although additional time may be required in circumstances such as when the applicant or other party has obtained a time extension for a particular procedural step):
              (A) If the recommendations are unfavorable to the applicant, they shall be considered preliminary and the applicant shall be notified in writing (via electronic transmission where appropriate) of the preliminary recommendations and the factors considered in their development. The applicant shall be given 45 days from the date of notification in which to respond to the recommendations and submit additional evidence pertinent to the factors considered in the development of the preliminary recommendations. Public comment may be invited on preliminary recommendations when warranted.

              (B) If the response contains new evidence on which there has not been an opportunity for public comment, the Executive Secretary shall publish notice in the Federal Register after completion of the review of the response. The new material shall be made available for public inspection and the Federal Register notice shall invite further public comment for a period of not less than 30 days, with an additional 15-day period for rebuttal comments.
              (C) If the bases for an examiner's recommendation(s) change as a result of new evidence, the applicable procedures of §§ 400.34(a)(5)(iv)(A) and (B) shall be followed.
              (b) Methodology and evidence. The evaluation of an application for production authority shall include the following steps:
              (1) The first phase (§ 400.27(a)) involves consideration of threshold factors. If an examiner or reviewer makes a negative finding on any of the factors in § 400.27(a) in the course of a review, the applicant shall be informed pursuant to § 400.34(a)(5)(iv)(A). When threshold factors are the basis for a negative recommendation in a review of ongoing activity, the zone grantee and directly affected party shall be notified and given an opportunity to submit evidence pursuant to § 400.34(a)(5)(iv)(A). If the Board determines in the negative regarding any of the factors in § 400.27(a), it shall deny or restrict authority for the proposed or ongoing activity.
              (2) The second phase (§ 400.27(b)) involves consideration of the enumerated economic factors, taking into account their relative weight and significance under the circumstances. Previous evaluations in similar cases shall be considered.

              § 400.35
              Examiner's review—application for subzone designation.
              The examiner shall develop a memorandum with a recommendation on whether to approve the application, taking into account the criteria enumerated in § 400.26. To develop that memorandum, the examiner shall review the case records including public comments, and may request information and evidence from parties of record, as necessary. The examiner's memorandum shall generally be submitted to the Board within 30 days of the close of the period for public comment. However, additional time may be taken as necessary for analysis of any public comment in opposition to the application or if other complicating factors arise.
              (a) If the examiner's recommendation is unfavorable to the applicant, it shall be considered preliminary and the applicant shall be notified in writing (via electronic means, where appropriate) of the preliminary recommendation and the factors considered in its development. The applicant shall be given 30 days from the date of notification, subject to extensions upon request by the applicant, which shall not be unreasonably withheld, in which to respond to the recommendation and submit additional evidence pertinent to the factors considered in the development of the preliminary recommendations. Public comment may be invited on preliminary recommendations when warranted.

              (b) If the response contains new evidence on which there has not been an opportunity for public comment, the Executive Secretary shall publish notice in the Federal Register after completion of the review of the response. The new material shall be made available for public inspection and the Federal Register notice shall invite further public comment for a period of not less than 30 days, with an additional 15-day period for rebuttal comments.
              (c) If the bases for an examiner's recommendation(s) change as a result of new evidence, the applicable procedures of §§ 400.35(a) and (b) shall be followed.
              (d) The CBP adviser shall be requested, when necessary, to provide further comments, which shall be submitted within 45 days after the request.

              § 400.36
              Completion of case review.
              (a) The Executive Secretary shall circulate the examiner's report (memorandum in the case of subzone applications) with recommendations to CBP headquarters staff and to the Treasury Board member for review and action.
              (b) In its advisory role to the Board, CBP headquarters staff shall provide any comments within 15 days.

              (c) The vote of the Treasury Board member shall be returned to the Executive Secretary within 30 days, unless a formal meeting is requested (see, § 400.3(b)).

              (d) The Commerce Department shall complete the decision process within 15 days of receiving the vote of the Treasury Board member, and the Executive Secretary shall publish the Board decision.
              (e) If the Board is unable to reach a unanimous decision, the grantee shall be notified and provided an opportunity to meet with the Board members or their delegates.
              (f) Delegation of authority to approve subzone designation. The Board delegates to the Executive Secretary authority to approve applications requesting subzone designation, on the condition that such approved subzones will be subject to the activation limit for the zone in question.
              (g) The Board or the Commerce Department's Assistant Secretary for Enforcement and Compliance may opt to terminate review of an application with no further action if the applicant has failed to provide in a timely manner information needed for evaluation of the application. A request from an applicant for an extension of time to provide information needed for evaluation of an application shall not be unreasonably withheld. The Executive Secretary may terminate review of an application where the overall circumstances presented in the application no longer exist as a result of a material change, and shall notify the applicant in writing of the intent to terminate review and allow 30 days for a response prior to completion of any termination action. The Executive Secretary shall confirm the termination in writing (by electronic means, where appropriate) to the applicant.

              § 400.37
              Procedure for notification of proposed production activity.
              (a) Submission of notification. A notification for production authority pursuant to §§ 400.14(a) and 400.22 shall be submitted simultaneously to the Board's Executive Secretary and to CBP (as well as to the grantee of the zone, if the grantee is not the party making the submission).
              (b) Initial processing of notification. Upon receipt of a complete notification conforming to the requirements of the notification format established by the Executive Secretary pursuant to § 400.22, the Executive Secretary shall commence processing the notification. Unless the Executive Secretary determines, based on the content of the notification, to recommend further review to the Board without inviting public comment on the notification, the Executive Secretary shall transmit to the Federal Register a notice inviting public comment on the notification (with such comment subject to the standards of § 400.28(b)). The notice shall be transmitted to the Federal Register within 15 days of the commencement of the processing of the notification, and the comment period shall normally close 40 days after the date the notice appears. If the notification indicates that a material or component to be used in the activity is subject to an AD/CVD order or proceeding, or suspension of liquidation under AD/CVD procedures, the notice shall include that information. Evidence, factual information and written arguments submitted in response to the notice must be submitted by the deadline for comments. Any comments by CBP pertaining to the notification shall be submitted to the Executive Secretary by the end of the comment period. Within 80 days of receipt of the notification, the Executive Secretary shall submit to the Board a recommendation on whether further review of all or part of the activity subject to the notification is warranted. The Executive Secretary's recommendation shall consider comments submitted during the comment period, any guidance from specialists within government, and other relevant factors based on the Board staff's assessment of the notification, in the context of the factors set forth in § 400.27.
              (c) Determinations regarding further review. Within 30 days of receipt of the Executive Secretary's recommendation, the Board members shall provide to the Executive Secretary their determinations on whether further review is warranted concerning all or part of the activity that is the subject of the notification. If either Board member makes a determination that further review is warranted, the activity that is subject to further review (which may constitute all or part of the notified activity) shall not be conducted without authorization pursuant to the application requirements of § 400.23 and the procedural requirements of §§ 400.31-400.34 and 400.36 (or the provisions of paragraph (d) of this section, where applicable). Within 120 days of receipt of the notification, the Executive Secretary shall notify the party that submitted the notification (and the zone grantee, if it did not submit the notification) that:
              (1) Further review is not needed for all or part of the activity that is the subject of the notification, and that the activity in question may be conducted; or
              (2) Further review is needed for all or part of the activity that is the subject of the notification, with such activity precluded absent specific authorization.
              (d) Authorization for commencement of an activity on an interim basis. For an activity notified pursuant to § 400.14(a), the Executive Secretary may authorize the commencement of some or all of the activity on an interim basis. Such authorization shall only be made based on a showing that commencement of the activity is time-sensitive, with such showing to include comments from CBP that specifically address the projected timeframe for commencement of the activity. Interim authorization shall not apply to materials or components subject to an AD/CVD order or proceeding or suspension of liquidation under AD/CVD procedures. As warranted, a determination that further review is needed for all or some of the notified activity pursuant to § 400.37(c) may also revoke the interim authorization until the Board makes a determination after conduct of that further review.

              § 400.38
              Procedure for application for minor modification of zone.
              (a) The Executive Secretary shall make a determination in cases under § 400.24(c) involving minor modifications of zones that do not require Board action, such as boundary modifications, including certain relocations, and shall notify the applicant in writing of the decision within 30 days of the determination that the application or request can be processed under § 400.24(c). The applicant shall submit a copy of its application/request to CBP no later than the time of the applicant's submission of the application/request to the Executive Secretary.
              (b) If not previously provided to the applicant for inclusion with the applicant's submission of the application/request to the Executive Secretary, any CBP comments on the application/request shall be provided to the Executive Secretary within 20 days of the applicant's submission of the application/request to the Executive Secretary.

            Subpart E—Operation of Zones and Administrative Requirements

              § 400.41
              General operation of zones; requirements for commencement of operations.
              (a) In general. Zones shall be operated by or under the general management of zone grantees, subject to the requirements of the FTZ Act and this part, as well as those of other federal, state and local agencies having jurisdiction over the site(s) and operation(s). Zone grantees shall ensure that the reasonable zone needs of the business community are served by their zones. CBP officials with oversight responsibilities for a port of entry represent the Board with regard to the zones adjacent to the port of entry in question and are responsible for enforcement, including physical security and access requirements, as provided in 19 CFR part 146.
              (b) Requirements for commencement of operations in a zone. The following actions are required before operations in a zone may commence:
              (1) The grantee shall submit the zone schedule to the Executive Secretary, as provided in § 400.44.
              (2) Approval or concurrence from the grantee and approval from CBP, pursuant to 19 CFR part 146, are required prior to the activation of any portion of an approved zone; and
              (3) Prior to activation of a zone, the operator shall obtain all necessary permits from federal, state and local authorities, and except as otherwise specified in the Act or this part, shall comply with the requirements of those authorities.

              § 400.42
              Operation as public utility.
              (a) In general. Pursuant to Section 14 of the FTZ Act (19 U.S.C. 81n), each zone shall be operated as a public utility, and all rates and charges for all services or privileges within the zone shall be fair and reasonable. A rate or charge (fee) may be imposed on zone participants to recover costs incurred by or on behalf of the grantee for the performance of the grantee function. Such a rate or charge must be directly related to the service provided by the grantee (for which the fee recovers some or all costs incurred) to the zone participants. Rates or charges may incorporate a reasonable return on investment. Rates or charges may not be tied to the level of benefits derived by zone participants. Other than the uniform rates and charges assessed by, or on behalf of, the grantee, zone participants shall not be required (either directly or indirectly) to utilize or pay for a particular provider's zone-related products or services.
              (b) Delayed compliance date. The compliance date for the requirements of paragraph (a) of this section shall be February 28, 2014.

              § 400.43
              Uniform treatment.
              Pursuant to Section 14 of the FTZ Act (19 U.S.C. 81n), a grantee shall afford to all who may apply to make use of or participate in the zone uniform treatment under like conditions. Treatment of zone participants within a zone (including application of rates and charges) shall not vary depending on whether a zone participant has procured any zone-related product or service or engaged a particular supplier to provide any such product or service.
              (a) Agreements to be made in writing. Any agreement or contract related to one or more grantee function(s) and involving a zone participant (e.g., agreements with property owners and agreements with zone operators) must be in writing.
              (b) Evaluation of proposals. A grantee (or person undertaking a zone-related function(s) on behalf of a grantee, where applicable) shall apply uniform treatment in the evaluation of proposals from zone participants. Uniform treatment does not require acceptance of all proposals by zone participants, but the bases for a grantee's decision on a particular proposal must be consistent with the uniform treatment requirement.
              (c) Justification for differing treatment. Given the requirement for uniform treatment under like conditions, for any instance of different treatment of different zone participants, a grantee (or person undertaking a zone-related function(s) on behalf of a grantee, where applicable) must be able to provide upon request by the Executive Secretary a documented justification for any difference in treatment.
              (d) Avoidance of non-uniform treatment. To avoid non-uniform treatment of zone participants, persons (as defined in § 400.2(l)) within key categories set out in paragraph (d)(2) of this section shall not undertake any of the key functions set out in paragraph (d)(1) of this section (except in specific circumstances where the Board has authorized a waiver pursuant to paragraph (f) of this section).
              (1) Key functions are:
              (i) Taking action on behalf of a grantee, or making recommendations to a grantee, regarding the disposition of proposals or requests by zone participants pertaining to FTZ authority or activity (including activation by CBP);
              (ii) Approving, or being a party to, a zone participant's agreement with the grantee (or person acting on behalf of the grantee) pertaining to FTZ authority or activity (including activation by CBP); or
              (iii) Overseeing zone participants' operations on behalf of a grantee.
              (2) Key categories of persons are:
              (i) A person that currently engages in, or which has during the preceding twelve months engaged in, offering/providing a zone-related product/service to or representing a zone participant in the grantee's zone;
              (ii) Any person that stands to gain from a person's offer/provision of a zone-related product/service to or representation of a zone participant in the zone; or

              (iii) Any person related, as defined in paragraph (e) of this section, to the person identified in paragraphs (d)(2)(i) and (ii) of this section.

              (e) Definition of related persons. For purposes of this section, persons that are related include:
              (1) Members of a family or members of a household. The term members of a family means spouses, parents, grandparents, children, grandchildren, siblings (including half-siblings and step-siblings), aunts, uncles, nieces, nephews, and first cousins, as well as the parents, children, and siblings of a spouse, and the spouse of a sibling, child or parent;
              (2) Organizations that are wholly or majority-owned by members of the same family or members of the same household;
              (3) An officer or director of an organization and that organization;
              (4) Partners;
              (5) Employers and their employees;
              (6) An organization and any person directly or indirectly owning, controlling, or holding with power to vote, 20 percent or more of the outstanding voting stock or shares of that organization;
              (7) Any person that controls any other person and that other person (the term control means the power, direct or indirect, whether or not exercised, through any means, to determine, direct, or decide important matters affecting an entity); or
              (8) Any two or more persons who directly control, are controlled by, or are under common control with, any person (see definition of control in paragraph (e)(7) of this section).
              (f) Waivers. The grantee or other person subject to paragraph (d) of this section may submit an application requesting that the Board issue a waiver exempting from the prohibition of that paragraph a person's undertaking a specific key function(s) listed in paragraph (d)(1) of this section. Using the format developed by the Executive Secretary, an application for a waiver shall explain in detail how the person falls within a key category(ies) set out in paragraph (d)(2) of this section, and the specific key function(s) listed in paragraph (d)(1) of this section that would be undertaken by the person. After receipt of an application requesting a waiver, the Executive Secretary may solicit additional information or clarification, as necessary, including from the person submitting the application and from the grantee. Based on the information presented in the application, the Executive Secretary shall make a recommendation to the Board. A waiver shall be authorized only by an affirmative vote by the Board. If the Board votes not to authorize a waiver or to discontinue a waiver, the applicant shall be notified in writing and allowed 30 days to present evidence in response. In deciding whether to grant a waiver, the Board shall determine whether there is an unacceptable risk that the waiver would result in non-uniform treatment being afforded by the person undertaking a key function(s) listed in paragraph (d)(1) of this section. In its assessment, the Board shall consider the specific circumstances presented, including the nature and extent of the person's involvement in undertaking a key function(s) listed in paragraph (d)(1) of this section. In general, the more significant the requester's involvement or interest in the undertaking of a key function(s) listed in paragraph (d)(1) of this section or activity(ies) identified in paragraph (d)(2)(i) of this section, the greater the risk will be that non-uniform treatment will be afforded and, thus, the less likely it will be that a waiver will be granted. The Board may attach to individual waivers such conditions or limitations (including, for example, the length of time a waiver is to be effective) as it deems necessary.
              (g) Requests for determinations. A grantee or other party may request a determination by the Executive Secretary regarding the consistency of an actual or potential arrangement with the requirements of this section.
              (h) Identification of person undertaking function(s) on behalf of grantee. The Board, the Commerce Department's Assistant Secretary for Enforcement and Compliance, or the Executive Secretary, may require a zone grantee to identify any person undertaking a zone-related function(s) on behalf of the grantee.
              (i) Delayed compliance date. If, as of April 30, 2012, existing business arrangements do not comply with the requirements of paragraphs (a) and (d) of this section, such existing arrangements shall be terminated or brought into compliance no later than February 28, 2014.

                Effective Date Note:
                At 77 FR 12139, Feb. 28, 2012, § 400.43 was added. Paragraph (f) of this section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.

              § 400.44
              Zone schedule.
              (a) In general. The zone grantee shall submit to the Executive Secretary (in both paper and electronic copies) a zone schedule which sets forth the elements required in this section. No element of a zone schedule (including any amendment to the zone schedule) may be considered to be in effect until such submission has occurred. If warranted, the Board may subsequently amend the requirements of this section by Board Order.
              (b) Each zone schedule shall include:
              (1) A title page, which shall include the name of the zone grantee and the date of the current schedule;
              (2) A table of contents;
              (3) Internal rules/regulations and policies for the zone;
              (4) All rates or charges assessed by or on behalf of the grantee;
              (5) Information regarding any operator which has an agreement with the grantee to offer services to the public, including the operator's rates or charges for all zone-specific services offered; and
              (6) An appendix with definitions of any FTZ-related terms used in the zone schedule (as needed).
              (c) The Executive Secretary may review the zone schedule (or any amendment to the zone schedule) to determine whether it contains sufficient information for zone participants concerning the operation of the zone and the grantee's rates and charges as provided in paragraphs (b)(3) and (b)(4) of this section. If the Executive Secretary determines that the zone schedule (or amendment) does not satisfy these requirements, the Executive Secretary shall notify the zone grantee. The Executive Secretary may also conduct a review under 400.45(b).
              (d) Amendments to the zone schedule shall be prepared and submitted in the manner described in paragraph (a) of this section, and listed in the concluding section of the zone schedule, with dates. No rates/charges or other provisions required for the zone schedule may be applied by, or on behalf of, the grantee unless those specific rates/charges or provisions are included in the most recent zone schedule submitted to the Board and made available to the public in compliance with paragraph (e) of this section.
              (e) Availability of zone schedule. A complete copy of the zone schedule shall be freely available for public inspection at the offices of the zone grantee and any operator offering FTZ services to the user community. The Board shall make copies of zone schedules available on its Web site.
              (f) Delayed compliance date. The compliance date for the requirements of this section shall be February 28, 2014.

              § 400.45
              Complaints related to public utility and uniform treatment.
              (a) In general. A zone participant may submit to the Executive Secretary a complaint regarding conditions or treatment that the complaining party believes are inconsistent with the public utility and uniform treatment requirements of the FTZ Act and these regulations. Complaints may be made on a confidential basis, if necessary. Grantees (and persons undertaking zone-related functions on behalf of grantees, where applicable) shall not enter into or enforce provisions of agreements or contracts with zone participants that would require zone participants to disclose to other parties, including the grantee (or person undertaking a zone-related function(s) on behalf of a grantee, where applicable), any confidential communication with the Board under this section.
              (b) Objections to rates and charges. A zone participant showing good cause may object to any rate or charge related to the zone on the basis that it is not fair and reasonable by submitting to the Executive Secretary a complaint in writing with supporting information. If necessary, such a complaint may be made on a confidential basis pursuant to § 400.45(a). The Executive Secretary shall review the complaint and issue a report and decision, which shall be final unless appealed to the Board within 30 days. The Board or the Executive Secretary may otherwise initiate a review for cause. The primary factor considered in reviewing fairness and reasonableness is the cost of the specific services rendered. Where those costs incorporate charges to the grantee by one or more parties undertaking functions on behalf of the grantee, the Board may consider the costs incurred by those parties (using best estimates, as necessary). The Board will also give consideration to any extra costs incurred relative to non-zone operations, including return on investment and reasonable out-of-pocket expenses.

              § 400.46
              Grantee liability.
              (a) Exemption from liability. A grant of authority, per se, shall not be construed to make the zone grantee liable for violations by zone participants. The role of the zone grantee under the FTZ Act and the Board's regulations is to provide general management of the zone to ensure that the reasonable needs of the business community are served. It would not be in the public interest to discourage public entities from zone sponsorship because of concern about liability without fault.
              (b) Exception to exemption from liability. A grantee could create liability for itself that otherwise would not exist if the grantee undertakes detailed operational oversight of or direction to zone participants. Examples of detailed operational oversight or direction include review of an operator's inventory-control or record-keeping systems, specifying requirements for such a system to be used by an operator, and review of CBP documentation related to an operator's zone receipts and shipments.

              § 400.47
              Retail trade.
              (a) In general. Retail trade is prohibited in activated areas of zones, except that 1) sales or other commercial activity involving domestic, duty-paid, and duty-free goods may be conducted within an activated area of a zone under a permit issued by the zone grantee and approved by the Board, and 2) no permits shall be necessary for sales involving domestic, duty-paid or duty-free food and non-alcoholic beverage products sold within the zone or subzone for consumption on premises by individuals working therein. The Executive Secretary shall determine whether an activity is retail trade, subject to review by the Board when the zone grantee requests such a review with a good cause. Determinations on whether an activity constitutes retail trade shall be based on precedent established through prior rulings by CBP, as appropriate. Such prior rulings shall remain effective unless a determination is issued to modify their effect (after a notice-and-comment process, as appropriate). Determinations made by the Executive Secretary pursuant to this section shall be made available to the public via the Board's Web site.
              (b) Procedure. Requests for Board approval under this section shall be submitted in letter form, with supporting documentation, to the Executive Secretary, who is authorized to act for the Board in these cases, after consultation with CBP as necessary.
              (c) Criteria. In evaluating requests under this section, the Executive Secretary and CBP shall consider factors that may include:
              (1) Whether any public benefits would result from approval; and
              (2) The economic effect such activity would have on the retail trade outside the zone in the port of entry area.

              § 400.48
              Zone-restricted merchandise.
              (a) In general. Merchandise in zone-restricted status (19 CFR 146.44) may be entered into the customs territory of the United States only when the Board determines that the entry would be in the public interest. Such entries are subject to the customs laws and the payment of applicable duties and excise taxes (19 U.S.C. 81c(a), 4th proviso).
              (b) Criteria. In making the determination described in paragraph (a) of this section, the Board shall consider:
              (1) The intent of the parties;
              (2) Why the merchandise cannot be exported;

              (3) The public benefit involved in allowing entry of the merchandise; and

              (4) The recommendation of CBP.
              (c) Procedure. (1) A request for authority to enter “zone-restricted” merchandise into U.S. customs territory shall be made to the Executive Secretary in letter form by the zone grantee or by the operator responsible for the merchandise (with copy to the grantee), with supporting information and documentation.
              (2) The Executive Secretary shall investigate the request and prepare a report for the Board.
              (3) The Executive Secretary may act for the Board under this section with respect to requests that involve merchandise valued at 500,000 dollars or less and that are accompanied by a letter of concurrence from CBP.

              § 400.49
              Monitoring and reviews of zone operations and activity.
              (a) In general. Ongoing zone operation(s) and activity may be reviewed by the Board or the Executive Secretary at any time to determine whether they are in the public interest and in compliance and conformity with the Act and regulations, as well as authority approved by the Board. Reviews involving production activity may also be conducted to determine whether there are changed circumstances that raise questions as to whether the activity is detrimental to the public interest, taking into account the factors enumerated in § 400.27. The Board may prescribe special monitoring requirements in its decisions when appropriate.
              (b) Conduct of reviews. Reviews may be initiated by the Board, the Commerce Department's Assistant Secretary for Enforcement and Compliance, or the Executive Secretary; or, they may be undertaken in response to requests from parties directly affected by the activity in question showing good cause based on the provision of information that is probative and substantial in addressing the matter in issue. After initiation of a review, any affected party shall provide in a timely manner any information requested as part of the conduct of the review. If a party fails to timely provide information requested as part of such a review, a presumption unfavorable to that party may be made.
              (c) Prohibition or restriction. Upon review, if a finding is made that zone activity is no longer in the public interest (taking into account the factors enumerated in § 400.27 where production activity is involved), the Board or the Commerce Department's Assistant Secretary for Enforcement and Compliance may prohibit or restrict the activity in question. Such prohibitions or restrictions may be put in place after a preliminary review (e.g., prior to potential steps such as a public comment period) if circumstances warrant such action until further review can be completed. The procedures of § 400.34(a)(5)(iv)(A) shall be followed to notify the grantee of the affected zone and allow for a response prior to the final imposition of a prohibition or restriction. The appropriateness of a delayed effective date shall be considered.

            Subpart F—Records, Reports, Notice, Hearings and Information

              § 400.51
              Records and reports.
              (a) Records and forms. Zone records and forms shall be prepared and maintained in accordance with the requirements of CBP and the Board, consistent with documents issued by the Board specific to the zone in question, and the zone grantee shall retain copies of applications/requests it submits to the Board in electronic or paper format.
              (b) Maps and drawings. Zone grantees or operators, and CBP, shall keep current layout drawings of approved sites as described in § 400.21(d)(5), showing activated portions, and a file showing required activation approvals. The zone grantee shall furnish necessary maps to CBP.
              (c) Annual reports. (1) Each zone grantee shall submit a complete and accurate annual report to the Board within 90 days after the end of the reporting period. Each zone operator shall submit a complete and accurate annual report to the zone grantee in a timeframe that will enable the grantee's timely submission of a complete and accurate annual report to the Board. A zone grantee may request an extension of the deadline for its report, as warranted. The Executive Secretary may authorize such extensions, with decisions on such authorizations taking into account both the circumstances presented and the importance of the Board submitting its annual report to Congress in a timely manner. Annual reports must be submitted in accordance with any instructions, guidelines, forms and related documents specifying place, manner and format(s) prescribed by the Executive Secretary. In the event that a grantee has not received all necessary annual report information from an operator in a timely manner, the grantee may submit its annual report on time and note the absence of the missing information.
              (2) The Board shall submit an annual report to Congress.

              § 400.52
              Notices and hearings.
              (a) In general. The Executive Secretary shall publish notice in the Federal Register inviting public comment on applications and notifications for Board action (see, §§ 400.32 and 400.37(b)), and with regard to other reviews or matters considered under this part when public comment is necessary. An applicant under §§ 400.21, 400.24(b) and 400.25 shall give appropriate notice of its proposal in a local, general-circulation newspaper at least 15 days prior to the close of the public comment period for the proposal in question. The Board, the Secretary of Commerce, the Commerce Department's Assistant Secretary for Enforcement and Compliance, or the Executive Secretary, as appropriate, may schedule and/or hold hearings during any proceedings or reviews conducted under this part whenever necessary or appropriate.
              (b) Requests for hearings. (1) A party who may be materially affected by the zone activity in question and who shows good cause may request a hearing during a proceeding or review.
              (2) The request must be made within 30 days of the beginning of the period for public comment (see § 400.32) and must be accompanied by information establishing the need for the hearing and the basis for the requesting party's interest in the matter.
              (3) A determination as to the need for the hearing shall be made by the Commerce Department's Assistant Secretary for Enforcement and Compliance within 15 days after the receipt of such a request.
              (c) Procedure for public hearings. The Board shall publish notice in the Federal Register of the date, time and location of a public hearing. All participants shall have the opportunity to make a presentation. Applicants and their witnesses shall ordinarily appear first. The presiding officer may adopt time limits for individual presentations.

              § 400.53
              Official records; public access.
              (a) Content. The Executive Secretary shall maintain at the location stated in § 400.54(e) an official record of each proceeding within the Board's jurisdiction. The Executive Secretary shall include in the official record all timely evidence, factual information, and written argument, and other material developed by, presented to, or obtained by the Board in connection with the proceeding. While there is no requirement that a verbatim record shall be kept of public hearings, the proceedings of such hearings shall ordinarily be recorded and transcribed when significant opposition to a proposal is involved.
              (b) Opening and closing of official record. The official record opens on the date the Executive Secretary dockets an application or receives a request or notification that satisfies the applicable requirements of this part and closes on the date of the final determination in the proceeding or review, as applicable.
              (c) Protection of the official record. Unless otherwise ordered in a particular case by the Executive Secretary, the official record shall not be removed from the Department of Commerce. A certified copy of the record shall be made available to any court before which any aspect of a proceeding is under review, with appropriate safeguards to prevent disclosure of business proprietary or privileged information.

              § 400.54
              Information.
              (a) Request for information. The Executive Secretary, on behalf of the Board, may request submission of any information, including business proprietary information, and written argument necessary or appropriate to the proceeding.
              (b) Public information. Except as provided in paragraph (c) of this section, the Board shall consider all information submitted in a proceeding to be public information, and if the person submitting the information does not agree to its public disclosure, the Board shall return the information and not consider it in the proceeding. Information to meet the basic requirements of §§ 400.21-400.25 is inherently public information to allow meaningful public evaluation pursuant to those sections and § 400.32.
              (c) Business proprietary information. Persons submitting business proprietary information and requesting that it be protected from public disclosure shall mark the cover page, as well as the top of each page on which such information appears, “business proprietary.” Any business proprietary document submitted for a proceeding other than pursuant to § 400.45 shall contain brackets at the beginning and end of each specific piece of business proprietary information contained in the submission. Any such business proprietary submission shall also be accompanied by a public version that contains all of the document's contents except the information bracketed in the business proprietary version, with the cover page and the top of each additional page marked “public version.” Any information for which business proprietary treatment is claimed must be ranged (i.e., presented as a number or upper and lower limits that approximate the specific business proprietary figure) or summarized in the public version. If a submitting party maintains that certain information is not susceptible to summarization or ranging, the public version must provide a full explanation specific to each such piece of information regarding why summarization or ranging is not feasible.
              (d) Disclosure of information. Disclosure of public information shall be governed by 15 CFR part 4.
              (e) Availability of information. Public information in the official record shall be available at the Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce Building, 1401 Constitution Avenue NW., Washington, DC 20230 and may also be available electronically over the Internet via http://www.trade.gov/ftz (or a successor Internet address).

            Subpart G—Penalties and Appeals to the Board

              § 400.61
              Revocation of authority.
              (a) In general. As provided in this section, the Board can revoke in whole or in part authority for a zone or subzone whenever it determines that the zone grantee has violated, repeatedly and willfully, the provisions of the Act.
              (b) Procedure. When the Board has reason to believe that the conditions for revocation, as described in paragraph (a) of this section, are met, the Board shall:
              (1) Notify the grantee of the zone in question in writing stating the nature of the alleged violations, provide the grantee an opportunity to request a hearing on the proposed revocation, and notify any known operators in the zone;
              (2) Conduct a hearing, if requested or otherwise if appropriate;
              (3) Make a determination on the record of the proceeding not earlier than four months after providing notice to the zone grantee under paragraph (b)(1) of this section; and

              (4) If the Board's determination is affirmative, publish a notice of revocation of authority, in whole or in part, in the Federal Register.

              (c) As provided in section 18 of the Act (19 U.S.C. 81r(c)), the grantee of the zone or subzone in question may appeal an order of the Board revoking authority.

              § 400.62
              Fines, penalties and instructions to suspend activated status.
              (a) In general. Fines are authorized solely for specific violations of the FTZ Act or the Board's regulations as detailed in §§ 400.62(b) and (c). Each specific violation is subject to a fine of not more than 1,000 dollars (as adjusted for inflation pursuant to § 400.62(j)), with each day during which a violation continues constituting a separate offense subject to imposition of such a fine (FTZ Act, section 19; 19 U.S.C. 81s). This section also establishes the party subject to the fine which, depending on the type of violation, would be the zone operator, grantee, or a person undertaking one or more zone-related functions on behalf of the grantee, where applicable. In certain circumstances, the Board or the Assistant Secretary for Enforcement and Compliance could instruct CBP to suspend the activated status of all or part of a zone or subzone. Violations of the FTZ Act or the Board's regulations (including the sections pertaining to uniform treatment and submission of annual reports), failure to pay fines, or failure to comply with an order prohibiting or restricting activity may also result in the Executive Secretary's suspending the processing of any requests to the Board and staff relating to the zone or subzone in question. In circumstances where non-compliance pertains to only a subset of the operations in a zone, suspensions of activated status and suspensions of the processing of requests shall be targeted to the specific non-compliant operation(s).
              (b) Violations involving requirement to submit annual report. A grantee's failure to submit a complete and accurate annual report pursuant to section 16 of the FTZ Act (19 U.S.C. 81p(b)) and § 400.51(c)(1) of these regulations constitutes a violation subject to a fine, with each day of continued failure to submit the report constituting a separate offense subject to a fine of not more than 1,000 dollars (as adjusted for inflation pursuant to § 400.62(j)). Further, each day during which a zone operator fails to submit to the zone's grantee the information required for the grantee's timely submission of a complete and accurate annual report to the Board shall constitute a separate offense subject to a fine of not more than 1,000 dollars (as adjusted for inflation pursuant to § 400.62(j)). Consistent with § 400.46, if the grantee submits a timely report to the Board identifying any operator that has not provided complete and timely information in response to a timely request(s) by the grantee, the grantee shall not be subject to a fine-assessment action stemming from the operator's failure to timely provide its report.
              (c) Violations involving uniform treatment. Failure by a grantee or a person undertaking one or more zone-related functions on behalf of the grantee to comply with the uniform treatment requirement of section 14 of the FTZ Act (19 U.S.C. 81n) or the provisions of § 400.43 of these regulations constitutes a violation, with each day of continued violation constituting a separate offense subject to a fine of not more than 1,000 dollars (as adjusted for inflation pursuant to § 400.62(j)).
              (d) Procedures for determination of violations and imposition of fines. When the Board or the Executive Secretary has reason to believe that a violation pursuant to §§ 400.62(b) and (c) has occurred and that the violation warrants the imposition of a fine (such as a situation where a party has previously been notified of action required for compliance and has failed to take such action within a reasonable period of time), the following steps shall be taken:
              (1) The Executive Secretary shall notify the party or parties responsible for the violation and the zone grantee in writing stating the nature of the alleged violation, and provide the party(ies) a specified period (no less than 30 days, with consideration given to any requests for an extension, which shall not be unreasonably withheld) to respond in writing;
              (2) The Executive Secretary shall conduct a hearing, if requested or otherwise if appropriate. Parties may be represented by counsel at the hearing, and any evidence and testimony of witnesses in the proceeding shall be presented. A transcript of the hearing shall be produced and a copy shall be made available to the parties;

              (3) The Executive Secretary shall make a recommendation on the record of the proceeding not earlier than the later of 15 days after the deadline for the party(ies)'s response under paragraph (d)(1) of this section or 15 days after the date of a hearing held under paragraph (d)(2) of this section. If the recommendation is for an affirmative determination of a violation, the Executive Secretary shall also recommend the amount of the fine to be imposed; and

              (4) The Board shall make a determination regarding the finding of a violation and imposition of a fine based on the Executive Secretary's recommendation under paragraph (d)(3) of this section. For related actions where the total sum of recommended fines is no more than 10,000 dollars (50,000 dollars in the case of violations pursuant to paragraph (b) of this section), the Board delegates to the Executive Secretary the authority to make a determination.
              (e) Mitigation—(1) In general. The Commerce Department's Assistant Secretary for Enforcement and Compliance may approve the mitigation (reduction or elimination) of an imposed fine based on specific evidence presented by the affected party. Authority is delegated to the Executive Secretary to mitigate a fine where the total sum of fines imposed on a party for related actions does not exceed 10,000 dollars (50,000 dollars in the case of violations pursuant to paragraph (b) of this section). Mitigating evidence and argument pertaining to mitigating factors must be submitted within 30 days of the determination described in paragraph (d)(4) of this section, subject to requests for extension for cause, the granting of which shall not be unreasonably withheld.
              (2) Mitigating factors. Factors to be taken into account in evaluating potential mitigation include:
              (i) A good record of a violator over the preceding five years with regard to the type of violation(s) at issue;
              (ii) The violation was due to the action of another party despite violator's adherence to the requirements of the FTZ Act and the Board's regulations;
              (iii) Immediate remedial action by the violator to avoid future violations;
              (iv) A violator's cooperation with the Board (beyond the degree of cooperation expected from a person under investigation for a violation) in ascertaining the facts establishing the violation;
              (v) A violation's resulting from a clerical error or similar unintentional negligence; and
              (vi) Such other factors as the Board, or the Executive Secretary, deems appropriate to consider in the specific circumstances presented.
              (f) Assessment of fines. After evaluating submitted mitigating evidence and argument, where applicable, the Commerce Department's Assistant Secretary for Enforcement and Compliance may assess an imposed fine (in whole or in part). Authority is delegated to the Executive Secretary to assess a fine where the total sum of the imposed fines for related actions does not exceed 10,000 dollars (50,000 dollars in the case of violations pursuant to paragraph (b) of this section).
              (g) Time for payment. Full payment of an assessed fine must be made within 30 days of the date of the assessment or within such longer period of time as may be specified. Payment shall be made in the manner specified by the Commerce Department's Assistant Secretary for Enforcement and Compliance or the Executive Secretary.
              (h) Procedures for instruction to suspend activated status. If a fine assessed pursuant to §§ 400.62(d) through (g) has not been paid within 90 days of the specified deadline for payment, if there is a repeated and willful failure to comply with a requirement of the FTZ Act or the Board's regulations, or if there is a repeated and willful failure to comply with a prohibition or restriction on activity imposed by an order of the Board or an order of the Commerce Department's Assistant Secretary for Enforcement and Compliance pursuant to § 400.49(c), the Board or the Commerce Department's Assistant Secretary for Enforcement and Compliance may instruct CBP to suspend the activated status of the zone operation(s) in question (or, if appropriate, the suspension may be limited to a particular activity of a zone operator, such as suspension of the privilege to admit merchandise), and the suspension shall remain in place until the failure to pay a fine, failure to comply with a requirement of the FTZ Act or the Board's regulations, or failure to comply with an order's prohibition or restriction on activity has been remedied. In determining whether to instruct CBP to suspend the activated status of a zone operation in the circumstances noted, the following steps shall be taken:
              (1) Notification of party(ies). The Executive Secretary shall notify the responsible party(ies) in writing stating the nature of the failure to timely pay a fine, to comply with a requirement of the FTZ Act or the Board's regulations or to comply with a prohibition or restriction on activity imposed by an order of the Board or an order of the Commerce Department's Assistant Secretary for Enforcement and Compliance. If the grantee is not one of the responsible parties notified, the Executive Secretary shall also provide a copy of the notification to the grantee. The responsible party(ies) shall be provided a specified period (of not less than 15 days) to respond in writing to the notification;
              (2) Hearing. If the notified responsible party(ies) or the zone's grantee requests a hearing (or if a hearing is determined to be warranted by the Board, the Commerce Department's Assistant Secretary for Enforcement and Compliance or the Executive Secretary), it shall be held before the Executive Secretary (or a member of the Board staff designated by the Executive Secretary) within 30 days following the request for a hearing (or the determination by the Board, the Commerce Department's Assistant Secretary for Enforcement and Compliance or the Executive Secretary). Parties may be represented by counsel at the hearing, and any evidence and testimony of witnesses in the proceeding shall be presented. A transcript of the hearing shall be produced and a copy shall be made available to the parties;
              (3) The Executive Secretary shall make a recommendation on the record of the proceeding not earlier than 15 days after the later of:
              (i) The deadline for the party(ies)'s response under paragraph (h)(1) of this section; or
              (ii) The date of a hearing held under paragraph (h)(2) of this section; and
              (4) The Board or the Commerce Department's Assistant Secretary for Enforcement and Compliance shall determine whether to instruct CBP to suspend the activated status of the zone operation(s) in question. If the determination is affirmative, the Executive Secretary shall convey the instruction to CBP, with due consideration to allow for the transfer of any affected merchandise from the applicable zone site(s).
              (i) Enforcement of assessment. Upon any failure to pay an assessed fine, the Board may request the U.S. Department of Justice to recover the amount assessed in any appropriate district court of the United States or may commence any other lawful action.
              (j) Adjustment for inflation. The maximum dollar value of a fine for a violation of the FTZ Act or the Board's regulations is subject to adjustment for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134).

              § 400.63
              Appeals to the Board of decisions of the Assistant Secretary for Enforcement and Compliance and the Executive Secretary.
              (a) In general. Decisions of the Commerce Department's Assistant Secretary for Enforcement and Compliance and the Executive Secretary made pursuant to this part may be appealed to the Board by adversely affected parties showing good cause.
              (b) Procedures. Parties appealing a decision under paragraph (a) of this section shall submit a request for review to the Board in writing, stating the basis for the request, and attaching a copy of the decision in question, as well as supporting information and documentation. After a review, the Board shall notify the appealing party of its decision in writing.

          PARTS 401-499 [RESERVED]

        15 CFR Ch. VII (1-1-20 Edition)
        Bureau of Industry and Security, Commerce

            CHAPTER VII—BUREAU OF INDUSTRY AND SECURITY, DEPARTMENT OF COMMERCE

            Editorial Note:
            Nomenclature changes to chapter VII appear at 67 FR 20632, Apr. 26, 2002 and 69 FR 60546 and 60547, Oct. 12, 2004.

            SUBCHAPTER A—NATIONAL SECURITY INDUSTRIAL BASE REGULATIONS

          Part
          Page

            700
            Defense priorities and allocations system
            91
            701
            Reporting of offsets agreements in sales of weapon systems or defense-related items to foreign countries or foreign firms
            119
            702
            Industrial base surveys—Data collections
            124
            703-704
            [Reserved]
            705
            Effect of imported articles on the national security
            127
            706-709
            [Reserved]

            SUBCHAPTER B—CHEMICAL WEAPONS CONVENTION REGULATIONS

            710
            General information and overview of the Chemical Weapons Convention Regulations (CWCR)
            152
            711
            General information regarding declaration, reporting, and advance notification requirements, and the electronic filing of declarations and reports
            160
            712
            Activities involving Schedule 1 chemicals
            163
            713
            Activities involving Schedule 2 chemicals
            172
            714
            Activities involving Schedule 3 chemicals
            182
            715
            Activities involving Unscheduled Discrete Organic Chemicals (UDOCs)
            189
            716
            Initial and routine inspections of declared facilities
            195
            717
            CWC clarification procedures (consultations and challenge inspections)
            205
            718
            Confidential business information
            207
            719
            Enforcement
            210
            720
            Denial of export privileges
            219
            721
            Inspection of records and recordkeeping
            221
            722
            Interpretations [Reserved]

            723-729
            [Reserved]

            SUBCHAPTER C—EXPORT ADMINISTRATION REGULATIONS

            730
            General information
            224
            732
            Steps for using the EAR
            233
            734
            Scope of the Export Administration regulations
            247
            736
            General prohibitions
            261
            738
            Commerce Control List overview and the country chart
            268
            740
            License exceptions
            280
            742
            Control policy—CCL based controls
            341
            743
            Special reporting and notification
            382
            744
            Control policy: End-user and end-use based
            387
            745
            Chemical Weapons Convention requirements
            573
            746
            Embargoes and other special controls
            578
            747
            [Reserved]
            748
            Applications (classification, advisory, and license) and documentation
            591
            750
            Application processing, issuance, and denial
            632
            752
            [Reserved]
            754
            Short supply controls
            643
            756
            Appeals
            649
            758
            Export clearance requirements
            650
            760
            Restrictive trade practices or boycotts
            659
            762
            Recordkeeping
            725
            764
            Enforcement and protective measures
            730
            766
            Administrative enforcement proceedings
            743
            768
            Foreign availability determination procedures and criteria
            770
            770
            Interpretations
            779
            772
            Definitions of terms
            785
            774
            The Commerce Control List
            817
            775-780
            [Reserved]

            SUBCHAPTER D—ADDITIONAL PROTOCOL REGULATIONS

            781
            General information and overview of the additional protocol regulations (APR)
            1100
            782
            General information regarding reporting requirements and procedures
            1104
            783
            Civil nuclear fuel cycle-related activities not involving nuclear materials
            1106
            784
            Complementary access
            1126
            785
            Enforcement
            1133
            786
            Records and recordkeeping
            1140
            787-799
            [Reserved]

          SUBCHAPTER A—NATIONAL SECURITY INDUSTRIAL BASE REGULATIONS

            Pt. 700
            PART 700—DEFENSE PRIORITIES AND ALLOCATIONS SYSTEM

                Subpart A—Purpose
                Sec.
                700.1
                Purpose of this part.

                Subpart B—Overview
                700.2
                Introduction.
                700.3
                Priority ratings and rated orders.
                700.4-700.7
                [Reserved]

                Subpart C—Definitions
                700.8
                Definitions.

                Subpart D—Industrial Priorities
                700.10
                Authority.
                700.11
                Priority ratings.
                700.12
                Elements of a rated order.
                700.13
                Acceptance and rejection of rated orders.
                700.14
                Preferential scheduling.
                700.15
                Extension of priority ratings.
                700.16
                Changes or cancellations of priority ratings and rated orders.
                700.17
                Use of rated orders.
                700.18
                Limitations on placing rated orders.

                Subpart E—Industrial Priorities for Energy Programs
                700.20
                Use of priority ratings.
                700.21
                Application for priority rating authority.

                Subpart F—Allocation Actions
                700.30
                Policy.
                700.31
                General procedures.
                700.32
                Controlling the general distribution of a material in the civilian market.
                700.33
                Types of allocations orders.
                700.34
                Elements of an allocation order.
                700.35
                Mandatory acceptance of an allocation order.
                700.36
                Changes or cancellations of allocation orders.

                Subpart G [Reserved]

                Subpart H—Special Priorities Assistance
                700.50
                General provisions.
                700.51
                Requests for priority rating authority.
                700.52
                Examples of assistance.
                700.53
                Criteria for assistance.
                700.54
                Instances where assistance may not be provided.
                700.55
                Homeland security, emergency preparedness, and critical infrastructure protection and restoration assistance programs within the United States.
                700.56
                Military assistance programs with Canada.
                700.57
                Military assistance programs with other nations and international organizations.
                700.58
                Critical infrastructure assistance programs to foreign nations and international organizations.

                Subpart I—Official Actions
                700.60
                General provisions.
                700.61
                Rating authorizations.
                700.62
                Directives.
                700.63
                Letters of understanding.

                Subpart J—Compliance
                700.70
                General provisions.
                700.71
                Audits and investigations.
                700.72
                Compulsory process.
                700.73
                Notification of failure to comply.
                700.74
                Violations, penalties, and remedies.
                700.75
                Compliance conflicts.

                Subpart K—Adjustments, Exceptions, and Appeals
                700.80
                Adjustments or exceptions.
                700.81
                Appeals.

                Subpart L—Miscellaneous Provisions
                700.90
                Protection against claims.
                700.91
                Records and reports.
                700.92
                Applicability of this part and official actions.
                700.93
                Communications.
                Schedule I to Part 700—Approved Programs and Delegate Agencies
                Appendix I to Part 700—Form BIS-999-Request for Special Priorities Assistance

              Authority:
              50 U.S.C. 4501 et seq.; 42 U.S.C. 5195, et seq.; 50 U.S.C. 3816; 10 U.S.C. 2538; 50 U.S.C. 82; E.O. 12656, 53 FR 226, 3 CFR, 1988 Comp., p. 585; E.O. 12742, 56 FR 1079, 3 CFR, 1991 Comp., p. 309; E.O. 13603, 77 FR 16651, 3 CFR, 2012 Comp., p. 225.

              Source:
              49 FR 30414, July 30, 1984, unless otherwise noted. Redesignated at 54 FR 601, Jan. 9, 1989.

              Subpart A—Purpose

                § 700.1
                Purpose of this part.

                This part implements the Defense Priorities and Allocations System (DPAS) that is administered by the Department of Commerce, Bureau of Industry and Security. The DPAS implements the priorities and allocations authority of the Defense Production Act, including use of that authority to support emergency preparedness activities pursuant to Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.), and the priorities authority of the Selective Service Act and related statutes, all with respect to industrial resources. The DPAS establishes procedures for the placement, acceptance, and performance of priority rated contracts and orders and for the allocation of materials, services, and facilities. The guidance and procedures in this part are generally consistent with the guidance and procedures provided in other regulations issued under Executive Order 13603 authority.
                [79 FR 47563, Aug. 14, 2014]

              Subpart B—Overview

                § 700.2
                Introduction.
                (a) Certain national defense and energy programs (including military, emergency preparedness, homeland security, and critical infrastructure protection and restoration activities) are approved for priorities and allocations support. A complete list of currently approved programs is provided at schedule I to this part.
                (b) The Department of Commerce administers the DPAS and may exercise priorities and allocations authority to ensure the timely delivery of industrial items to meet approved program requirements.
                (c) The Department of Commerce has delegated authority to place priority ratings on contracts or orders necessary or appropriate to promote the national defense to certain government agencies that issue such contracts or orders. Such delegations include authority to authorize recipients of rated orders to place ratings on contracts or orders to contractors, subcontractors, and suppliers. Schedule I to this part includes a list of agencies to which the Department of Commerce has delegated authority.
                [79 FR 47563, Aug. 14, 2014]

                § 700.3
                Priority ratings and rated orders.
                (a) Rated orders are identified by a priority rating and a program identification symbol. Rated orders take precedence over all unrated orders as necessary to meet required delivery dates. Among rated orders, DX rated orders take precedence over DO rated orders. Program identification symbols indicate which approved program is attributed to the rated order.
                (b) Persons receiving rated orders must give them preferential treatment as required by this part.
                (c) All rated orders must be scheduled to the extent possible to ensure delivery by the required delivery date.
                (d) Persons who receive rated orders must in turn place rated orders with their suppliers for the items they need to fill the orders. This provision ensures that suppliers will give priority treatment to rated orders from contractor to subcontractor to suppliers throughout the procurement chain.
                (e) Persons may place a priority rating on orders only when they are in receipt of a rated order, have been explicitly authorized to do so by the Department of Commerce or a Delegate Agency, or are otherwise permitted to do so by this part.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31921, June 11, 1998; 79 FR 47563, Aug. 14, 2014]

                §§ 700.4-700.7
                [Reserved]

              Subpart C—Definitions

                § 700.8
                Definitions.
                The definitions in this section apply throughout this part:

                  Allocation. The control of the distribution of materials, services or facilities for a purpose deemed necessary or appropriate to promote the national defense.

                  Allocation order. An official action to control the distribution of materials, services, or facilities for a purpose deemed necessary or appropriate to promote the national defense.

                  Allotment. An official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use to promote the national defense.

                  Approved program. A program determined as necessary or appropriate for priorities and allocations support to promote the national defense by the Secretary of Defense, the Secretary of Energy, or the Secretary of Homeland Security, under the authority of the Defense Production Act and Executive Order 13603, or the Selective Service Act and Executive Order 12742.

                  Construction. The erection, addition, extension, or alteration of any building, structure, or project, using materials or products which are to be an integral and permanent part of the building, structure, or project. Construction does not include maintenance and repair.

                  Critical infrastructure. Any systems and assets, whether physical or cyber-based, so vital to the United States that the degradation or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited to, national economic security and national public health or safety.

                  Defense Production Act. The Defense Production Act of 1950, as amended (50 U.S.C. App. 2061, et seq.).

                  Delegate Agency. A government agency authorized by delegation from the Department of Commerce to place priority ratings on contracts or orders needed to support approved programs.

                  Directive. An official action which requires a person to take or refrain from taking certain actions in accordance with its provisions.

                  Emergency preparedness. All activities and measures designed or undertaken to prepare for or minimize the effects of a hazard upon the civilian population, to deal with the immediate emergency conditions which would be created by the hazard, and to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by the hazard. Emergency preparedness includes the following:
                (1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the nonmilitary evacuation of the civilian population);
                (2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications); and
                (3) Measures to be undertaken following a hazard (including activities for firefighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).

                  Hazard. An emergency or disaster resulting from:
                (1) A natural disaster, or
                (2) An accidental or man-caused event.

                  Homeland security. Includes efforts:
                (1) To prevent terrorist attacks within the United States;
                (2) To reduce the vulnerability of the United States to terrorism;
                (3) To minimize damage from a terrorist attack in the United States; and
                (4) To recover from a terrorist attack in the United States.

                  Industrial resources. All materials, services, and facilities, including construction materials, the authority for which has not been delegated to other agencies under Executive Order 13603. This term also includes the term “item” as defined and used in this part.

                  Item. Any raw, in process, or manufactured material, article, commodity, supply, equipment, component, accessory, part, assembly, or product of any kind, technical information, process, or service.

                  Maintenance and repair and/or operating supplies (MRO). (1) Maintenance is the upkeep necessary to continue any plant, facility, or equipment in working condition.
                (2) Repair is the restoration of any plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by wear and tear, damage, or failure of parts.
                (3) Operating supplies are any items carried as operating supplies according to a person's established accounting practice. Operating supplies may include hand tools and expendable tools, jigs, dies, fixtures used on production equipment, lubricants, cleaners, chemicals and other expendable items.
                (4) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.

                  National defense. Programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity. Such term includes emergency preparedness activities conducted pursuant to Title VI of The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.) and critical infrastructure protection and restoration.

                  Official action. An action taken by the Department of Commerce under the authority of the Defense Production Act, the Selective Service Act and related statutes, and this part. Such actions include the issuance of rating authorizations, directives, letters of understanding, demands for information, inspection authorizations, administrative subpoenas and allocation orders.

                  Person. Any individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative thereof; or any authorized State or local government or agency thereof; and for purposes of administration of this part, includes the United States Government and any authorized foreign government or international organization or agency thereof, delegated authority as provided in this part.

                  Priorities authority. The authority of the Department of Commerce, pursuant to Section 101 of the Defense Production Act, to require priority performance of contracts and orders for industrial resource items for use in approved programs.

                  Priority rating. An identifying code assigned by a Delegate Agency or authorized person placed on all rated orders and consisting of the rating symbol and the program identification symbol.

                  Production equipment. Any item of capital equipment used in producing materials or furnishing services that has a unit acquisition cost of $2,500 or more, an anticipated service life in excess of one year, and the potential for maintaining its integrity as a capital item.

                  Program identification symbols. Abbreviations used to indicate which approved program is supported by a rated order.

                  Rated order. A prime contract, a subcontract, or a purchase order in support of an approved program issued in accordance with the provisions of this part.

                  Selective Service Act. Section 18 of the Selective Service Act of 1948 (50 U.S.C. app. 468).

                  Set-aside. An official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders.

                  Stafford Act. Title VI (Emergency Preparedness) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5195, et seq.).

                  Working day. Any day that the recipient of an order is open for business.
                [79 FR 47564, Aug. 14, 2014]

              Subpart D—Industrial Priorities

                § 700.10
                Authority.
                (a) Delegations to the Department of Commerce. The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to industrial resources have been delegated to the Secretary of Commerce under Executive Order 13603 of March 16, 2012 (3 CFR, 2012 Comp., p. 225). The priorities authorities of the President under the Selective Service Act and related statutes with respect to industrial resources have also been delegated to the Secretary of Commerce under Executive Order 12742 of January 8, 1991 (3 CFR, 1991 Comp. 309).
                (b) Delegations by the Department of Commerce. The Department of Commerce has authorized the Delegate Agencies to assign priority ratings to orders for industrial resources needed for use in approved programs.
                (c) Jurisdiction limitations. (1) The priorities and allocations authority for certain items have been delegated under Executive Order 13603, other executive orders, or Interagency Memoranda of Understanding between other agencies. Unless otherwise agreed to by the concerned agencies, the provisions of this part are not applicable to those other items which include:
                (i) Food resources, food resource facilities, livestock resources, veterinary resources, plant health resources, and the domestic distribution of farm equipment and commercial fertilizer (delegated to the Department of Agriculture);
                (ii) All forms of energy (delegated to the Department of Energy);
                (iii) Health resources (delegated to the Department of Health and Human Services);
                (iv) All forms of civil transportation (delegated to the Department of Transportation); and
                (v) Water resources (delegated to the Department of Defense/U.S. Army Corps of Engineers).
                (2) The priorities and allocations authority set forth in this part may not be applied to communications services subject to Executive Order 13618 of July 6, 2012—Assignment of National Security and Emergency Preparedness Communications Functions (3 CFR, 2012 Comp., p. 273).
                [79 FR 47565, Aug. 14, 2014]

                § 700.11
                Priority ratings.
                (a) Levels of priority. (1) There are two levels of priority established by this regulation, identified by the rating symbols “DO” and “DX”.
                (2) All DO rated orders have equal priority with each other and take preference over unrated orders. All DX rated orders have equal priority with each other and take preference over DO rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 700.14(c).)
                (3) In addition, a Directive issued by Commerce takes preference over any DX rated order, DO rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 700.62.)
                (b) Program identification symbols. Program identification symbols indicate which approved program is being supported by a rated order. The list of approved programs and their identification symbols is found in schedule I to this part. For example, A1 identifies defense aircraft programs and A7 signifies defense electronic programs. Program identification symbols, in themselves, do not connote any priority.
                (c) Priority ratings. A priority rating consists of the rating symbol—DO and DX—and the program identification symbol, such as A1, C2, or N1. Thus, a contract for the production of an aircraft will contain a DO-A1 or DX-A1 priority rating. A contract for a radar set will contain a DO-A7 or DX-A7 priority rating.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31922, June 11, 1998; 71 FR 39528, July 13, 2006; 79 FR 47565, Aug. 14, 2014]

                § 700.12
                Elements of a rated order.
                (a) Elements required for all rated orders. (1) The appropriate priority rating and program identification symbol (e.g., DO-A1, DX-A4, DO-N1).

                (2) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. When a “requirements contract,” “basic ordering agreement,” “prime vendor contract,” or similar procurement document bearing a priority rating contains no specific delivery date or dates, but provides for the furnishing of items from time-to-time or within a stated period against specific purchase orders, such as “calls,” “requisitions,” and “delivery orders,” the purchase orders supporting such contracts or agreements must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document.
                (3) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature, manual or digital, certifies that the rated order is authorized under this part and that the requirements of this part are being followed.
                (4) A statement that reads in substance: “This is a rated order certified for national defense use and you are required to follow all the provisions of the Defense Priorities and Allocations System regulations (15 CFR part 700).”
                (b) Additional element required for certain emergency preparedness rated orders. If a rated order is placed for the purpose of emergency preparedness requirements and expedited action is necessary or appropriate to meet these requirements, the following statement must be included in the order: “This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within [Insert a time limit no less than the minimum applicable time limit specified in § 700.13(d)(2)].”
                [79 FR 47565, Aug. 14, 2014]

                § 700.13
                Acceptance and rejection of rated orders.
                (a) Mandatory acceptance. (1) Except as otherwise specified in this section, a person shall accept every rated order received and must fill such orders regardless of any other rated or unrated orders that have been accepted.
                (2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.
                (b) Mandatory rejection. Unless otherwise directed by Commerce:
                (1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.
                (2) A person shall not accept a DO rated order for delivery on a date which would interfere with delivery of any previously accepted DO or DX rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.
                (3) A person shall not accept a DX rated order for delivery on a date which would interfere with delivery of any previously accepted DX rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.
                (4) If a person is unable to fill all the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.
                (c) Optional rejection. Unless otherwise directed by Commerce, rated orders may be rejected in any of the following cases as long as a supplier does not discriminate among customers:
                (1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;
                (2) If the order is for an item not supplied or for a service not performed;

                (3) If the order is for an item produced, acquired, or provided only for the supplier's own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items, the supplier is obligated to accept rated orders up to that quantity or portion of production, whichever is greater, sold within the past two years;
                (4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;
                (5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Commerce issued under the authority of the Defense Production Act or the Selective Service Act and related statutes [See § 700.75].
                (d) Customer notification requirements. (1) Except as provided in paragraph (d)(2) of this section, a person must accept or reject a rated order in writing (hard copy), or in electronic format, within fifteen (15) working days after receipt of a DO rated order and within ten (10) working days after receipt of a DX rated order. If the order is rejected, the person must give reasons in writing or electronically for the rejection.
                (2) If a rated order is placed for the purpose of emergency preparedness requirements and expedited action is necessary or appropriate to meet these requirements and the order includes the statement set forth in § 700.12(b), a person must accept or reject the rated order and transmit the acceptance or rejection in writing or in an electronic format within the time specified in the rated order. The minimum times for acceptance or rejection that such orders may specify are six (6) hours after receipt of the order if the order is issued by an authorized person in response to a hazard that has occurred, or twelve (12) hours after receipt if the order is issued by an authorized person to prepare for an imminent hazard.
                (3) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written (hard copy) or electronic confirmation must be provided within one working day of the verbal notice.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31922, June 11, 1998; 70 FR 10864, Mar. 7, 2005; 79 FR 47565, Aug. 14, 2014]

                § 700.14
                Preferential scheduling.
                (a) A person must schedule operations, including the acquisition of all needed production items, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.

                (b) DO rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery against unrated orders. Similarly, DX rated orders must be given preference over DO rated orders and unrated orders.

                  Examples:
                  If a person receives a DO rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX rated order is received calling for delivery on July 15 and a person has a DO rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX rated order. However, if business operations cannot be altered to meet both the June 3 and July 15 delivery dates, then the DX rated order must be given priority over the DO rated order.

                (c) Conflicting rated orders. (1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person shall give preference to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting rated orders are scheduled to be delivered or performed on the same day, the person shall give preference to those orders which have the earliest receipt dates.

                (2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance as provided in subpart H of this part. If the person's customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as provided in subpart H of this part. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 700.13(d)(3).
                (d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 700.17(b).
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31922, June 11, 1998; 79 FR 47566, Aug. 14, 2014]

                § 700.15
                Extension of priority ratings.

                (a) A person must use rated orders with suppliers to obtain items needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by the Department of Commerce.

                  Example:
                  If a person is in receipt of a DO-A3 rated order for a navigation system and needs to purchase semiconductors for its manufacture, that person must use a DO-A3 rated order to obtain the needed semiconductors.

                (b) The priority rating must be included on each successive order placed to obtain items needed to fill a customer's rated order. Therefore, the inclusion of the rating will continue from contractor to subcontractor to supplier throughout the entire supply chain.
                (c) A person must use rated orders with suppliers to obtain items needed to fill an emergency preparedness rated order. That person must require acceptance or rejection, and transmission of that acceptance or rejection by the supplier within the time limit stated in the rated order that is being filled.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47566, Aug. 14, 2014]

                § 700.16
                Changes or cancellations of priority ratings and rated orders.
                (a) The priority rating on a rated order may be changed or cancelled by:
                (1) An official action of the Department of Commerce; or
                (2) Written notification from the person who placed the rated order (including a Delegate Agency).
                (b) If an unrated order is amended so as to make it a rated order, or a DO, rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.
                (c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 700.13.
                (d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design (prior to the start of production); or a change which is agreed upon between the supplier and the customer.
                (e) A person must cancel any rated orders that the person (or a predecessor in interest) has placed with suppliers or cancel the priority ratings on those orders if the person no longer needs the items in those orders to fill a rated order.
                (f) A person adding a rating to an unrated order, or changing or cancelling a priority rating must promptly notify all suppliers to whom the order was sent of the addition, change or cancellation.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47566, Aug. 14, 2014]

                § 700.17
                Use of rated orders.
                (a) A person must use rated orders to obtain:

                (1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed, or converted into scrap or by-products, in the course of processing;
                (2) Containers or other packaging materials required to make delivery of the finished items against rated orders;
                (3) Services, other than contracts of employment, needed to fill rated orders; and
                (4) MRO needed to produce the finished items to fill rated orders. However, for MRO, the priority rating used must contain the program identification symbol H7 along with the rating symbol contained on the customer's rated order. For example, a person in receipt of a DO-A3 rated order, who needs MRO, would place a DO-H7 rated order with the person's supplier.
                (b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:
                (1) The order must be placed within 90 days of the date of use of the inventory.
                (2) A DO rating symbol and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating symbol may not be used even if the inventory was used to fill a DX rated order.
                (3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol H1 must be used (i.e., DO-H1).
                (c) A person may combine DX and DO rated orders from one customer or several customers if the items covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol H1 (i.e., DO-H1 or DX-H1).
                (d) Combining rated and unrated orders. (1) A person may combine rated and unrated order quantities on one purchase order provided that:
                (i) The rated quantities are separately and clearly identified; and
                (ii) The elements of a rated order, as required by § 700.12, are included on the order with the statement required in § 700.12(a)(4) modified to read in substance: “This purchase order contains rated order quantities certified for national defense use, and you are required to follow all the provisions of the Defense Priorities and Allocations System regulations (15 CFR part 700) as it pertains to the rated quantities.”
                (2) A supplier must accept or reject the rated portion of the purchase order as provided in § 700.13 and give preferential treatment only to the rated quantities as required by this part. This part may not be used to give preferential treatment to the unrated portion of the order.
                (3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this regulation or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 700.80.
                (e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.
                (f) A person is not required to place a priority rating on an order for less than $75,000, or one half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR)) (see FAR section 2.101), whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31923, June 11, 1998; 79 FR 47566, Aug. 14, 2014]

                § 700.18
                Limitations on placing rated orders.
                (a) General limitations. (1) A person may not place a rated order pursuant to this part unless the person is in receipt of a rated order, has been explicitly authorized to do so by the Department of Commerce or a Delegate Agency or is otherwise permitted to do so by this part.
                (2) Rated orders may not be used to obtain:
                (i) Delivery on a date earlier than needed;

                (ii) A greater quantity of the item than needed, except to obtain a minimum procurable quantity;
                (iii) Items in advance of the receipt of a rated order, except as specifically authorized by the Department of Commerce (see § 700.41(c) for information on obtaining authorization for a priority rating in advance of a rated order); or
                (iv) Any of the following items unless specific priority rating authority has been obtained from a Delegate Agency or the Department of Commerce:
                (A) Items for plant improvement, expansion or construction, unless they will be physically incorporated into a construction project covered by a rated order; or
                (B) Production or construction equipment or items to be used for the manufacture of production equipment (for information on requesting priority rating authority, see § 700.41).
                (v) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.
                (3) Separate rated orders may not be placed solely for obtaining minimum procurable quantities on each order if the minimum procurable quantity would be sufficient to cover more than one rated order.
                (b) Specific item limitations. Notwithstanding any authorization or requirement to place a rated order stated elsewhere in this part, no person may place a rated order to obtain the following items unless such order is authorized by an official action of the Department of Commerce.
                (1) Copper raw materials.
                (2) Crushed stone.
                (3) Gravel.
                (4) Sand.
                (5) Scrap.
                (6) Slag.
                (7) Steam heat, central.
                (8) Waste paper.
                [79 FR 47566, Aug. 14, 2014]

              Subpart E—Industrial Priorities for Energy Programs

                § 700.20
                Use of priority ratings.
                (a) Section 101(c) of the Defense Production Act authorizes the use of priority ratings for projects which maximize domestic energy supplies.
                (b) Projects which maximize domestic energy supplies include those which maintain or further domestic energy exploration, production, refining, and transportation; maintain or further the conservation of energy; or are involved in the construction or maintenance of energy facilities.

                § 700.21
                Application for priority rating authority.
                (a) For projects believed to maximize domestic energy supplies, a person may request priority rating authority for scarce, critical, and essential supplies of materials, equipment, and services (related to the production of materials or equipment, or the installation, repair, or maintenance of equipment) by submitting a request to the Department of Energy. Further information may be obtained from the Department of Energy, Office of Electricity Delivery and Energy Reliability, 1000 Independence Avenue SW., Washington, DC 20585.
                (b) If the Department of Energy notifies the Department of Commerce that the project maximizes domestic energy supplies and that the materials, equipment, or services are critical and essential, the Department of Commerce will determine whether the items in question are scarce, and, if they are scarce, whether there is a need to use the priorities authority.
                (1) Scarcity implies an unusual difficulty in obtaining the materials, equipment, or services in a time frame consistent with the timely completion of the energy project. In determining scarcity, the Department of Commerce may consider factors such as the following:
                (i) Value and volume of material or equipment shipments;
                (ii) Consumption of material and equipment;

                (iii) Volume and market trends of imports and exports;

                (iv) Domestic and foreign sources of supply;
                (v) Normal levels of inventories;
                (vi) Rates of capacity utilization;
                (vii) Volume of new orders; and
                (viii) Lead times for new orders.
                (2) In finding whether there is a need to use the priorities authority, the Department of Commerce may consider alternative supply solutions and other measures.
                (c) After the Department of Commerce has conducted its analysis, it will advise the Department of Energy whether the two findings have been satisfied. If the findings are satisfied, the Department of Commerce will authorize the Department of Energy to grant the use of a priority rating to the applicant.
                (d) Schedule I to this part includes a list of approved programs to support the maximization of domestic energy supplies. A Department of Energy regulation setting forth the procedures and criteria used by the Department of Energy in making its determination and findings is published in 10 CFR part 216.
                [79 FR 47567, Aug. 14, 2014]

              Subpart F—Allocation Actions

                Source:
                63 FR 31923, June 11, 1998, unless otherwise noted.

                § 700.30
                Policy.
                (a) Allocation orders will:
                (1) Be used only when there is insufficient supply of a material, service, or facility to satisfy national defense requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and
                (2) Not be used to ration materials or services at the retail level.
                (b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market.
                [79 FR 47567, Aug. 14, 2014]

                § 700.31
                General procedures.
                Before the Department of Commerce uses its allocations authority to address a supply problem within its resource jurisdiction, it will develop a plan that includes:
                (a) A copy of the written determination made in accordance with section 202 of Executive Order 13603, that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense;
                (b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action;
                (c) A statement of the specific objective(s) of the allocation action;
                (d) A list of the materials, services, or facilities to be allocated;
                (e) A list or description of the sources of the materials, services, or facilities that will be subject to the allocation action;
                (f) A detailed description of the provisions that will be included in the allocations orders, including the type(s) of allocations orders, the percentages or quantity of capacity or output to be allocated for each purpose, the relationship with previously or subsequently received priority rated and unrated contracts and orders, and the duration of the allocation action (e.g., anticipated start and end dates);
                (g) An evaluation of the impact of the proposed allocation action on the civilian market; and
                (h) Proposed actions, if any, to mitigate disruptions to civilian market operations.
                [79 FR 47567, Aug. 14, 2014]

                § 700.32
                Controlling the general distribution of a material in the civilian market.
                No allocation action by the Department of Commerce may be used to control the general distribution of a material in the civilian market unless the conditions of paragraphs (a), (b), and (c) of this section are met.
                (a) The Secretary has made a written finding that:

                (1) Such material is a scarce and critical material essential to the national defense, and

                (2) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship.
                (b) The Secretary has submitted the finding for the President's approval through the Assistant to the President and National Security Advisor and the Assistant to the President for Homeland Security and Counterterrorism.
                (c) The President has approved the finding.
                (d) In this section, the term, “Secretary” means the Secretary of Commerce or his or her designee.
                [79 FR 47567, Aug. 14, 2014]

                § 700.33
                Types of allocations orders.
                There are three types of allocations orders available for communicating allocation actions.
                (a) Set-aside. A set-aside is an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders.
                (b) Directive. A directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. For example, a directive can require a person to: stop or reduce production of an item; prohibit the use of selected materials, services, or facilities; or divert the use of materials, services, or facilities from one purpose to another.
                (c) Allotment. An allotment is an official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use to promote the national defense.
                [79 FR 47567, Aug. 14, 2014]

                § 700.34
                Elements of an allocation order.

                Allocation orders may be issued directly to the affected persons or by constructive notice to the parties through publication in the Federal Register. This section describes the elements that each order must include.
                (a) Elements to be included in all allocation orders. (1) A detailed description of the required allocation action(s), including its relationship to previously or subsequently received DX rated orders, DO rated orders and unrated orders.
                (2) Specific start and end calendar dates for each required allocation action.
                (b) Elements to be included in orders issued directly to affected persons. (1) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Defense Priorities and Allocations System regulations (15 CFR part 700).”
                (2) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an authorized official or employee of the Department of Commerce.
                (c) Elements to be included in an allocation order that gives constructive notice through publication in the
                  Federal Register. (1) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the name(s) of the person(s) to whom the order applies or a description of the class of persons to whom the order applies] is (are) required to comply with this order, in accordance with the provisions of the Defense Priorities and Allocations System regulations (15 CFR part 700).”
                (2) The order must be signed by an authorized official or employee of the Department of Commerce.
                [79 FR 47567, Aug. 14, 2014]

                § 700.35
                Mandatory acceptance of an allocation order.
                (a) Except as otherwise specified in this section, a person shall accept and comply with every allocation order received.

                (b) A person shall not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person's terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order.

                (c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify the Office of Strategic Industries and Economic Security immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written or electronic confirmation must be provided within one working day. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by the Department of Commerce that the order has been changed or cancelled.
                [79 FR 47567, Aug. 14, 2014]

                § 700.36
                Changes or cancellations of allocation orders.

                An allocation order may be changed or cancelled by an official action from the Department of Commerce. Notice of such changes or cancellations may be provided directly to persons to whom the order being cancelled or modified applies or constructive notice may be provided by publication in the Federal Register.

                [79 FR 47567, Aug. 14, 2014]

              Subpart G [Reserved]

              Subpart H—Special Priorities Assistance

                § 700.50
                General provisions.
                (a) Once a priority rating has been authorized pursuant to this part, further action by the Department of Commerce generally is not needed. However, it is anticipated that from time-to-time problems will occur. In this event, a person should immediately contact the appropriate contract administration officer for guidance or assistance. If additional formal aid is needed, special priorities assistance should be sought from the Delegate Agency through the contract administration officer. If the Delegate Agency is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Delegate Agency may forward the request to the Department of Commerce for action. Special priorities assistance is a service provided to alleviate problems that do arise.
                (b) Special priorities assistance can be provided for any reason consistent with this part, such as assisting in obtaining timely deliveries of items needed to satisfy rated orders or authorizing the use of priority ratings on orders to obtain items not otherwise ratable under this part. If the Department of Commerce is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Department of Commerce may forward the request to another agency, identified in § 700.10(c), as appropriate, for action.
                (c) A request for special priorities assistance or priority rating authority must be submitted on Form BIS-999 (OMB control number 0694-0057) to the local contract administration representative. Form BIS-999 may be obtained from the Delegate Agency representative or from the Department of Commerce. A sample Form BIS-999 is attached at appendix I.
                [49 FR 30414, July 30, 1984; 49 FR 50171, Dec. 27, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31924, June 11, 1998; 79 FR 47568, Aug. 14, 2014]

                § 700.51
                Requests for priority rating authority.
                (a) If a rated order is likely to be delayed because a person is unable to obtain items not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items. Examples of items for which priority ratings can be authorized include:
                (1) Production or construction equipment;
                (2) Computers when not used as production items; and
                (3) Expansion, rebuilding or replacing plant facilities.
                (b) Rating authority for production or construction equipment. (1) A request for priority rating authority for production or construction equipment must be submitted to the appropriate Delegate Agency. The Delegate Agency may establish particular forms to be used for these requests (e.g., Department of Defense Form DD 691.)

                (2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.
                (c) Rating authority in advance of a rated prime contract. (1) In certain cases and upon specific request, the Department of Commerce, in order to promote the national defense, may authorize a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from the appropriate Delegate Agency. The person shall also assume any business risk associated with the placing of rated orders if these orders have to be cancelled in the event the rated prime contract is not issued.

                (2) The person must state the following in the request:

                  It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from a Delegate Agency and our use of that priority rating with our suppliers in no way commits the Delegate Agency, the Department of Commerce or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.

                (3) In reviewing requests for rating authority in advance of a rated prime contract, the Department of Commerce will consider, among other things, the following criteria:
                (i) The probability that the prime contract will be awarded;
                (ii) The impact of the resulting rated orders on suppliers and on other authorized programs;
                (iii) Whether the contractor is the sole source;
                (iv) Whether the item being produced has a long lead time; and
                (v) The time period for which the rating is being requested.
                (4) Commerce may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.
                (5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47568, Aug. 14, 2014]

                § 700.52
                Examples of assistance.
                (a) While special priorities assistance may be provided for any reason in support of this regulation, it is usually provided in situations where:
                (1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or
                (2) A person cannot locate a supplier for an item needed to fill a rated order.
                (b) Other examples of special priorities assistance include:
                (1) Ensuring that rated orders receive preferential treatment by suppliers;
                (2) Resolving production or delivery conflicts between various rated orders;
                (3) Assisting in placing rated orders with suppliers;
                (4) Verifying the urgency of rated orders; and
                (5) Determining the validity of rated orders.

                § 700.53
                Criteria for assistance.

                Requests for special priorities assistance should be timely, i.e., the request has been submitted promptly and enough time exists for the Delegate Agency or the Department of Commerce to effect a meaningful resolution to the problem, and must establish that:
                (a) There is an urgent need for the item; and
                (b) The applicant has made a reasonable effort to resolve the problem.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47568, Aug. 14, 2014]

                § 700.54
                Instances where assistance will not be provided.

                Special priorities assistance is provided at the discretion of the Delegate Agencies and the Department of Commerce when it is determined that such assistance is warranted to meet the objectives of this regulation. Examples where assistance may not be provided include situations when a person is attempting to:
                (a) Secure a price advantage;
                (b) Obtain delivery prior to the time required to fill a rated order;
                (c) Gain competitive advantage;
                (d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or
                (e) Overcome a supplier's regularly established terms of sale or conditions of doing business.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31924, June 11, 1998; 79 FR 47568, Aug. 14, 2014]

                § 700.55
                Homeland security, emergency preparedness, and critical infrastructure protection and restoration assistance programs within the United States.

                Any person requesting priority rating authority or requiring assistance in obtaining rated items supporting homeland security, emergency preparedness, and critical infrastructure protection and restoration related activities should submit a request for such assistance or priority rating authority to the Office of Policy and Program Analysis, Federal Emergency Management Agency, Department of Homeland Security, 500 C Street SW., Washington, DC 20472; telephone: (202) 646-3520; Fax: (202) 646-4060; Email: fema-dpas@dhs.gov, Web site: http://www.fema.gov/defense-production-act-program-division.

                [79 FR 47568, Aug. 14, 2014]

                § 700.56
                Military assistance programs with Canada.
                (a) To promote military assistance to Canada, this section provides for authorizing priority ratings to persons in Canada to obtain items in the United States in support of approved programs. Although priority ratings have no legal authority outside of the United States, this section also provides information on how persons in the United States may obtain informal assistance in Canada in support of approved programs.
                (b) The joint United States-Canadian military arrangements for the defense of North America and the integrated nature of the United States and Canadian defense industries require close coordination and the establishment of a means to provide mutual assistance to the defense industries located in both countries.
                (c) The Department of Commerce coordinates with the Canadian Public Works and Government Services Canada on all matters of mutual concern relating to the administration of this part.

                (d) Any person in the United States ordering defense items in Canada in support of an approved program should inform the Canadian supplier that the items being ordered are to be used to fill a rated order. The Canadian supplier should be informed that if production materials are needed from the United States by the supplier or the supplier's vendor to fill the order, the supplier or vendor should contact the Canadian Public Works and Government Services Canada for authority to place rated orders in the United States: Public Works and Government Services Canada, Acquisitions Branch, Business Management Directorate, Phase 3, Place du Portage, Level 0A1, 11 Laurier Street, Gatineau, Quebec, K1A 0S5, Canada; Telephone: (819) 956-6825; Fax: (819) 956-7827, or electronically at DGAPrioritesdedefense.ACQBDefencePriorities@tpsgc-pwgsc.gc.ca.

                (e) Any person in Canada producing defense items for the Canadian government may also obtain priority rating authority for items to be purchased in the United States by applying to the Canadian Public Works and Government Services Canada, Acquisitions Branch, Business Management Directorate, in accordance with its procedures.

                (f) Persons in Canada needing special priorities assistance in obtaining defense items in the United States may apply to the Canadian Public Works and Government Services Canada, Acquisitions Branch, Business Management Directorate, for such assistance. Public Works and Government Services Canada will forward appropriate requests to the Department of Commerce.
                (g) Any person in the United States requiring assistance in obtaining items in Canada must submit a request through the Delegate Agency to the Office of Strategic Industries and Economic Security, U.S. Department of Commerce on Form BIS-999. The Department of Commerce will forward appropriate requests to the Canadian Public Works and Government Services Canada.
                [79 FR 47568, Aug. 14, 2014]

                § 700.57
                Military assistance programs with other nations and international organizations.
                (a) Scope. To promote military assistance to foreign nations and international organizations (for example, the North Atlantic Treaty Organization or the United Nations), this section provides for authorizing priority ratings to persons in foreign nations or international organizations to obtain items in the United States in support of approved programs. Although priority ratings have no legal authority outside of the United States, this section also provides information on how persons in the United States may obtain informal assistance in Australia, Finland, Italy, The Netherlands, Spain, Sweden, and the United Kingdom in support of approved programs.
                (b) Foreign nations and international organizations. (1) Any person in a foreign nation other than Canada, or any person in an international organization, requiring assistance in obtaining items in the United States or priority rating authority for items to be purchased in the United States, should submit a request for such assistance or priority rating authority to: the Department of Defense DPAS Lead in the Office of the Deputy Assistant Secretary of Defense for Manufacturing and Industrial Base Policy, 3330 Defense Pentagon, Room 3B854, Washington, DC 20301; Telephone: (703) 697-0051; Fax: (703) 695-4885; Email: MIBP@osd.mil, Web site: http://www.acq.osd.mil/mibp.

                (i) If the end product is being acquired by a U.S. Government agency, the request should be submitted to the Department of Defense DPAS Lead through the U.S. contract administration representative.
                (ii) If the end product is being acquired by a foreign nation or international organization, the request must be sponsored prior to its submission to the Department of Defense DPAS Lead by the government of the foreign nation or the international organization that will use the end product.
                (2) If the Department of Defense endorses the request, it will be forwarded to the Department of Commerce for appropriate action.
                (c) Requesting assistance in Australia, Finland, Italy, The Netherlands, Spain, Sweden, and the United Kingdom. (1) The Department of Defense has entered into bilateral security of supply arrangements with Australia, Finland, Italy, The Netherlands, Spain, Sweden, and the United Kingdom that allow the Department of Defense to request the priority delivery for Department of Defense contracts, subcontracts, and orders from companies in these countries.
                (2) Any person in the United States requiring assistance in obtaining the priority delivery of a contract, subcontract, or order in Australia, Finland, Italy, The Netherlands, Spain, Sweden, or the United Kingdom to support an approved program should contact the Department of Defense DPAS Lead in the Office of the Deputy Assistant Secretary of Defense for Manufacturing and Industrial Base Policy for assistance. Persons in Australia, Finland, Italy, The Netherlands, Spain, Sweden, and the United Kingdom should request assistance in accordance with paragraph (b)(1) of this section.
                [79 FR 47568, Aug. 14, 2014, as amended at 80 FR 50762, Aug. 21, 2015]

                § 700.58
                Critical infrastructure assistance programs to foreign nations and international organizations.
                (a) Scope. To promote critical infrastructure assistance to foreign nations, this section provides for authorizing priority ratings to persons in foreign nations or international organizations (for example the North Atlantic Treaty Organization or the United Nations) to obtain items in the United States in support of approved programs.
                (b) Foreign nations or international organizations. Any person in a foreign nation or representing an international organization requiring assistance in obtaining items to be purchased in the United States for support of critical infrastructure protection and restoration should submit a request for such assistance or priority rating authority to the Office of Policy and Program Analysis, Federal Emergency Management Agency, Department of Homeland Security, 500 C Street SW., Washington, DC 20472; telephone: (202) 646-3520; Fax: (202) 646-4060; Email: fema-dpas@dhs.gov, Web site: http://www.fema.gov/defense-production-act-program-division.

                [79 FR 47568, Aug. 14, 2014]

              Subpart I—Official Actions

                § 700.60
                General provisions.
                (a) The Department of Commerce may, from time-to-time, take specific official actions to implement or enforce the provisions of this part.
                (b) Some of these official actions (rating authorizations and letters of understanding) are discussed in this subpart. Official actions that pertain to compliance (administrative subpoenas, demands for information, and inspection authorizations) are discussed in § 700.71(c). Directives are discussed in § 700.62.
                [79 FR 47569, Aug. 14, 2014]

                § 700.61
                Rating authorizations.
                (a) A rating authorization is an official action granting specific priority rating authority that:
                (1) Permits a person to place a priority rating on an order for an item not normally ratable under this regulation; or
                (2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.
                (b) To request priority rating authority, see § 700.51.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47570, Aug. 14, 2014]

                § 700.62
                Directives.
                (a) A directive is an official action which requires a person to take or refrain from taking certain actions in accordance with its provisions.
                (b) A person must comply with each directive issued. However, a person may not use or extend a directive to obtain any items from a supplier, unless expressly authorized to do so in the directive.
                (c) Directives take precedence over all DX rated orders, DO rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the directive.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47570, Aug. 14, 2014]

                § 700.63
                Letters of understanding.
                (a) A letter of understanding is an official action which may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (the Department of Commerce, the Delegate Agency, the supplier, and the customer).
                (b) A letter of understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this regulation, or to take other official actions. Rather, letters of understanding are used to confirm production or shipping schedules which do not require modifications to other rated orders.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47570, Aug. 14, 2014]

              Subpart J—Compliance

                § 700.70
                General provisions.
                (a) Compliance actions may be taken for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act, the Selective Service Act and related statutes, this part, or an official action. Such actions include audits, investigations, or other inquiries.

                (b) Willful violation of any of the provisions of Title I or section 705 of the Defense Production Act, this part, or an official action of the Department of Commerce, is a criminal act, punishable as provided in the Defense Production Act and as set forth in § 700.74 of this part.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31924, June 11, 1998; 79 FR 47570, Aug. 14, 2014]

                § 700.71
                Audits and investigations.
                (a) Audits and investigations are official actions involving the examination of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act, the Selective Service Act and related statutes, and this part have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.
                (b) When undertaking an audit, investigation, or other inquiry, the Department of Commerce shall:
                (1) Define the scope and purpose in the official action given to the person under investigation, and
                (2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.
                (c) In administering this part, the Department of Commerce may issue the following documents, which constitute official actions:
                (1) Administrative subpoenas. An administrative subpoena requires a person to appear as a witness before an official designated by the Department of Commerce to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act, the Selective Service Act and related statutes, or this part. An administrative subpoena may also require the production of books, papers, records, documents and physical objects or property.
                (2) Demand for information. A demand for information requires a person to furnish to a duly authorized representative of the Department of Commerce any information necessary or appropriate to the enforcement or the administration of the Defense Production Act, the Selective Service Act, or this part.
                (3) Inspection authorizations. An inspection authorization requires a person to permit a duly authorized representative of the Department of Commerce to interview the person's employees or agents, to inspect books, records, documents, other writings and information in the person's possession or control at the place where that person usually keeps them, and to inspect a person's property when such interviews and inspections are necessary or appropriate to the enforcement or the administration of the Defense Production Act, the Selective Service Act, or this part.
                (d) The production of books, records, documents, other writings and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the administrative subpoena or demand for information, a duly authorized official of the Department of Commerce is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of the Department of Commerce as to the content of the material.
                (e) An administrative subpoena, demand for information, or inspection authorization shall include the name, title or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the administrative subpoena, demand for information, or inspection authorization will describe them with particularity.
                (f) Service of documents shall be made in the following manner:

                (1) Service of a demand for information or inspection authorization shall be made personally, or by certified mail—return receipt requested at the person's last known address. Service of an administrative subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone at least 18 years of age at the person's last known dwelling or place of business.
                (2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.
                (3) Any individual 18 years of age or older may serve an administrative subpoena, demand for information, or inspection authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.
                [79 FR 47570, Aug. 14, 2014]

                § 700.72
                Compulsory process.

                (a) If a person refuses to permit a duly authorized representative of the Department of Commerce to have access to any premises or source of information necessary to the administration or enforcement of the Defense Production Act or this part, the Department of Commerce may seek compulsory process. Compulsory process means the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction.
                (b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Director of the Office of Strategic Industries and Economic Security, U.S. Department of Commerce, in consultation with the Chief Counsel for Industry and Security, U.S. Department of Commerce, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31924, June 11, 1998; 67 FR 45633, July 10, 2002; 71 FR 39528, July 13, 2006; 79 FR 47570, Aug. 14, 2014]

                § 700.73
                Notification of failure to comply.
                (a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, the Department of Commerce may inform the person in writing where compliance with the requirements of the Defense Production Act, the Selective Service Act and related statutes, or this part were not met.
                (b) In cases where the Department of Commerce determines that failure to comply with the provisions of the Defense Production Act, the Selective Service Act and related statutes, or this part was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act, this part, or an official action.
                [79 FR 47570, Aug. 14, 2014]

                § 700.74
                Violations, penalties, and remedies.
                (a) Willful violation of the provisions of Title I or Sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes or this part is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalty provided by the Defense Production Act is a $10,000 fine, or one year in prison, or both. The maximum penalty provided by the Selective Service Act is a $50,000 fine, or three years in prison, or both.
                (b) The government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.

                (c) In order to secure the effective enforcement of the Defense Production Act, this part, and official actions, the following are prohibited (see section 704 of the Defense Production Act; see also, for example, sections 2 and 371 of Title 18 United States Code):
                (1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act, this part, or an official action.
                (2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act, this part, or an official action.
                (3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act, this part, or an official action. In such instances, the person must immediately notify the Department of Commerce that, in accordance with this section, delivery has not been made.
                [79 FR 47571, Aug. 14, 2014]

                § 700.75
                Compliance conflicts.
                If compliance with any provision of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act, this regulation, or an official action, the person must immediately notify the Department of Commerce for resolution of the conflict.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31924, June 11, 1998]

              Subpart K—Adjustments, Exceptions, and Appeals

                § 700.80
                Adjustments or exceptions.
                (a) A person may submit a request to the Office of Strategic Industries and Economic Security, U.S. Department of Commerce, for an adjustment or exception on the ground that:
                (1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or
                (2) The consequence of following a provision of this part or an official action is contrary to the intent of the Defense Production Act, the Selective Service Act and related statutes, or this part.
                (b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.
                (c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provisions of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Office of Strategic Industries and Economic Security. The Office of Strategic Industries and Economic Security shall respond to requests for adjustment of or exceptions to compliance with the provisions of this part or an official action within 25 (twenty-five) days, not including Saturdays, Sundays or Government holidays, of the date of receipt.
                (d) A decision of the Office of Strategic Industries and Economic Security under this section may be appealed to the Assistant Secretary for Export Administration, U.S. Department of Commerce. (For information on the appeal procedure, see § 700.81.)
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31924, 31925, June 11, 1998; 79 FR 47571, Aug. 14, 2014]

                § 700.81
                Appeals.

                (a) Any person who has had a request for adjustment or exception denied by the Office of Strategic Industries and Economic Security under § 700.80, may appeal to the Assistant Secretary for Export Administration, Department of Commerce, who shall review and reconsider the denial. Such appeals should be submitted to the Office of the Assistant Secretary for Export Administration, Bureau of Industry and Security, Department of Commerce, Room 3886, Washington, DC 20230, Ref: DPAS Appeals.

                (b) Appeals of denied requests for exceptions from or adjustments to compliance with the provisions of this part or an official action must be received by the Assistant Secretary for Export Administration no later than 45 days after receipt of a written notice of denial from the Office of Strategic Industries and Economic Security. After this 45-day period, an appeal may be accepted at the discretion of the Assistant Secretary for Export Administration.
                (c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.
                (d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Assistant Secretary for Export Administration.
                (e) When a hearing is granted, the Assistant Secretary for Export Administration may designate an employee of the Department of Commerce to conduct the hearing and to prepare a report. The hearing officer shall determine all procedural questions and impose such time or other limitations deemed reasonable. In the event that the hearing officer decides that a printed transcript is necessary, all expenses shall be borne by the appellant.
                (f) When determining an appeal, the Assistant Secretary for Export Administration may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Commerce, or consult with any other persons or groups.
                (g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provisions of this part or official action in question while the appeal is being considered, unless such relief is granted in writing by the Assistant Secretary for Export Administration.
                (h) The decision of the Assistant Secretary for Export Administration shall be made within a reasonable time after receipt of the appeal and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31925, June 11, 1998; 71 FR 39528, July 13, 2006; 79 FR 47571, Aug. 14, 2014]

              Subpart L—Miscellaneous Provisions

                § 700.90
                Protection against claims.
                A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47571, Aug. 14, 2014]

                § 700.91
                Records and reports.
                (a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part (OMB control number 0694-0053) or an official action.
                (b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.
                (c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of the Department of Commerce as provided in § 700.71.
                (d) In addition, persons must develop, maintain, and submit any other records and reports to the Department of Commerce that may be required for the administration of the Defense Production Act, the Selective Service Act and related statutes, and this part.

                (e) Section 705(d) of the Defense Production Act provides that information obtained under this section which the President deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the President determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Commerce in connection with the enforcement or administration of the Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Act and shall not be published or disclosed except as required by law.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 63 FR 31924, 31925, June 11, 1998; 79 FR 47571, Aug. 14, 2014]

                § 700.92
                Applicability of this part and official actions.
                (a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.
                (b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.
                (c) This part and its schedules shall not be construed to affect any administrative actions taken by the Department of Commerce, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules or delegations of authority under the Defense Materials System and Defense Priorities System previously issued by the Department of Commerce. Such actions, contracts, or orders shall continue in full force and effect under this part unless modified or terminated by proper authority.
                (d) The repeal of any provision of this part, orders, schedules and delegations of authority of the Defense Materials System (DMS) and Defense Priorities System (DPS) shall not have the effect to release or extinguish any penalty or liability incurred under the DMS/DPS. The DMS/DPS shall be treated as still remaining in force for the purpose of sustaining any action for the enforcement of such penalty or liability.
                [49 FR 30414, July 30, 1984. Redesignated at 54 FR 601, Jan. 9, 1989, as amended at 79 FR 47571, Aug. 14, 2014]

                § 700.93
                Communications.

                General communications concerning this part, including how to obtain copies of this part and explanatory information, requests for guidance or clarification, may be addressed to the Office of Strategic Industries and Economic Security, Room 3876, Department of Commerce, Washington, DC 20230, Ref: DPAS; telephone (202) 482-3634, email DPAS@bis.doc.gov. Request for priorities assistance under § 700.50, adjustments or exceptions under § 700.80, or appeals under § 700.81, must be submitted in the manner specified in those sections.
                [79 FR 47571, Aug. 14, 2014]

                Pt. 700, Sched. I
                Schedule I to Part 700—Approved Programs and Delegate Agencies
                The programs listed in this schedule have been approved for priorities support under this part by the Department of Defense,1

                   the Department of Energy or the Department of Homeland Security, in accordance with section 202 of Executive Order 13603. They have equal preferential status. The Department of Commerce has authorized the delegate agencies listed in the third column to use this part in support of those programs assigned to them, as indicated below.2

                    1 Department of Defense includes: The Office of the Secretary of Defense, the Military Departments, the Joint Staff, the Combatant Commands, the Defense Agencies, the Defense Field Activities, all other organizational entities in the Department of Defense, and, for purposes of this part, the Central Intelligence Agency and the National Aeronautics and Space Administration as associated agencies.

                    2 The Department of Commerce is also listed as an agency in the third column for programs where its authorization is necessary to place rated orders.

                    Program identification symbol
                    Approved program
                    Agency(ies)

                      Defense Programs

                    A1
                    Aircraft
                    Department of Defense.

                    A2
                    Missiles
                    Department of Defense.

                    A3
                    Ships
                    Department of Defense.

                    A4
                    Tank—Automotive
                    Department of Defense.

                    A5
                    Weapons
                    Department of Defense.

                    A6
                    Ammunition
                    Department of Defense.

                    A7
                    Electronic and communications equipment
                    Department of Defense.

                    B1
                    Military building supplies
                    Department of Defense.

                    B8
                    Production equipment (for defense contractor's account)
                    Department of Defense.

                    B9
                    Production equipment (Government owned)
                    Department of Defense.

                    C1
                    Food resources (combat rations)
                    Department of Defense.

                    C2
                    Department of Defense construction
                    Department of Defense.

                    C3
                    Maintenance, repair, and operating supplies (MRO) for Department of Defense facilities
                    Department of Defense.

                    C9
                    Miscellaneous
                    Department of Defense.

                      Military Assistance to Canada

                    D1
                    Canadian military programs
                    Department of Commerce.

                    D2
                    Canadian production and construction
                    Department of Commerce.

                    D3
                    Canadian atomic energy program
                    Department of Commerce.

                      Military Assistance to Other Foreign Nations

                    G1
                    Certain munitions items purchased by foreign governments through domestic commercial channels for export
                    Department of Commerce.

                    G2
                    Certain direct defense needs of foreign governments other than Canada
                    Department of Commerce.

                    G3
                    Foreign nations (other than Canada) production and construction
                    Department of Commerce.

                      Critical Infrastructure Assistance to Foreign Nations

                    G4
                    Foreign critical infrastructure programs
                    Department of Commerce.

                      Co-Production

                    J1
                    F-16 Co-Production Program
                    Departments of Commerce and Defense.

                      Atomic Energy Programs

                    E1
                    Construction
                    Department of Energy.

                    E2
                    Operations—including maintenance, repair, and operating supplies (MRO)
                    Department of Energy.

                    E3
                    Privately owned facilities
                    Department of Energy.

                      Domestic Energy Programs

                    F1
                    Exploration, production, refining, and transportation
                    Department of Energy.

                    F2
                    Conservation
                    Department of Energy.

                    F3
                    Construction, repair, and maintenance
                    Department of Energy.

                      Other Defense, Energy, and Related Programs

                    H1
                    Certain combined orders (see section 700.17(c))
                    Department of Commerce.

                    H5
                    Private domestic production
                    Department of Commerce.

                    H6
                    Private domestic construction
                    Department of Commerce.

                    H7
                    Maintenance, repair, and operating supplies (MRO)
                    Department of Commerce.

                    H8
                    Designated Programs
                    Department of Commerce.

                    K1
                    Federal supply items
                    General Services Administration.

                      Homeland Security Programs

                    N1
                    Federal emergency preparedness, mitigation, response, and recovery
                    Department of Homeland Security.

                    N2
                    State, local, tribal government emergency preparedness, mitigation, response, and recovery
                    Department of Homeland Security.

                    N3
                    Intelligence and warning systems
                    Department of Homeland Security.

                    N4
                    Border and transportation security
                    Department of Homeland Security.

                    N5
                    Domestic counter-terrorism, including law enforcement
                    Department of Homeland Security.

                    N6
                    Chemical, biological, radiological, and nuclear countermeasures
                    Department of Homeland Security.

                    N7
                    Critical infrastructure protection and restoration
                    Department of Homeland Security.

                    N8
                    Miscellaneous
                    Department of Homeland Security.

                [79 FR 47572, Aug. 14, 2014]

                Pt. 700, App. I
                Appendix I to Part 700—Form BIS-999—Request for Special Priorities Assistance

                  ER13JY06.000

                  ER13JY06.001

                  ER13JY06.002

                  ER13JY06.003

                [71 FR 39529, July 13, 2006]

            Pt. 701
            PART 701—REPORTING OF OFFSETS AGREEMENTS IN SALES OF WEAPON SYSTEMS OR DEFENSE-RELATED ITEMS TO FOREIGN COUNTRIES OR FOREIGN FIRMS

              Sec.
              701.1
              Purpose.
              701.2
              Definitions.
              701.3
              Applicability and scope.
              701.4
              Procedures.
              701.5
              Confidentiality.
              701.6
              Violations, penalties, and remedies.

              Authority:
              50 U.S.C. 4568; E.O. 12919, 59 FR 29525, 3 CFR, 1994 Comp., p. 901; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.

              Source:
              59 FR 61796, Dec. 2, 1994, unless otherwise noted.

              § 701.1
              Purpose.
              The Defense Production Act Amendments of 1992 require the Secretary of Commerce to promulgate regulations for U.S. firms entering into contracts for the sale of defense articles or defense services to foreign countries or foreign firms that are subject to offset agreements exceeding $5,000,000 in value to furnish information regarding such agreements. The Secretary of Commerce has designated the Bureau of Industry and Security as the organization responsible for implementing this provision. The information provided by U.S. firms will be aggregated and used to determine the impact of offset transactions on the defense preparedness, industrial competitiveness, employment, and trade of the United States. Summary reports are submitted annually to Congress pursuant to Section 309 of the Defense Production Act of 1950, as amended.
              [59 FR 61796, Dec. 2, 1994, as amended at 74 FR 68140, Dec. 23, 2009]

              § 701.2
              Definitions.
              (a) Offsets. Compensation practices required as a condition of purchase in either government-to-government or commercial sales of:
              (1) Defense articles and/or defense services as defined by the Arms Export Control Act and the International Traffic in Arms Regulations; or
              (2) Items controlled under an Export Control Classification Number (ECCN) that has the numeral “6” as its third character in the Commerce Control List found in supplement no. 1 to part 774 of this chapter other than semi-submersible and submersible vessels specially designed for cargo transport and parts, components, accessories and attachments specially designed therefor controlled under ECCN 8A620.b; test, inspection and production equipment controlled in ECCN 8B620.b, software controlled in ECCN 8D620.b and technology controlled in ECCN 8E620.b.
              (b) Military Export Sales. Exports that are either Foreign Military Sales (FMS) or commercial (direct) sales of:
              (1) Defense articles and/or defense services as defined by the Arms Export Control Act and International Traffic in Arms Regulations; or
              (2) Items controlled under an Export Control Classification Number (ECCN) that has the numeral “6” as its third character in the Commerce Control List found in supplement no. 1 to part 774 of this chapter other than semi-submersible and submersible vessels specially designed for cargo transport and parts, components, accessories and attachments specially designed therefor controlled under ECCN 8A620.b; test, inspection and production equipment controlled in ECCN 8B620.b; software controlled in ECCN 8D620.b; and technology controlled in ECCN 8E620.b.
              (c) Prime Contractor. A firm that has a sales contract with a foreign entity or with the U.S. Government for military export sales.
              (d) United States. Includes the 50 states, the District of Columbia, Puerto Rico, and U.S. territories.
              (e) Offset Agreement. Any offset as defined above that the U.S. firm agrees to in order to conclude a military export sales contract. This includes all offsets, whether they are “best effort” agreements or are subject to penalty clauses.
              (f) Offset Transaction. Any activity for which the U.S. firm claims credit for full or partial fulfillment of the offset agreement. Activities to implement offset agreements are categorized as co-production, technology transfer, subcontracting, credit assistance, training, licensed production, investment, purchases and other. Paragraphs (f)(1) through (f)(8) of this section provide examples of the categories of offset transactions.
              (1) Example 1. Company A, a U.S. firm, contracts for Company B, a foreign firm located in country C, to produce a component of a U.S.-origin defense article subject to an offset agreement between Company A and country C. The defense article will be sold to country C pursuant to a Foreign Military Sale and the production role of Company B is described in the Letter of Offer and Acceptance associated with that sale and a government-to-government co-production memorandum of understanding. This transaction would be categorized as co-production and would, like all co-production transactions, be direct.
              (2) Example 2. Company A, a U.S. firm, transfers technology to Company B, a foreign firm located in country C, which allows Company B to conduct research and development directly related to a defense article that is subject to an offset agreement between Company A and country C. This transaction would be categorized as technology transfer and would be direct because the research and development is directly related to an item subject to the offset agreement.
              (3) Example 3. Company A, a U.S. firm, contracts for Company B, a foreign firm located in country C, to produce a component of a U.S.-origin defense article subject to an offset agreement between Company A and country C. The contract with Company B is for a direct commercial sale and Company A does not license Company B to use any technology. The transaction would be categorized as subcontracting and would, like all subcontracting transactions, be direct.
              (4) Example 4. Company A, a U.S. firm, makes arrangements for a line of credit at a financial institution for Company B, a foreign firm located in country C, so that Company B can produce an item that is not subject to the offset agreement between Company A and country C. The transaction would be categorized as credit assistance and would be indirect because the credit assistance is unrelated to an item covered by the offset agreement.
              (5) Example 5. Company A, a U.S. firm, arranges for training of personnel from Company B, a foreign firm located in country C. The training is related to the production and maintenance of a U.S.-origin defense article that is subject to an offset agreement between Company A and country C. The transaction would be categorized as training and would be direct because the training is directly related to the production and maintenance of an item covered by the offset agreement.
              (6) Example 6. Company A, a U.S. firm, contracts for Company B, a foreign firm located in country C, to produce a component of a U.S.-origin defense article that is subject to an offset agreement between Company A and country C. The contract with Company B is a Foreign Military Sale and Company A licenses Company B to use Company A's production technology to produce the component. There is no co-production agreement between the United States and country C. The transaction would be categorized as licensed production and would be direct because it involves the item covered by the offset agreement.
              (7) Example 7. Company A, a U.S. firm, makes an investment in Company B, a foreign firm located in country C, so that Company B can create a new production line to produce a component of a defense article that is subject to an offset agreement between Company A and country C. The transaction would be categorized as investment and would be direct because the investment involves an item covered by the offset agreement.
              (8) Example 8. Company A, a U.S. firm, purchases various off-the-shelf items from Company B, a foreign firm located in country C, but none of these items will be used by Company A to produce the defense article subject to the offset agreement between Company A and country C. The transaction would be categorized as purchases and would, like all purchase transactions, be indirect.
              (g) Direct Offset. An offset transaction directly related to the article(s) or service(s) exported or to be exported pursuant to the military export sales agreement. See the examples illustrating offset transactions of this type in §§ 701.2(f)(1), 701.2(f)(2), 701.2(f)(3), 701.2(f)(5), 701.2(f)(6) and 701.2(f)(7) of this part.
              (h) Indirect Offset. An offset transaction unrelated to the article(s) or service(s) exported or to be exported pursuant to the military export sales agreement. See the examples illustrating offset transactions of this type in §§ 701.2(f)(4) and 701.2(f)(8) of this part.
              [59 FR 61796, Dec. 2, 1994, as amended at 74 FR 68140, Dec. 23, 2009; 81 FR 10474, Mar. 1, 2016]

              § 701.3
              Applicability and scope.
              (a) This part applies to U.S. firms entering contracts that are subject to an offset agreement exceeding $5,000,000 in value and that are for the sale to a foreign country or foreign firm of:
              (1) Defense articles and/or defense services as defined by the Arms Export Control Act and International Traffic in Arms Regulations; or
              (2) Items controlled under an Export Control Classification Number (ECCN) that has the numeral “6” as its third character in the Commerce Control List found in supplement no. 1 to part 774 of this chapter other than semi-submersible and submersible vessels specially designed for cargo transport and parts, components, accessories and attachments specially designed therefor controlled under ECCN 8A620.b; test, inspection and production equipment controlled in ECCN 8B620.b; software controlled in ECCN 8D620.b and technology controlled in ECCN 8E620.b.
              (b) This rule applies to all offset transactions completed in performance of existing offset commitments since January 1, 1993 for which offset credit of $250,000 or more has been claimed from the foreign representative, and new offset agreements entered into since that time.
              [59 FR 61796, Dec. 2, 1994, as amended at 81 FR 10474, Mar. 1, 2016]

              § 701.4
              Procedures.
              (a) Reporting period. The Department of Commerce publishes a notice in the Federal Register annually reminding the public that U.S. firms are required to report annually on contracts for the sale of defense-related items or defense-related services to foreign governments or foreign firms that are subject to offset agreements exceeding $5,000,000 in value. U.S. firms are also required to report annually on offset transactions completed in performance of existing offset commitments for which offset credit of $250,000 or more has been claimed from the foreign representative. Such reports must be submitted to the Department of Commerce no later than June 15 of each year and must contain offset agreement and transaction data for the previous calendar year.
              (b) Reporting instructions. (1) U.S. firms must only report on offset agreements they have entered into with a foreign customer. U.S. firms must report offset transactions that they are directly responsible for reporting to the foreign customer, regardless of who performs the transaction (i.e., prime contractors must report for their subcontractors if the subcontractors are not a direct party to the offset agreement).

              (2) Reports must be submitted in hardcopy to the Offset Program Manager, U.S. Department of Commerce, Bureau of Industry and Security, Room 3876, 14th Street and Constitution Avenue, NW., Washington, DC 20230, and as an e-mail attachment to OffsetReport@bis.doc.gov. E-mail attachments must include the information in a computerized spreadsheet or database format. If unable to submit a report in computerized format, companies should contact the Offset Program Manager for guidance. All submissions must include a point of contact (name and telephone number) and must be submitted by a company official authorized to provide such information.
              (c) Reports must include the information described below. Any necessary comments or explanations relating to the information shall be footnoted and supplied on separate sheets attached to the reports.
              (1) Reporting on offset agreements. U.S. firms shall provide an itemized list of new offset agreements entered into during the reporting period, including the information about each such agreement described in paragraphs (c)(1)(i) through (c)(1)(ix) of this section.

              (i) Name of foreign country. Identify the country of the foreign entity involved in the military export sale associated with the offset agreement.
              (ii) Description of the military export sale. Provide a name and description of the defense article and/or defense service referenced in the military export sale, as well as the date (month and year) that the related offset agreement was signed.
              (iii) Military export sale classification. Identify the six-digit North American Industry Classification System (“NAICS”) code(s) associated with the military export sale. Refer to U.S. Census Bureau's U.S. NAICS Manual for a listing of applicable NAICS codes (http://www.census.gov/epcd/www/naics.html). Paragraphs (c)(1)(iii)(A) through (c)(1)(iii)(E) of this section provide examples that illustrate how to select the appropriate NAICS code(s).
              (A) Example 1. Company A enters into an offset agreement associated with the sale of 24 fighter aircraft and guided missiles to country B. Fighter aircraft manufacturing is classified in the NAICS as NAICS 336411, Aircraft Manufacturing. Guided missiles are classified in the NAICS as NAICS 336414, Guided Missile and Space Vehicle Manufacturing. This military export sale should be classified under NAICS 336411 and NAICS 336414.
              (B) Example 2. Company B enters into an offset agreement associated with the sale of a navigation system for a fleet of military aircraft to country C. Navigation system manufacturing is classified in the NAICS as NAICS 334511, Search, Detection, Navigation, Guidance, Aeronautical, and Nautical System and Instrument Manufacturing. This military export sale should be classified under NAICS 334511.
              (C) Example 3. Company C enters into an offset agreement associated with the sale of radio communication equipment to country D. Radio communication equipment is classified in the NAICS as NAICS 334220, Radio and Television Broadcasting and Wireless Communication Equipment Manufacturing. This military export sale should be classified under NAICS 334220.
              (D) Example 4. Company D enters into an offset agreement associated with the sale of 30 aircraft engines to country E. Aircraft engines are classified in the NAICS as NAICS 336412, Aircraft Engine and Engine Parts Manufacturing. This military export sale should be classified under NAICS 336412.
              (E) Example 5. Company E enters into an offset agreement associated with the sale of armored vehicles to country F. Armored vehicles are classified in the NAICS as NAICS 336992, Military Armored Vehicle, Tank, and Tank Component Manufacturing. This military export sale should be classified under NAICS 336992.
              (iv) Foreign party to offset agreement. Identify the foreign government agency or branch that is the signatory to the offset agreement.
              (v) Military export sale value. Provide the U.S. dollar value of the military export sale. Should the military export sale involve more than one NAICS code, please separately list the values associated with each NAICS code.
              (vi) Offset agreement value. Provide the U.S. dollar value of the offset agreement.
              (vii) Offset agreement term. Identify the term of the offset agreement in months.
              (viii) Offset agreement performance measures. Identify each category that describes the offset agreement's performance measures: best efforts, accomplishment of obligation, or other (please describe).
              (ix) Offset agreement penalties for non-performance. Identify each category that describes the offset agreement's penalties for non-performance. For example, the agreement may include penalties such as liquidated damages, debarment from future contracts, added offset requirements, fees, commissions, bank credit guarantees, or other (please describe).
              (2) Reporting on offset transactions. U.S. firms shall provide an itemized list of offset transactions completed during the reporting period, including the elements listed in paragraphs (c)(2)(i) through (c)(2)(x) of this section for each such transaction (numerical estimates are acceptable when actual figures are unavailable; estimated figures shall be followed by the letter “E”).
              (i) Name of foreign country. Identify the country of the foreign entity involved in the military export sale associated with the offset transaction.
              (ii) Description of the military export sale. Provide a name and description of the defense article and/or defense service referenced in the military export sale associated with the offset transaction, as well as the date the offset agreement was signed (month and year).
              (iii) Offset transaction category. Identify each category that describes the offset transaction as co-production, technology transfer, subcontracting, training, licensing of production, investment, purchasing, credit assistance or other (please describe).
              (iv) Offset transaction classification. Identify the six-digit NAICS code(s) associated with the offset transaction. Refer to U.S. Census Bureau's U.S. NAICS Manual for a listing of applicable NAICS codes (http://www.census.gov/epcd/www/naics.html). Paragraphs (c)(2)(iv)(A) through (c)(2)(iv)(E) of this section provide examples that illustrate how to select the appropriate NAICS code in the instances described therein.
              (A) Example 1. Company A completes an offset transaction by co-producing aircraft engines in country B. Aircraft engine manufacturing is classified in the NAICS as NAICS 336412, Aircraft Engine and Engine Parts Manufacturing. This offset transaction should be classified under NAICS 336412.
              (B) Example 2. Company B completes an offset transaction by licensing the production of automotive electrical switches in country C. Company B also assists in structuring a wholesale distribution network for these products. Automotive electrical switch manufacturing is classified in the NAICS as NAICS 335931, Current Carrying Wiring Device Manufacturing, and the wholesale distribution network is classified in the NAICS as NAICS 423120, Motor Vehicle Supplies and New Parts Merchant Wholesalers. This offset transaction should be classified under NAICS 335931 and NAICS 423120.
              (C) Example 3. Company C completes an offset transaction by transferring technology to establish a biotechnology research center in country D. Biotechnology research and development is classified in the NAICS as NAICS 541711, Research and Development in Biotechnology. This offset transaction should be classified under NAICS 541711.
              (D) Example 4. Company D completes an offset transaction by purchasing steel forgings from a steel mill in country E. Steel forgings are classified in the NAICS as NAICS 331111, Iron and Steel Mills. This offset transaction should be classified under NAICS 331111.
              (E) Example 5. Company E completes an offset transaction by providing training assistance services in country F to certain plant managers. Training assistance is classified in the NAICS as NAICS 611430, Professional and Management Development Training. This offset transaction should be classified under NAICS 611430.
              (v) Offset transaction type. Identify the offset transaction as a direct offset transaction, an indirect offset transaction, or a combination of both.
              (vi) Name of offset performing entity. Identify, by name, the entity performing the offset transaction on behalf of the U.S. entity that entered into the offset agreement.
              (vii) Name of offset receiving entity. Identify the foreign entity receiving benefits from the offset transaction.
              (viii) Actual offset value. Provide the U.S. dollar value of the offset transaction without taking into account multipliers or intangible factors. Should the offset transaction involve more than one NAICS code, please list the U.S. dollar values associated with each NAICS code.
              (ix) Offset credit value. Provide the U.S. dollar value credits claimed by the offset performing entity, including any multipliers or intangible factors.
              (x) Offset transaction performance location. Name the country where each offset transaction was fulfilled, such as the purchasing country, the United States, or a third country.
              [74 FR 68141, Dec. 23, 2009]

              § 701.5
              Confidentiality.
              (a) As provided by § 309(c) of the Defense Production Act of 1950, as amended, BIS shall not publicly disclose the information it receives pursuant to this part, unless the firm furnishing the information subsequently specifically authorizes public disclosure.
              (b) Public disclosure must be authorized in writing by an official of the firm competent to make such an authorization.
              (c) Nothing in this provision shall prevent the use of data aggregated from information provided pursuant to this part in the summary report to the Congress described in § 701.1.

              § 701.6
              Violations, penalties, and remedies.
              (a) Willful violation of the Defense Production Act may result in punishment by fine or imprisonment, or both. The maximum penalty provided by the Defense Production Act is a $10,000 fine, or one year in prison, or both.
              (b) The Government may seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act and this regulation.
              [74 FR 68141, Dec. 23, 2009]

            Pt. 702
            PART 702—INDUSTRIAL BASE SURVEYS—DATA COLLECTIONS

              Sec.
              702.1
              Introduction.
              702.2
              Scope and purpose of surveys—avoiding duplicative requests for information.
              702.3
              Confidential information.
              702.4
              Requirement to comply with surveys or other requests for information.
              702.5
              Consequences of failure to comply.
              702.6
              Definitions.
              Supplement No. 1 to Part 702—General Survey Information

              Authority:
              50 U.S.C. 4501 et seq.; E.O. 13603, 77 FR 16651, 3 CFR, 2012 Comp., p. 225.

              Source:
              80 FR 41430, July 15, 2015, unless otherwise noted.

              § 702.1
              Introduction.

              In accordance with 50 U.S.C. app. 2155, the Bureau of Industry and Security (BIS) may obtain such information from, require such reports and the keeping of such records by, make an inspection of the books, records, and other writings, premises or property of, take the sworn testimony of and administer oaths and affirmations to, any person as may be necessary or appropriate, in its discretion, to the enforcement or the administration of its authorities and responsibilities under the Defense Production Act of 1950 as amended (DPA) and any regulations or orders issued thereunder. BIS's authorities under the DPA (50 U.S.C. app. 2061 et seq.) include authority to collect data via surveys to perform industry studies assessing the capabilities of the United States industrial base to support the national defense and develop policy recommendations to improve both the international competitiveness of specific domestic industries and their ability to meet national defense program needs.

              § 702.2
              Scope and purpose of surveys—avoiding duplicative requests for information.
              (a) BIS will not send any survey to any person for completion unless the scope and purpose of the survey have been established, that scope and purpose are consistent with BIS's authorities under the DPA, and the data requested by the survey does not duplicate adequate and authoritative data already available to BIS from a Federal or other authoritative source.
              (b) BIS personnel of appropriate competence and authority will ensure that the requirements of paragraph (a) of this section are met.

              (c) This section shall not be construed as limiting the criteria that BIS may consider in determining whether to proceed with a survey. This paragraph shall not be construed as replacing or in any way modifying the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

              § 702.3
              Confidential information.
              This section implements section 705(d) of the DPA.

              (a) BIS deems all information submitted in response to a survey issued pursuant to this part to be confidential.

              (b) Any person submitting information in response to a survey issued pursuant to this part may request confidential treatment of that information.
              (c) The President's authority under the DPA to protect confidential information has been delegated to the Under Secretary for Industry and Security. The information described in paragraphs (a) and (b) of this section shall not be published or disclosed unless the Under Secretary for Industry and Security determines that the withholding thereof is contrary to the interest of the national defense.
              (d) Any person convicted of willfully violating the prohibition in paragraph (c) of this section may be fined not more than $10,000 or imprisoned for not more than one year, or both.

              § 702.4
              Requirement to comply with surveys or other requests for information.
              (a) Requirement to comply. Every person who receives a survey or other request for information issued pursuant to this part must submit a complete and adequate response to BIS within the time frame stated on the initial distribution letter or other request for information. Survey response information that does not adhere to the survey question criteria or that contains only aggregate information in place of specified information will be treated as inadequate and therefore noncompliant. BIS may exempt persons from this requirement for the reasons in paragraph (b) of this section, or grant extensions of time to comply as set forth in paragraph (c) of this section. Submitting a request to BIS for an exemption or an extension of time for completion does not suspend the initial deadline required by BIS (or any extended deadline subsequently granted by BIS). Thus, persons who request an exemption or extension of time are advised to proceed as if the response is required by the deadline until advised otherwise by BIS.
              (b) Grounds for exemption. (1) An exemption from the requirements of this section may be granted if the person receiving the survey or other request for information:
              (i) Has no physical presence in the United States of any kind;
              (ii) Does not provide, produce, distribute, utilize, procure, research, develop, consult or advise on, or have any other direct or indirect association with the materials, products, services or technology that are within the scope of the survey;
              (iii) Has ceased business operations more than 12 months prior to receipt of the survey;
              (iv) Has been in business for less than one year; or
              (v) BIS determines that extenuating circumstances exist that make responding impractical.
              (2) BIS may also grant an exemption if, based on the totality of the circumstances, it concludes that compliance would be impractical and/or that requiring compliance would be unduly time intensive.

              (3) Existence of a pre-existing private non-disclosure agreement or information sharing agreement between a person and another party (e.g., customers, suppliers, etc.), does not exempt a person from the obligation to comply with and complete a survey. The authority to conduct the survey and comply with the survey is derived from the DPA, and that statutory obligation to comply supersedes any private agreement.
              (c) Extensions of time to complete. A person who receives a survey or other request for information may request an extension of time to submit the complete response to BIS. BIS may grant such an extension of time, if, in its judgment, circumstances are such that additional time reasonably is needed, the extension would not jeopardize timely completion of BIS's overall analysis, and the person is making reasonable progress towards completing the survey or response to the other request for information. Generally, extensions will be for no more than two weeks. A person who receives a survey or other request for information may request successive extensions if the person believes that it continues to have a legitimate need for additional time to complete the survey. BIS will not grant extensions that would jeopardize the performance and timely completion of its industrial base assessments.

              (d) Procedure for requesting exemptions or extensions of time. Requests for exemptions or extensions of time must be made to BIS at the telephone number, email address or BIS physical address provided in the initial distribution letter for a survey or in the other request for information. A request for an exemption must provide factual information and documentation that are adequate for BIS to determine that one or more of the criteria stated in paragraph (b) or (c) of this section are met.
              (e) Responses that are incomplete or inadequate. BIS may return responses that are incomplete or inadequate to the person for prompt completion. BIS will specify the required period of time permitted for completion and submission of the revised survey.

              § 702.5
              Consequences of failure to comply.
              (a) Civil. If any person fails to comply with the requirements of § 702.4, BIS may issue a subpoena requiring that person to submit the information called for in the survey. In the case of contumacy or refusal to obey such a subpoena, the U.S. Government may apply for an order by the United States district court in a district where that person resides or transacts business that would compel the person to submit the completed survey.
              (b) Criminal. In accordance with 50 U.S.C. app. 2155, any person who willfully fails to comply with § 702.4, may, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both.

              § 702.6
              Definitions.
              The definitions in this section apply throughout this part.

                Confidential. A description of information that is subject to the disclosure prohibitions of the DPA (50 U.S.C. app. 2155(d)).

                Initial distribution letter. A letter that BIS sends to a person that has been identified by the U.S. Government as a supplier or customer of materials, products or services used for activities of the industry that is the focus of a survey. The letter describes the survey's primary objectives, how survey results will assist the U.S. Government, and the confidential treatment of the information submitted. The letter also includes BIS contact information.

                Person. The term “person” includes:
              (1) An individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative thereof;
              (2) Any State or local government or agency thereof;

              (3) The Government of the United States, of the District of Columbia, of any commonwealth, territory or possession of the United States, or any department, agency or commission thereof.

                Note to the definition of “person.”
                Paragraph (1) of this definition is not limited to commercial or for-profit organizations. For example, the term “any other organized group of persons” may encompass labor unions, academic institutions, charitable organizations or any group of persons who are organized in some manner. The term corporation is not limited to publicly traded corporations or corporations that exist for the purpose of making a profit.

                Survey. A questionnaire or other request for information that collects detailed information and data to support both the assessment of a particular industrial sector or technology and the development of a corresponding study.

              Pt. 702, Supp. No. 1
              Supplement No. 1 to Part 702—General Survey Information
              This supplement provides general information about surveys and the content of the typical survey. The content of this supplement is purely an example of a typical survey, and in no way limits the content that may appear in a specific Bureau of Industry and Security (BIS)-issued survey. Procedures and content vary from survey to survey, and as such, there is no set template to follow. Nonetheless, BIS is offering this information as a basic guide to some elements of a survey.
              Survey Structure
              Most surveys include the following sections: Cover Page; Table of Contents; General Instructions; Glossary of Terms; Organizational Information, and sector-specific sections.

              —The cover page typically includes the title of the survey, its scope, an explanation of the legal requirement to comply, the burden estimate for compliance with the survey, the Office of Management and Budget (OMB) control number, and the survey date of expiration.

              —The General Instructions section normally includes process steps necessary for a person's survey submittal. These include but are not limited to instructions for survey completion, survey support staff point-of-contact information, the name and address of the presiding BIS official, and instructions for both survey certification and submittal.
              —The Glossary of Terms section explains terms contained in the survey. Terms contained in the survey may be unique to the subject matter of the industry assessment, and therefore may change in meaning from survey to survey. Therefore, it is important to follow the specific instructions and defined terms contained in the specific survey you receive, regardless of any previous survey you might have completed.

              —The Organization Information section requests information related to the person in receipt of the survey, including address information, the source level of response (e.g., facility, business unit, division, corporate consolidated, etc.), point of contact details, and other pertinent contact information.
              The survey is generally organized in a question and answer format and is presented on an electronic survey system. Each survey is specially tailored to collect the specific information requested. Therefore, specific detailed information is what should be submitted in response to a survey requesting such information.
              —For example, if we ask for a listing of your customers that order widget A, your response should not be a listing of your entire customer base. Only the information pertaining to customers' ordering widget A is responsive to that kind of question.
              Also note that your reply to a survey request is compulsory, unless you meet the criteria for exemption set forth in the body of the regulation. Therefore, any non-disclosure agreements or similar agreements you may have with your customers or clients are not applicable to a survey's request for information. Compliance with the survey is required by the DPA. Accordingly, compliance with that statutory requirement is paramount to any private agreement you have with your customers or other parties.
              In addition to the aforementioned sections, each survey contains sections tailored to the specific scope of the study, including but not limited to Facility Locations, Products and Services, Inventories, Suppliers and Customers, Challenges and Organizational Outlook, Employment, Operations, Financial Statements, Sales, Research and Development, and Capital Expenditures.
              Examples of survey terms.

                Certification: A section of the survey in which a person (an authorizing official) certifies that the information supplied in response to the survey is complete and correct, to the best of the person's knowledge.

                Facility: A building or the minimum complex of buildings or parts of buildings in which a person operates to serve a particular function, producing revenue and incurring costs for the person. A facility may produce an item of tangible or intangible property or may perform a service. It may encompass a floor or group of floors within a building, a single building, or a group of buildings or structures. Often, a facility is a group of related locations at which employees work, together constituting a profit-and-loss center for the person, and it may be identified by a unique Dun and Bradstreet number.

                Sole source: An organization that is the only source for the supply of parts, components, materials, or services. No alternative U.S. or non-U.S. based supplier exists other than the current supplier.

                Survey template: The data collection instrument supplied by BIS to persons by which survey information is recorded and submitted to BIS. The survey is generally organized in a question and answer format and is presented on an electronic survey system.

                Supplier: An entity from which your organization obtains inputs. A supplier may be another firm with which you have a contractual relationship, or it may be another facility owned by the same parent organization. The inputs may be materials, products or services.

            PARTS 703-704 [RESERVED]

            Pt. 705
            PART 705—EFFECT OF IMPORTED ARTICLES ON THE NATIONAL SECURITY

              Sec.
              705.1
              Definitions.
              705.2
              Purpose.
              705.3
              Commencing an investigation.
              705.4
              Criteria for determining effect of imports on the national security.
              705.5
              Request or application for an investigation.
              705.6
              Confidential information.
              705.7
              Conduct of an investigation.
              705.8
              Public hearings.
              705.9
              Emergency action.
              705.10
              Report of an investigation and recommendation.
              705.11
              Determination by the President and adjustment of imports.
              705.12
              Disposition of an investigation and report to the Congress.

              Supplement No. 1 to Part 705—Requirements for Submissions Requesting Exclusions From the Remedies Instituted in Presidential Proclamation 9705 of March 8, 2018 Adjusting Imports of Steel Articles Into the United States

              Supplement No. 2 to Part 705—Requirements for Submissions Requesting Exclusions From the Remedies Instituted in Presidential Proclamation 9704 of March 8, 2018 to Adjusting Imports of Aluminum Into the United States

              Annex 1 to Supplements No. 1 and 2 of Part 705—Steps for Using Regulations.gov to File Rebuttals and Surrebuttals

              Authority:
              Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862) and Reorg. Plan No. 3 of 1979 (44 FR 69273, December 3, 1979).

              Source:
              47 FR 14693, Apr. 6, 1982, unless otherwise noted. Redesignated at 54 FR 601, Jan. 9, 1989.

              § 705.1
              Definitions.
              As used in this part:

                Department means the United States Department of Commerce and includes the Secretary of Commerce and the Secretary's designees.

                Secretary means the Secretary of Commerce or the Secretary's designees.

                Applicant means the person or entity submitting a request or application for an investigation pursuant to this part.

              § 705.2
              Purpose.
              These regulations set forth the procedures by which the Department shall commence and conduct an investigation to determine the effect on the national security of the imports of any article. Based on this investigation, the Secretary shall make a report and recommendation to the President for action or inaction regarding an adjustment of the imports of the article.

              § 705.3
              Commencing an investigation.
              (a) Upon request of the head of any government department or agency, upon application of an interested party, or upon motion of the Secretary, the Department shall immediately conduct an investigation to determine the effect on the national security of the imports of any article.
              (b) The Secretary shall immediately provide notice to the Secretary of Defense of any investigation initiated under this part.
              [47 FR 14693, Apr. 6, 1982. Redesignated at 54 FR 601, Jan. 9, 1989, and amended at 63 FR 31623, June 10, 1998]

              § 705.4
              Criteria for determining effect of imports on the national security.
              (a) To determine the effect on the national security of the imports of the article under investigation, the Department shall consider the quantity of the article in question or other circumstances related to its import. With regard for the requirements of national security, the Department shall also consider the following:
              (1) Domestic production needed for projected national defense requirements;
              (2) The capacity of domestic industries to meet projected national defense requirements;
              (3) The existing and anticipated availabilities of human resources, products, raw materials, production equipment and facilities, and other supplies and services essential to the national defense;
              (4) The growth requirements of domestic industries to meet national defense requirements and the supplies and services including the investment, exploration and development necessary to assure such growth; and
              (5) Any other relevant factors.
              (b) In recognition of the close relation between the strength of our national economy and the capacity of the United States to meet national security requirements, the Department shall also, with regard for the quantity, availability, character and uses of the imported article under investigation, consider the following:
              (1) The impact of foreign competition on the economic welfare of any domestic industry essential to our national security;
              (2) The displacement of any domestic products causing substantial unemployment, decrease in the revenues of government, loss of investment or specialized skills and productive capacity, or other serious effects; and
              (3) Any other relevant factors that are causing or will cause a weakening of our national economy.

              § 705.5
              Request or application for an investigation.

              (a) A request or application for an investigation shall be in writing. The original and 1 copy shall be filed with the Director, Office of Technology Evaluation, Room H-1093, U.S. Department of Commerce, Washington, DC 20230.
              (b) When a request, application or motion is under investigation, or when an investigation has been completed pursuant to § 705.10 of this part, any subsequently filed request or application concerning imports of the same or related article that does not raise new or different issues may be either consolidated with the investigation in progress as provided in § 705.7(e) of this part, or rejected. In either event, an explanation for taking such action shall be promptly given to the applicant. If the request or application is rejected, it will not be returned unless requested by the applicant.
              (c) Requests or applications shall describe how the quantity, availability, character, and uses of a particular imported article, or other circumstances related to its import, affect the national security, and shall contain the following information to the fullest extent possible:
              (1) Identification of the applicant;
              (2) A precise description of the article;
              (3) Description of the domestic industry affected, including pertinent information regarding companies and their plants, locations, capacity and current output of the industry;
              (4) Pertinent statistics on imports and domestic production showing the quantities and values of the article;
              (5) Nature, sources, and degree of the competition created by imports of the article;
              (6) The effect that imports of the article may have upon the restoration of domestic production capacity in the event of national emergency;
              (7) Employment and special skills involved in the domestic production of the article;
              (8) Extent to which the national economy, employment, investment, specialized skills, and productive capacity is or will be adversely affected;
              (9) Revenues of Federal, State, or local Governments which are or may be adversely affected;
              (10) National security supporting uses of the article including data on applicable contracts or sub-contracts, both past and current; and
              (11) Any other information or advice relevant and material to the subject matter of the investigation.
              (d) Statistical material presented should be, if possible, on a calendar-year basis for sufficient periods of time to indicate trends. Monthly or quarterly data for the latest complete years should be included as well as any other breakdowns which may be pertinent to show seasonal or short-term factors.
              [47 FR 14693, Apr. 6, 1982. Redesignated at 54 FR 601, Jan. 9, 1989, and amended at 63 FR 31623, June 10, 1998; 65 FR 62600, Oct. 19, 2000; 72 FR 25195, May 4, 2007]

              § 705.6
              Confidential information.

              (a) Any information or material which the applicant or any other party desires to submit in confidence at any stage of the investigation that would disclose national security classified information or business confidential information (trade secrets, commercial or financial information, or any other information considered senstitive or privileged), shall be submitted on separate sheets with the clear legend “National Security Classified” or “Business Confidential,” as appropriate, marked at the top of each sheet. Any information or material submitted that is identified as national security classified must be accompanied at the time of filing by a statement indicating the degree of classification, the authority for the classification, and the identity of the classifying entity. By submitting information or material identified as business confidential, the applicant or other party represents that the information is exempted from public disclosure, either by the Freedom of Information Act (5 U.S.C. 552 et seq.) or by some other specific statutory exemption. Any request for business confidential treatment must be accompanied at the time of filing by a statement justifying non-disclosure and referring to the specific legal authority claimed.

              (b) The Department may refuse to accept as business confidential any information or material it considers not intended to be protected under the legal authority claimed by the applicant, or under other applicable legal authority. Any such information or material so refused shall be promptly returned to the submitter and will not be considered. However, such information or material may be resubmitted as non-confidential in which case it will be made part of the public record.

              § 705.7
              Conduct of an investigation.

              (a) If the Department determines that it is appropriate to afford interested parties an opportunity to present information and advice relevant and material to an investigation, a public notice shall be published in the Federal Register soliciting from any interested party written comments, opinions, data, information or advice relative to the investigation. This material shall be submitted as directed within a reasonable time period to be specified in the notice. All material shall be submitted with 6 copies. In addition, public hearings may be held pursuant to § 705.8 of this part.
              (b) All requests and applications filed and all material submitted by interested parties, except information on material that is classified or determined to be confidential as provided in § 705.6 of this part, will be available for public inspection and copying in the Bureau of Industry and SecurityFreedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, Washington, DC 20230, in accordance with regulations published in part 4 of title 15, Code of Federal Regulations.
              (c) Further information may be requested by the Department from other sources through the use of questionnaires, correspondence, or other appropriate means.
              (d) The Department shall, as part of an investigation, seek information and advice from, and consult with, appropriate officers of the United States or their designees, as shall be determined. The Department shall also consult with the Secretary of Defense regarding the methodological and policy questions raised in the investigation. Upon the request of the Secretary, the Secretary of Defense shall provide the Secretary with an assessment of the defense requirements of the article in question. Communications received from agencies of the U.S. government or foreign governments will not be made available for public inspection.
              (e) Any request or application that is filed while an investigation is in progress, concerning imports of the same or related article and raising similar issues, may be consolidated with the request, application or motion that initiated the investigation.
              [47 FR 14693, Apr. 6, 1982. Redesignated at 54 FR 601, Jan. 9, 1989 and amended at 54 FR 19355, May 5, 1989; 63 FR 31623, June 10, 1998]

              § 705.8
              Public hearings.
              (a) If it is deemed appropriate by the Department, public hearings may be held to elicit further information.
              (1) A notice of hearing shall be published in the Federal Register describing the date, time, place, the subject matter of each hearing and any other information relevant to the conduct of the hearing. The name of a person to contact for additional information or to request time to speak at the hearing shall also be included. Public hearings may be held in more than one location.

              (2) Hearings shall be open to the public unless national security classified information will be presented. In that event the presiding officer at the hearing shall close the hearing, as necessary, to all persons not having appropriate security clearances or not otherwise authorized to have access to such information. If it is known in sufficient time prior to the hearing that national security classified information will be presented the notice of hearing published in the Federal Register shall state that national security classified information will be presented and that the hearing will be open only to those persons having appropriate security clearances or otherwise specifically authorized to have access to such information.
              (b) Hearings shall be conducted as follows:
              (1) The Department shall appoint the presiding officer;
              (2) The presiding officer shall determine all procedural matters during the hearing;

              (3) Interested parties may appear, either in person or by representation, and produce oral or written information relevant and material to the subject matter of the investigation;

              (4) Hearings will be fact-finding proceedings without formal pleadings or adverse parties. Formal rules of evidence will not apply;
              (5) After a witness has testified, the presiding officer may question the witness. Questions submitted to the presiding officer in writing by any interested party may, at the discretion of the presiding officer, be posed to the witness. No cross examination of any witness by a party shall be allowed.
              (6) Each hearing will be stenographically reported. Transcripts of the hearing, excluding any national security classified information, may be purchased from the Department at actual cost of duplication, and will be available for public inspection in the Bureau of Industry and Security Freedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, Washington, DC 20230.
              [47 FR 14693, Apr. 6, 1982. Redesignated at 54 FR 601, Jan. 9, 1989 and amended at 54 FR 19355, May 5, 1989; 63 FR 31623, June 10, 1998]

              § 705.9
              Emergency action.
              In emergency situations, or when in the judgment of the Department, national security interests require it, the Department may vary or dispense with any or all of the procedures set forth in § 705.7 of this part.

              § 705.10
              Report of an investigation and recommendation.
              (a) When an investigation conducted pursuant to this part is completed, a report of the investigation shall be promptly prepared.
              (b) The Secretary shall report to the President the findings of the investigation and a recommendation for action or inaction within 270 days after beginning an investigation under this part.

              (c) An Executive Summary of the Secretary's report to the President of an investigation, excluding any classified or proprietary information, shall be published in the Federal Register. Copies of the full report, excluding any classified or proprietary information, will be available for public inspection and copying in the Bureau of Industry and Security Freedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, 14th Street, N.W., Washington, D.C. 20230; tel. (202) 482-5653.
              [63 FR 31623, June 10, 1998]

              § 705.11
              Determination by the President and adjustment of imports.
              (a) Upon the submission of a report to the President by the Secretary under § 705.10(b) of this part, in which the Department has found that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, the President is required by Section 232(c) of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862(c)) to take the following action
              (1) Within 90 days after receiving the report from the Secretary, the President shall determine:
              (i) Whether the President concurs with the Department's finding; and
              (ii) If the President concurs, the nature and duration of the action that must be taken to adjust the imports of the article and its derivatives so that the such imports will not threaten to impair the national security.
              (2) If the President determines to take action under this section, such action must be taken no later than fifteen (15) days after making the determination.
              (3) By no later than thirty (30) days after making the determinations under paragraph (a)(1) of this section, the President shall submit to the Congress a written statement of the reasons why the President has decided to take action, or refused to take action.
              (b) If the action taken by the President under this section is the negotiation of an agreement to limit or restrict the importation into the United States of the article in question, and either no such agreement is entered into within 180 days after making the determination to take action, or an executed agreement is not being carried out or is ineffective in eliminating the threat to the national security, the President shall either:

              (1) Take such other action as deemed necessary to adjust the imports of the article so that such imports will not threaten to impair the national security. Notice of any such additional action taken shall be published in the Federal Register; or

              (2) Not take any additional action. This determination and the reasons on which it is based, shall be published in the Federal Register.

              [63 FR 31623, June 10, 1998]

              § 705.12
              Disposition of an investigation and report to the Congress.

              (a) Upon the disposition of each request, application, or motion made under this part, a report of such disposition shall be submitted by the Secretary to the Congress and published in the Federal Register.

              (b) As required by Section 232(e) of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862(c)), the President shall submit to the Congress an annual report on the operation of this part.
              [63 FR 31623, June 10, 1998]

              Pt. 705, Supp. No. 1
              Supplement No. 1 to Part 705—Requirements for Submissions Requesting Exclusions From the Remedies Instituted in Presidential Proclamation 9705 of March 8, 2018 Adjusting Imports of Steel Articles Into the United States
              On March 8, 2018, the President issued Proclamation 9705 concurring with the findings of the January 11, 2018 report of the Secretary of Commerce on the effects of imports of steel mill articles (steel articles) identified in Proclamation 9705 (“steel”) on the national security and determining that adjusting steel imports through the imposition of duties is necessary so that imports of steel will no longer threaten to impair the national security. Clause 3 of Proclamation 9705 also authorized the Secretary of Commerce, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior Executive Branch officials as appropriate, to grant exclusions from the duties at the request of directly affected parties located in the United States if the steel articles are determined not to be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality or based upon specific national security considerations. On August 29, 2018, the President issued Proclamation 9776. Clause 1 of Proclamation 9776 authorized the Secretary of Commerce, in consultation with the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the United States Trade Representative (USTR), the Assistant to the President for National Security Affairs, the Assistant to the President for Economic Policy, and such other senior Executive Branch officials as the Secretary deems appropriate, to provide relief from the applicable quantitative limitations set forth in Proclamation 9740 and Proclamation 9759 and their accompanying annexes, as amended, at the request of a directly affected party located in the United States for any steel article determined by the Secretary to not be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality. The Secretary is also authorized to provide such relief based upon specific national security considerations.
              (a) Scope. This supplement specifies the requirements and process for how directly affected parties located in the United States may submit requests for exclusions from the duties and quantitative limitations imposed by the President. This supplement also specifies the requirements and process for how parties in the United States may submit objections to submitted exclusion requests for relief from the duties or quantitative limitations imposed by the President, and rebuttals to submitted objections and surrebuttals (collectively, “232 submissions”). This supplement identifies the time periods for such submissions, the methods of submission, and the information that must be included in such submissions. This supplement references two different methods of submission for 232 submissions: One based on a legacy system used for 232 submissions (www.regulations.gov), and a second system based on a new portal developed by the U.S. Department of Commerce (232 Exclusions Portal), for receiving, managing and responding to 232 submissions. The regulations.gov system must be used for all exclusion requests submitted no later than June 12, 2019. Thereafter, beginning on June 13, 2019, all exclusion requests must be submitted on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). Objections, rebuttals, and surrebuttals must always be filed on the system where the exclusion request was submitted, whether in www.regulations.gov or in the 232 Exclusions Portal. For example, if the exclusion request was submitted in www.regulations.gov, any objections, rebuttals, and surrebuttals pertaining to that exclusion request would also only be submitted in www.regulations.gov. Conversely, if the exclusion request was submitted in the 232 Exclusions Portal, any objections, rebuttals, and surrebuttals pertaining to that exclusion request would also only be submitted in the 232 Exclusions Portal. The use of regulations.gov for the 232 exclusions process will end once all exclusion requests submitted to regulations.gov no later than June 12, 2019 have completed the 232 exclusions process pursuant to this supplement—meaning the exclusion, objection, rebuttal, and surrebuttal process have been completed and the U.S. Department of Commerce has made a final disposition of the 232 submissions.
              (b) Required forms. For any exclusion request to be submitted no later than June 12, 2019, the U.S. Department of Commerce has posted four separate fillable forms on the BIS website at https://www.bis.doc.gov/index.php/232-steel and on the Federal rulemaking portal (http://www.regulations.gov) that are to be used for submitting exclusion requests, objections to exclusion requests, rebuttals, and surrebuttals described in this supplement. On regulations.gov, you can find these four forms for steel exclusion requests, objections to exclusion requests, rebuttals to objections, and surrebuttals by searching for its regulations.gov docket number, which is BIS-2018-0006. For any exclusion request to be submitted on or after June 13, 2019, the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations) includes four web-based forms that are to be used for submitting exclusion requests, objections to exclusion requests, rebuttals, and surrebuttals described in this supplement. On the 232 Exclusions Portal, each web-based form is available on the portal at the bottom of the preceding filing. For example, a party submitting an objection will access the objection form by scrolling to the bottom of the exclusion request, the rebuttal filer will access the rebuttal form by scrolling to the bottom of the objection form, and the surrebuttal filer would access the surrebuttal form by scrolling to the bottom of the rebuttal form. The U.S. Department of Commerce requires requesters and objectors to use the appropriate form as specified under paragraphs (b)(1) and (2) of this supplement for submitting exclusion requests and objections to submitted exclusion requests, and the forms specified under paragraphs (b)(3) and (4) of this supplement for submitting rebuttals and surrebuttals. In addition, submitters of exclusion requests, objections to submitted exclusion requests, rebuttals, and surrebuttals to the 232 Exclusions Portal will be required to complete a web-based registration on the 232 Exclusions Portal prior to submitting any documents. In order to register, submitters will be required to provide an email and establish a password for the account. After completing the registration, submitters will be able to login to an account on the 232 Exclusions Portal and submit exclusion requests, objections, rebuttals and surrebuttal documents.
              (1) Form required for submitting exclusion requests. The full name of the form used for submitting exclusion requests is Request for Exclusion from Remedies: Section 232 National Security Investigation of Steel Imports. The Title in www.regulations.gov is Exclusion Request—Steel and is posted under ID # BIS-2018-0006-0002. The Title of the web-based fillable form in the 232 Exclusions Portal is Exclusion Request.

              (2) Form required for submitting objections to submitted exclusion requests. The name of the form used for submitting objections to submitted exclusion requests is Objection Filing to Posted Section 232 Exclusion Request: Steel. The Title in www.regulations.gov is Objection Filing—Steel and is posted under ID # BIS-2018-0006-0003. The Title of the web-based fillable form in the 232 Exclusions Portal is Objection.

              (3) Form required for submitting rebuttals. The name of the form used for submitting rebuttals to objections is Rebuttal to Objection Received for Section 232 Exclusion Request: Steel. The Title in www.regulations.gov is Rebuttal Filing—Steel and is posted under ID # BIS-2018-0006-45144. The Title of the web-based fillable form in the 232 Exclusions Portal is Rebuttal.

              (4) Form required for submitting surrebuttals. The name of the form used for submitting surrebuttals to objections is Surrebuttal to Rebuttal Received on Section 232 Objection: Steel. The Title in www.regulations.gov is Surrebuttal Filing—Steel and is posted under ID # BIS-2018-0006-45145. The Title of the web-based fillable form in the 232 Exclusions Portal is Surrebuttal.

                Note to paragraphs (b)(1) through (4):
                On the 232 Exclusions Portal, each exclusion request is assigned a distinct ID #, which is also used with its associated 232 submissions, but preceded with an acronym indicating the file type: Exclusion Requests (ER ID #), Objection (OF ID #), Rebuttals (RB ID #) and Surrebuttals (SR ID #). For an example of the four possible types of 232 submissions associated with a single exclusion request, you could have ER ID 237, OF ID 237, RB ID 237 and SR ID 237. The 232 Exclusions Portal will automatically assign the two letter designator depending on the type of web-based form being submitted in the portal and will assign an ID number to the original exclusion request and that ID number will be common to any objection, rebuttal, or surrebuttal submitted pertaining to the same exclusion request.

              (5) Public disclosure and information protected from public disclosure. (i) Information submitted in 232 submissions will be subject to public review and made available for public inspection and copying, except for the information described in paragraph (b)(5)(iii) of this supplement. Individuals and organizations must fully complete the relevant forms.
              (ii) Information not subject to public disclosure should not be submitted. Personally identifiable information, including social security numbers and employer identification numbers, should not be provided. Information that is subject to government-imposed access and dissemination or other specific national security controls, e.g., classified information or information that has U.S. Government restrictions on dissemination to non-U.S. citizens or other categories of persons that would prohibit public disclosure of the information, may not be included in 232 submissions. Individuals and organizations that have confidential business information (“CBI”) that they believe relevant to the Secretary's consideration of the 232 submission should so indicate in the appropriate field of the relevant form, or on the rebuttal or surrebuttal submission, following the procedures in paragraph (b)(5)(iii) of this supplement.
              (iii) Procedures for identifying, but not disclosing confidential or proprietary business information (CBI) in the public version, and procedures for submitting CBI. For persons seeking to submit confidential or proprietary business information (CBI), the 232 submission available to the public must contain a summary of the CBI in sufficient detail to permit a reasonable understanding of the substance of the information. If the submitting person claims that summarization is not possible, the claim must be accompanied by a full explanation of the reasons supporting that claim. Generally, numerical data will be considered adequately summarized if grouped or presented in terms of indices or figures within 10 percent of the actual figure. If an individual portion of the numerical data is voluminous (e.g., 5 pages of numerical data), at least one percent of the numerical data, representative of that portion, must be summarized. In order to submit CBI that is not for public release as a separate email submission to the U.S. Department of Commerce, you must follow the procedures in paragraphs (b)(3)(iii)(A)-(C) of this supplement to assist the U.S. Department of Commerce in identifying these submissions and associating these submissions with the respective 232 submission posted in regulations.gov. Submitters with classified information should contact the U.S. Department of Commerce for instructions on the appropriate methods to send this type of information. If you are submitting a rebuttal or a surrebuttal, Annex 1 to Supplements No. 1 and 2 includes additional guidance for submitting CBI.

              (A) On the same day that you submit your 232 submission in www.regulations.gov or in the 232 Exclusions Portal, send an email to the U.S. Department of Commerce. The email address used is different depending on the type of submission the emailed CBI is for, as follows: CBI for rebuttals use 232rebuttals@doc.gov; and CBI for surrebuttals use 232surrebuttals@doc.gov.

              (B) For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted no later than June 12, 2019, the email subject line must only include the original regulations.gov exclusion request ID # (BIS-2018-000X-XXXXX) and the body of the email must include the 11-digit alphanumeric tracking number (XXX-XXXX-XXXX) you received from regulations.gov when you successfully submitted your rebuttal, or surrebuttal. For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted on or after June 13, 2019, the email subject line must only include the original 232 Exclusions Portal Exclusion Request (ER) ID # and the body of the email must include the 232 Exclusions Portal Rebuttal (RB) ID #, or Surrebuttal (SR) ID # you received from the 232 Exclusions Portal when you successfully submitted your rebuttal or surrebuttal. These naming conventions used in www.regulations.gov and in the 232 Exclusions Portal, respectively, will assist the U.S. Department of Commerce to associate the CBI that will not be posted in regulations.gov or in the 232 Exclusions Portal, with the information included in the public submission.

              (C) Submit the CBI as an attachment to that email. The CBI is limited to a maximum of 5 pages per rebuttal or surrebuttal. The email is to be limited to sending your CBI. All other information for the public submission, and public versions of the CBI, where appropriate, for a 232 submission must be submitted using www.regulations.gov or in the 232 Exclusions Portal following the procedures identified in this supplement, as appropriate.

                Note to paragraph (b) for Submission of Supporting Documents (Attachments):
                Supporting attachments must be emailed as PDF documents.

              (c) Exclusion requests. (1) Who may submit an exclusion request? Only directly affected individuals or organizations located in the United States may submit an exclusion request. An individual or organization is “directly affected” if they are using steel in business activities (e.g., construction, manufacturing, or supplying steel product to users) in the United States.
              (2) Identification of exclusion requests. The file name of the submission must include the submitter's name, date of submission, and the 10-digit Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting number. For example, if Company A is submitting an exclusion request on June 1, 2018, the file should be named as follows: “Company A exclusion request of 6-1-18 for 7207200045 HTSUS.” Separate exclusion requests must be submitted for steel products with chemistry by percentage breakdown by weight, metallurgical properties, surface quality (e.g., galvanized, coated), and distinct critical dimensions (e.g., 0.25-inch rebar, 0.5-inch rebar, 0.5-inch sheet, or 0.75 sheet) covered by a common HTSUS subheading. The exclusion request forms allow for minimum and maximum dimensions. Ranges are acceptable if the manufacturing process permits small tolerances. A permissible range must be within the minimum and maximum range that is specified in the tariff provision and applicable legal notes for the provision. Separate exclusion requests must also be submitted for products falling in more than one 10-digit HTSUS statistical reporting number. The U.S. Department of Commerce will approve exclusions on a product basis, and the approvals will be limited to the individual or organization that submitted the specific exclusion request, unless Commerce approves a broader application of the product-based exclusion request to apply to additional importers. Other directly affected individuals or organizations located in the United States that wish to submit an exclusion request for a steel product that has already been the subject of an approved exclusion request may submit an exclusion request under this supplement. These additional exclusion requests by other directly affected individuals or organizations in the United States are not required to reference the previously approved exclusion but are advised to do so, if they want Commerce to take that into account when reviewing a subsequent exclusion request. Directly affected individuals and organizations in the United States will not be precluded from submitting a request for exclusion of a product even though an exclusion request submitted for that product by another requester or that requester was denied or is no longer valid.

                Note to paragraph (c)(2):
                For directly affected individuals or organizations located in the United States seeking exclusions from quantitative limitations imposed on certain countries, the requester must select the field on the exclusion form to indicate that the exclusion request is for importing from a country subject to a quantitative limitation. In addition to selecting this field on the exclusion request form, a requester must provide information that it believes supports allowing the requester to import steel that may otherwise exceed the quantitative limitation for this country. For example, the requester may indicate it believes the steel identified in the exclusion request is not available from any U.S. suppliers, and indicate that the quantitative limitation has been exceeded or will likely soon be exceeded leading to this individual or organization not being able to import or otherwise obtain (from any other country) the needed steel. Providing information as part of the exclusion requests that supports these types of statements is required for the U.S. Department of Commerce to consider these types of exclusion requests.

              (3) Where to submit exclusion requests? All exclusion requests submitted no later than June 12, 2019 must be in electronic form and submitted to the Federal rulemaking portal (http://www.regulations.gov). You can find the interim final rule that added this supplement by searching for the regulations.gov docket number, which is BIS-2018-0006. All exclusion requests submitted on or after June 13, 2019, must be submitted directly on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (4) No time limit for submitting exclusion requests. Exclusion requests may be submitted at any time, but the date of submission determines whether an exclusion request must be submitted via regulations.gov or via the new 232 Exclusions Portal, as indicated in paragraph (c)(3) of this supplement. The U.S. Department of Commerce will reject, and require resubmission using the correct submission method, of any exclusion request that does not use the correct submission method specified in this supplement based on the date of submission. Strict adherence to the correct submission method based on the date of an exclusion request's submission is required to ensure the efficient, fair, and transparent processing of exclusion requests during the transition period by the U.S. Department of Commerce, and to enable the Department to complete the transition to the 232 Exclusions Portal as quickly as possible.
              (5) Substance of exclusion requests. An exclusion request must specify the business activities in the United States within which the requester is engaged that qualify the individual or organization to be directly affected and thus eligible to submit an exclusion request. The request should clearly identify, and provide support for, the basis upon which the exclusion is sought. An exclusion will only be granted if an article is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for specific national security considerations.
              (6) Criteria used to review exclusion requests. The U.S. Department of Commerce will review each exclusion request to determine whether an article described in an exclusion request meets any of the following three criteria: the article is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for specific national security considerations. To provide additional context on the meaning and application of the criteria, paragraphs (c)(6)(i)-(iii) of this supplement define keys terms used in the review criteria and provide illustrative application examples. The U.S. Department of Commerce will use the same criteria identified in paragraphs (c)(6)(i)-(iii) of this supplement when determining whether it is warranted to approve broader product-based exclusions based on trends the Department may see over time with 232 submissions. The public is not permitted to request broader product-based exclusions that would apply to all importers, because the Department makes these determinations over time by evaluating the macro trends in 232 submissions.
              (i) Not produced in the United States in a sufficient and reasonably available amount. The exclusion review criterion “not produced in the United States in a sufficient and reasonably available amount” means that the amount of steel that is needed by the end user requesting the exclusion is not available immediately in the United States to meet its specified business activities. “Immediately” means whether a product is currently being produced or could be produced “within eight weeks” in the amount needed in the business activities of the user of steel in the United States described in the exclusion request. The U.S. Department of Commerce reviews an exclusion request based on the information included in the exclusion request, any objections to an exclusion request, any rebuttals to the objections made by an individual or organization that submitted the exclusion request, and any surrebuttals. If the Department denies an exclusion request based on a representation made by an objector, which later is determined to be inaccurate (e.g., if the objector was not able to meet the requirement of being able to “immediately” supply the steel that was included in a denied exclusion request in the quantity needed), the requester may submit a new exclusion request that refers back to the original denied exclusion request and explains that the objector was not able to supply the steel. The U.S. Department of Commerce would take that into account in reviewing a subsequent exclusion request.
              (ii) Not produced in the United States in a satisfactory quality. The exclusion review criterion “not produced in the United States in a satisfactory quality” does not mean the steel needs to be identical, but it does need to be equivalent as a substitute product. “Substitute product” for purposes of this review criterion means that the steel being produced by an objector can meet “immediately” (see paragraph (c)(6)(i) of this supplement) the quality (e.g., industry specs or internal company quality controls or standards), regulatory, or testing standards, in order for the U.S. produced steel to be used in that business activity in the United States by that end user. For example, if a U.S. business activity requires that steel plates to be provided must meet certain military testing and military specification standards in order to be used in military combat vehicles, that requirement would be taken into account when reviewing the exclusion request and any objections, rebuttals and surrebuttals submitted. As another example, if a U.S. business activity requires that steel tubing to be provided must meet certain Food and Drug Administration (FDA) approvals to be used in medical devices, that requirement would be taken into account when reviewing the exclusion request and any objections, rebuttals, and surrebuttals submitted. Another example would be a food manufacturer that requires tin-plate approval from the U.S. Department of Agriculture (USDA) to make any changes in the tin-plate it uses to make cans for fruit juices. An objector would not have to make steel for use in making the cans that was identical, but it would have to be a “substitute product” meaning it could meet the USDA certification standards.
              (iii) For specific national security considerations. The exclusion review criterion “or for specific national security considerations” is intended to allow the U.S. Department of Commerce, in consultation with other parts of the U.S. Government as warranted, to make determinations whether a particular exclusion request should be approved based on specific national security considerations. For example, if the steel included in an exclusion request is needed by a U.S. defense contractor for making critical items for use in a military weapons platform for the U.S. Department of Defense, and the duty or quantitative limitation will prevent the military weapons platform from being produced, the exclusion will likely be granted. The U.S. Department of Commerce, in consultation with the other parts of the U.S. Government as warranted, can consider other impacts to U.S. national security that may result from not approving an exclusion, e.g., the unintended impacts that may occur in other downstream industries using steel, but in such cases the demonstrated concern with U.S. national security would need to be tangible and clearly explained and ultimately determined by the U.S. Government.
              (d) Objections to submitted exclusion requests. (1) Who may submit an objection to a submitted exclusion request? Any individual or organization that manufactures steel articles in the United States may file objections to steel exclusion requests, but the U.S. Department of Commerce will only consider information directly related to the submitted exclusion request that is the subject of the objection.
              (2) Identification of objections to submitted exclusion requests—(i) Objections to submitted exclusion requests in regulations.gov. When submitting an objection to an exclusion request that was submitted no later than June 12, 2019, the objector must locate the exclusion request and submit a comment on the submitted exclusion request in regulations.gov. The file name of the objection submission should include the objector's name, date of submission of the objection, name of the organization that submitted the exclusion request, and date the exclusion request was posted. For example, if Company B is submitting on April 1, 2018, an objection to an exclusion request submitted by Company A on March 15, 2018, the file should be named: “Company B objection_4-1-18 for Company A exclusion request_3-15-18.” In regulations.gov once an objection to a submitted exclusion request is posted, the objection will appear as a document under the related exclusion request.
              (ii) Objections to submitted exclusion requests in the 232 Exclusions Portal. When submitting an objection to a submitted exclusion request that was submitted on or after June 13, 2019, the objector must locate the exclusion request and submit the objection in response to the request directly in the 232 Exclusions Portal. Once the relevant exclusion request has been located, an individual or organization that would like to submit an objection will access the objection form by scrolling to the bottom of the exclusion request form and then filling out the web-based form for submitting their objection to the exclusion request in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (3) Time limit for submitting objections to submitted exclusions requests. All objections to submitted exclusion requests that were submitted no later than June 12, 2019 must be in electronic form and submitted to the Federal rulemaking portal (http://www.regulations.gov) no later than 30 days after the related exclusion request is posted. All objections to submitted exclusion requests that were submitted on or after June 13, 2019, must be submitted directly on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations) no later than 30 days after the related exclusion request is posted.
              (4) Substance of objections to submitted exclusion requests. The objection should clearly identify, and provide support for, its opposition to the proposed exclusion, with reference to the specific basis identified in, and the support provided for, the submitted exclusion request. If the objector is asserting that it is not currently producing the steel identified in an exclusion request but can produce the steel within eight weeks (meaning the objector meets the definition of being able to supply the steel “immediately” in order to meet the demand identified in the exclusion request), the objector must identify how it will be able to produce the article within eight weeks. This requirement includes specifying in writing to the U.S. Department of Commerce as part of the objection, the timeline the objector anticipates in order to start or restart production of the steel included in the exclusion request to which it is objecting. For example, a summary timeline that specifies the steps that will occur over the weeks needed to produce that steel would be helpful to include, not only for the U.S. Department of Commerce review of the objection, but also for the requester of the exclusion and its determination whether to file a rebuttal to the objection. The U.S. Department of Commerce understands that in certain cases regulatory approvals, such as from the Environmental Protection Agency (EPA) or some approvals at the state or local level may be required to start or restart production and that some of these types of approvals may be not controllable by an objector.
              (e) Limitations on the size of submissions. Each exclusion request and each objection to a submitted exclusion request is to be limited to a maximum of 25 pages, inclusive of all exhibits and attachments, but exclusive of the respective forms and any CBI provided to the U.S. Department of Commerce. Each attachment to a submission must be less than 10 MB.
              (f) Rebuttal process. Only individuals or organizations that have submitted an exclusion request pursuant to this supplement may submit a rebuttal to any objection(s) posted to their exclusion request in the Federal rulemaking portal (http://www.regulations.gov) or in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). The objections to submitted exclusion requests process identified under paragraph (d) of this supplement already establish a formal response process for steel manufacturers in the United States. The objection process is an important part of ensuring the duties and quantitiative limitations are working as intended to achieve the stated purposes of the President's Proclamations and the objectives of implementing these duties and quantitative limitations to protect U.S. national security interests. In order to enhance the fairness of this process and to allow the individual or organization that submitted an exclusion request to respond to any objections submitted to its exclusion request, this paragraph (f) allows for subsequent written submissions under the rebuttal process.

              (1) Identification of rebuttals—(i) Identification of rebuttals in regulations.gov. When submitting a rebuttal, the individual or organization that submitted the exclusion request submits a comment on the objection submitted to the exclusion request in the Federal rulemaking portal (http://www.regulations.gov). See Annex 1 to Supplements No. 1 and 2 to this part for a five-step process for how to submit rebuttals. Annex 1 describes the naming convention used for identification of rebuttals and the steps needed to identify objections to exclusion requests when using www.regulations.gov to submit a rebuttal. Submitters of rebuttals must follow the steps described in Annex 1, including following the naming convention of rebuttals. In regulations.gov once a rebuttal to an objection to a submitted exclusion request is posted, the rebuttal will appear as a document under the related exclusion request.
              (ii) Identification of rebuttals in 232 Exclusions Portal. When submitting a rebuttal, the individual or organization that submitted the exclusion request will access the rebuttal form by scrolling to the bottom of the objection form and then filling out the web-based form for submitting their rebuttal to the objection in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (2) Format and size limitations for rebuttals. Similar to the exclusions process identified under paragraph (c) of this supplement and the objection process identified under paragraph (d) of this supplement, the rebuttal process requires the submission of a government form as specified in paragraph (b)(3) of this supplement. The rebuttal must be in writing and submitted in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. Each rebuttal is to be limited to a maximum of 10 pages, inclusive of all exhibits and attachments, but exclusive of the rebuttal form and any CBI provided to the U.S. Department of Commerce. Each attachment to a submission must be less than 10 MB.
              (3) Substance of rebuttals. Rebuttals must address an objection to the exclusion request made by the requester. If multiple objections were received on a particular exclusion, the requester may submit a rebuttal to each objector. The most effective rebuttals will be those that aim to correct factual errors or misunderstandings in the objection(s).
              (4) Time limit for submitting rebuttals. The rebuttal period begins on the date the Department opens the rebuttal period after the posting of the last objection in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. This beginning date will be sometime between thirty-one to forty-five days (a fifteen day range) after an exclusion request has been posted. The range of days is needed to account for time needed by the U.S. Department of Commerce to review any objections submitted to determine whether the objections are complete and should be posted in regulations.gov or in the 232 Exclusions Portal. The rebuttal period ends seven days after the rebuttal comment period is opened. This seven day rebuttal period allows for the individual or organization that submitted an exclusion request pursuant to this supplement to submit any written rebuttals that it believes are warranted.

                Note to paragraph (f)(4):
                For exclusion requests that received an objection(s) but for which the U.S. Department of Commerce has not posted a final determination on the exclusion request as of September 11, 2018, the Department will reopen the requests to allow for the submission of rebuttals. The Department will reopen the requests on a rolling basis starting on September 11, 2018, and will seek to complete the reopening process on the date that is seven days after September 18, 2018, to serve as the start date for the review periods identified in paragraph (f)(4) of this supplement for those requests.

              (g) Surrebuttal process. Only individuals or organizations that have a posted objection to a submitted exclusion request pursuant to this supplement may submit a surrebuttal to a rebuttal (see paragraph (f) of this supplement) posted to their objection to an exclusion request in the Federal rulemaking portal (http://www.regulations.gov) or in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). The objections process identified under paragraph (d) of this supplement already establishes a formal response process for steel manufacturers in the United States and is an important part of ensuring the duties and quantitative limitations are working as intended to achieve the stated purposes of the President's Proclamations and the objectives of implementing these duties and quantitative limitations to protect U.S. national security interests. In order to enhance the fairness of this process and to allow the individual or organization that submitted an objection to a submitted exclusion request to respond to any rebuttals submitted pursuant to paragraph (f) of this supplement, paragraph (g) allows for subsequent written submissions under this surrebuttal process.
              (1) Identification of surrebuttals—(i) Identification of surrebuttals in regulations.gov. When submitting a surrebuttal, the individual or organization that submitted the objection to an exclusion request would submit a comment on the submitted rebuttal to the objection submitted in the Federal rulemaking portal (http://www.regulations.gov).
                See Annex 1 to Supplements No. 1 and 2 to this part for a five-step process for how to submit surrebuttals. Annex 1 describes the naming convention used for identification of surrebuttals and the steps needed to identify rebuttals when using www.regulatons.gov to submit a surrebuttal. Submitters of surrebuttals must follow the steps described in Annex 1, including following the naming convention of surrebuttals. In regulations.gov once a surrebuttal to a rebuttal to an objection to a submitted exclusion request is posted, the surrebuttal will appear as a document under the related exclusion request.
              (ii) Identification of surrebuttals in the 232 Exclusions Portal. When submitting a surrebuttal, the individual or organization that submitted the objection will access the surrebuttal form by scrolling to the bottom of the rebuttal form and then filling out the web-based form for submitting their surrebuttal to the rebuttal in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (2) Format and size limitations for surrebuttals. Similar to the exclusions process identified under paragraph (c) of this supplement, the objection process identified under paragraph (d) of this supplement, and the rebuttal process identified under paragraph (f) of this supplement, the surrebuttal process requires the submission of a government form as specified in paragraph (b)(4) of this supplement. The surrebuttal must be in writing and submitted in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. Each surrebuttal is to be limited to a maximum of 10 pages, inclusive of all exhibits and attachments, but exclusive of the surrebuttal form and any CBI provided to the U.S. Department of Commerce. Each attachment to a submission must be less than 10 MB.
              (3) Substance of surrebuttals. Surrebuttals must address a rebuttal to an objection to the exclusion request made by the requester. The most effective surrebuttals will be those that aim to correct factual errors or misunderstandings in the rebuttal to an objection.
              (4) Time limit for submitting surrebuttals. The surrebuttal period begins on the date the Department opens the surrebuttal comment period after the posting of the last rebuttal to an objection to an exclusion request in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. This will be sometime within a fifteen-day range after the rebuttal period has closed. The range of days is needed to account for time needed by the U.S. Department of Commerce to review any rebuttals to objections submitted to determine whether the rebuttals are complete and should be posted in regulations.gov or in the 232 Exclusions Portal. The surrebuttal period ends seven days after the surrebuttal comment period is opened. This seven-day surrebuttal period allows for the individual or organization that submitted an objection to a submitted exclusion request pursuant to this supplement to submit any written surrebuttals that it believes are warranted to respond to a rebuttal.
              (h) Disposition of 232 submissions—(1) Disposition of incomplete submissions. (i) Exclusion requests that do not satisfy the requirements specified in paragraphs (b) and (c) of this supplement will be denied.
              (ii) Objection filings that do not satisfy the requirements specified in paragraphs (b) and (d) will not be considered.
              (iii) Rebuttal filings that do not satisfy the requirements specified in paragraphs (b) and (f) will not be considered.
              (iv) Surrebuttal filings that do not satisfy the requirements specified in paragraphs (b) and (g) will not be considered.
              (2) Disposition of complete submissions—(i) Posting of responses—(A) Responses in regulations.gov. The U.S. Department of Commerce will post responses (decision memos) in regulations.gov to each exclusion request submitted no later than June 12, 2019 under docket number BIS-2018-0006. The U.S. Department of Commerce response to an exclusion request will also be responsive to any of the objection(s), rebuttal(s) and surrebuttal(s) for that submitted exclusion request submitted under docket number BIS-2018-0006.
              (B) Responses in the 232 Exclusions Portal. The U.S. Department of Commerce will post responses (decision memos) in the 232 Exclusions Portal to each exclusion request submitted on or after June 13, 2019. The U.S. Department of Commerce response to an exclusion request will also be responsive to any of the objection(s), rebuttal(s) and surrebuttal(s) for that submitted exclusion request submitted through the 232 Exclusions Portal.
              (ii) Streamlined review process for “No Objection” requests. The U.S. Department of Commerce will grant properly filed exclusion requests which meet the requisite criteria, receive no objections, and present no national security concerns. If an exclusion request's 30-day comment period on regulations.gov or in the 232 Exclusions Portal (based on which submission method was used for the submission of the exclusion request) has expired and no objections have been submitted, BIS will immediately assess the request for any national security concerns. If BIS identifies no national security concerns, it will post a decision granting the exclusion request on regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal.

              (iii) Effective date for approved exclusions and date used for calculating duty refunds—(A) Effective date for approved exclusions. Approved exclusions will be effective five business days after publication of the U.S. Department of Commerce response granting an exclusion in regulations.gov or in the 232 Exclusions Portal, based on which submission method was used for the submission of the exclusion request. Starting on that date, the requester will be able to rely upon the approved exclusion request in calculating the duties owed on the product imported in accordance with the terms listed in the approved exclusion request.
              (B) Contact for obtaining duty refunds. The U.S. Department of Commerce does not provide refunds on tariffs. Any questions on the refund of duties should be directed to CBP.
              (iv) Validity period for exclusion requests. Exclusions will generally be approved for one year, but may be valid for shorter or longer than one year depending on the specifics of the exclusion request; any objections filed; and analysis by the U.S. Department of Commerce and other parts of the U.S. Government, as warranted, of the current supply and demand in the United States, including any limitations or other factors that the Department determines should be considered in order to achieve the national security objectives of the duties and quantitative limitations.
              (A) Examples of what fact patterns may warrant a longer exclusion validity period. Individuals or organizations submitting exclusion requests or objections may specify and are encouraged to specify how long they believe an exclusion may be warranted and specify the rationale for that recommended time period. For example, an individual or organization submitting an exclusion request may request a longer validity period if there are factors outside of their control that may make it warranted to grant a longer period. These factors may include regulatory requirements that make a longer validity period justified, e.g., for an aircraft manufacturer that would require a certain number of years to make a change to an FAA approved type certificate or for a manufacturer of medical items to obtain FDA approval. Business considerations, such as the need for a multi-year contract for steel with strict delivery schedules in order to complete a significant U.S. project by an established deadline, e.g., a large scale oil and gas exploration project, is another illustrative example of the types of considerations that a person submitting an exclusion request may reference.
              (B) Examples of what criteria may warrant a shorter exclusion validity period. Objectors are encouraged to provide their suggestions for how long they believe an appropriate validity period should be for an exclusion request. In certain cases, this may be an objector indicating it has committed to adding new capacity that will be coming online within six months, so a shorter six-month period is warranted. Conversely, if an objector knows it will take two years to obtain appropriate regulatory approvals, financing and/or completing construction to add new capacity, the objector may, in responding to an exclusion that requests a longer validity period, e.g., three years, indicate that although they agree a longer validity period than one year may be warranted in this case, that two years is sufficient.
              (C) None of the illustrative fact patterns identified in paragraphs (h)(2)(iv)(A) or (B) of this supplement will be determinative in and of themselves for establishing the appropriate validity period, but this type of information is helpful for the U.S. Department of Commerce to receive, when warranted, to help determine the appropriate validity period if a period other than one year is requested.
              (3) Review period and implementation of any needed conforming changes—(i) Review period. The review period normally will not exceed 106 days for requests that receive objections, including adjudication of objections submitted on exclusion requests and any rebuttals to objections, and surrebuttals. The estimated 106-day period begins on the day the exclusion request is posted in either regulations.gov or in the 232 Exclusions Portal, and ends once a decision to grant or deny is made on the exclusion request.
              (ii) Coordination with other agencies on approval and implementation. Other agencies of the U.S. Government, such as CBP, will take any additional steps needed to implement an approved exclusion request. These additional steps needed to implement an approved exclusion request are not part of the review criteria used by the U.S. Department of Commerce to determine whether to approve an exclusion request, but are an important component in ensuring the approved exclusion request can be properly implemented. The U.S. Department of Commerce will provide CBP with information that will identify each approved exclusion request pursuant to this supplement. Individuals or organizations whose exclusion requests are approved must report information concerning any applicable exclusion in such form as CBP may require. These exclusion identifiers will be used by importers in the data collected by CBP in order for CBP to determine whether an import is within the scope of an approved exclusion request.
              (i) For further information. If you have questions on this supplement, you may contact Director, Industrial Studies, Office of Technology Evaluation, Bureau of Industry and Security, U.S. Department of Commerce, at (202) 482-5642 or Steel232@bis.doc.gov regarding steel exclusion requests. See Annex 1 to Supplements Nos. 1 and 2 to this part for application issues that are specific to using www.regulations.gov for submitting rebuttals and surrebuttals under these two supplements for exclusion requests submitted no later than June 12, 2019. The U.S. Department of Commerce has posted in regulations.gov training documents to assist your understanding when submitting exclusion requests and objections, including step-by-step screen shots of the process when using regulations.gov. The U.S. Department of Commerce website also includes FAQs, best practices other companies have used for submitting exclusion requests and objections, and helpful checklists. The U.S. Department of Commerce has also included a manual providing instruction on the 232 Exclusions Portal for exclusion requests submitted on or after June 13, 2019, titled 232 Exclusions Portal Comprehensive Guide (“232 Exclusions Guide”) and posted online at (https://www.commerce.gov/page/section-232-investigations) to assist your understanding when making 232 submissions in the 232 Exclusions Portal.
              [83 FR 46056, Sept. 11, 2018, as amended at 84 FR 26757, June 10, 2019]

              Pt. 705, Supp. No. 2
              Supplement No. 2 to Part 705—Requirements for Submissions Requesting Exclusions From the Remedies Instituted in Presidential Proclamation 9704 of March 8, 2018 to Adjusting Imports of Aluminum Into the United States
              On March 8, 2018, the President issued Proclamation 9704 concurring with the findings of the January 17, 2018 report of the Secretary of Commerce on the investigation into the effects of imports of aluminum identified in Proclamation 9704 (“aluminum”) on the national security and determining that adjusting aluminum imports through the imposition of duties is necessary so that imports of aluminum will no longer threaten to impair the national security. Clause 3 of Proclamation 9704 also authorized the Secretary of Commerce, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior Executive Branch officials as appropriate, to grant exclusions from the duties at the request of directly affected parties located in the United States if the aluminum articles are determined not to be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality or based upon specific national security considerations. On August 29, 2018, the President issued Proclamation 9776. Clause 1 of Proclamation 9776 authorized the Secretary of Commerce, in consultation with the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the United States Trade Representative (USTR), the Assistant to the President for National Security Affairs, the Assistant to the President for Economic Policy, and such other senior Executive Branch officials as the Secretary deems appropriate, to provide relief from the applicable quantitative limitations set forth in Proclamation 9704 and Proclamation 9758 and their accompanying annexes, as amended, at the request of a directly affected party located in the United States for any aluminum article determined by the Secretary to not be produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality. The Secretary is also authorized to provide such relief based upon specific national security considerations.
              (a) Scope. This supplement specifies the requirements and process for how directly affected parties located in the United States may submit requests for exclusions from the duties and quantitative limitations imposed by the President. This supplement also specifies the requirements and process for how parties in the United States may submit objections to submitted exclusion requests for relief from the duties or quantitative limitations imposed by the President, and rebuttals to submitted objections and surrebuttals (collectively, “232 submissions”). This supplement identifies the time periods for such submissions, the methods of submission, and the information that must be included in such submissions. This supplement references two different methods of submission for 232 submissions: One based on a legacy system used for 232 submissions (www.regulations.gov), and a second system based on a new portal developed by the U.S. Department of Commerce, (232 Exclusions Portal) for receiving, managing and responding to 232 submissions. The regulations.gov system must be used for all exclusion requests submitted no later than June 12, 2019. Thereafter, beginning on June 13, 2019, all exclusion requests must be submitted on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). Objections, rebuttals, and surrebuttals must always be filed on the system where the exclusion request was submitted whether in www.regulations.gov, or in the 232 Exclusions Portal. For example, if the exclusion request was submitted in www.regulations.gov, any objections, rebuttals, and surrebuttals pertaining to that exclusion request would also only be submitted in www.regulations.gov. Conversely, if the exclusion request was submitted in the 232 Exclusions Portal, any objections, rebuttals, and surrebuttals pertaining to that exclusion request would also only be submitted in the 232 Exclusions Portal. The use of regulations.gov for the 232 exclusions process will end once all exclusion requests submitted to regulations.gov no later than June 12, 2019 have completed the 232 exclusions process pursuant to this supplement—meaning the exclusion, objection, rebuttal, and surrebuttal process have been completed and the U.S. Department of Commerce has made a final disposition of the 232 submissions.
              (b) Required forms. For any exclusion request to be submitted no later than June 12, 2019, the U.S. Department of Commerce has posted four separate fillable forms on the BIS website at https://www.bis.doc.gov/index.php/232-aluminum and on the Federal rulemaking portal (http://www.regulations.gov) that are to be used by organizations for submitting exclusion requests, objections to exclusion requests, rebuttals, and surrebuttals described in this supplement. On regulations.gov, you can find these four forms for aluminum exclusion requests, objections to exclusion requests, rebuttals to objections, and surrebuttals by searching for its regulations.gov docket number, which is BIS-2018-0002. For any exclusion request to be submitted on or after June 13, 2019, the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations) includes four web-based forms that are to be used for submitting exclusion requests, objections to exclusion requests, rebuttals, and surrebuttals described in this supplement. On the 232 Exclusions Portal, each web-based form is available on the portal at the bottom of the preceding filing. For example, a party submitting an objection will access the objection form by scrolling to the bottom of the exclusion request, the rebuttal filer will access the rebuttal form by scrolling to the bottom of the objection form, and the surrebuttal filer would access the surrebuttal form by scrolling to the bottom of the rebuttal form. The U.S. Department of Commerce requires requesters and objectors to use the appropriate form as specified under paragraphs (b)(1) and (2) of this supplement for submitting exclusion requests and objections to submitted exclusion requests, and the forms specified under paragraphs (b)(3) and (4) of this supplement for submitting rebuttals and surrebuttals. In addition, submitters of exclusion requests, objections to submitted exclusion requests, rebuttals, and surrebuttals to the 232 Exclusions Portal will be required to complete a web-based registration on the 232 Exclusions Portal prior to submitting any documents. In order to register, submitters will be required to provide an email and establish a password for the account. After completing the registration, submitters will be able to login to an account on the 232 Exclusions Portal and submit exclusion requests, objections, rebuttals and surrebuttal documents.
              (1) Form required for submitting exclusion requests. The full name of the form used for submitting exclusion requests is Request for Exclusion from Remedies: Section 232 National Security Investigation of Aluminum Imports. The Title in www.regulations.gov is Exclusion Request—Aluminum and is posted under ID # BIS-2018-0002-0002. The Title of the web-based fillable form in the 232 Exclusions Portal is Exclusion Request.

              (2) Form required for submitting objections to submitted exclusion requests. The name of the form used for submitting objections to submitted exclusion requests is Objection Filing to Posted Section 232 Exclusion Request: Aluminum. The Title in www.regulations.gov is Objection Filing—Aluminum and is posted under ID # BIS-2018-0002-0003. The Title of the web-based fillable form in the 232 Exclusions Portal is Objection.

              (3) Form required for submitting rebuttals. The name of the form used for submitting rebuttals to objections is Rebuttal to Objection Received for Section 232 Exclusion Request: Aluminum. The Title in www.regulations.gov is Rebuttal Filing—Aluminum and is posted under ID # BIS-2018-0002-4393. The Title of the web-based fillable form in the 232 Exclusions Portal is Rebuttal.

              (4) Form required for submitting surrebuttals. The name of the form used for submitting surrebuttals to objections is Surrebuttal to Rebuttal Received on Section 232 Objection: Aluminum. The Title in www.regulations.gov is Surrebuttal Filing—Aluminum and is posted under ID # BIS-2018-0002-4394. The Title of the web-based fillable form in the 232 Exclusions Portal is Surrebuttal.

                Note to paragraphs (b)(1) through (4):
                On the 232 Exclusions Portal, each exclusion request is assigned a distinct ID#, which is also used with its associated 232 submissions, but preceded with an acronym identifying the file type: Exclusion Requests (ER ID#), Objection (OF ID#), Rebuttals (RB ID#) and Surrebuttals (SR ID#). For an example of the four possible types of 232 submissions associated with a single exclusion request, you could have ER ID 237, OF ID 237, RB ID 237 and SR ID 237. The 232 Exclusions Portal will automatically assign the two letter designator depending on the type of web-based form being submitted in the portal and will assign an ID number to the original exclusion request and that ID number will be common to any objection, rebuttal, or surrebuttal submitted pertaining to the same exclusion request.

              (5) Public disclosure and information protected from public disclosure. (i) Information submitted in 232 submissions will be subject to public review and made available for public inspection and copying, except for the information described in paragraph (b)(5)(iii) of this supplement. Individuals and organizations must otherwise fully complete the relevant forms.
              (ii) Information not subject to public disclosure should not be submitted. Personally identifiable information, including social security numbers and employer identification numbers, should not be provided. Information that is subject to government-imposed access and dissemination or other specific national security controls, e.g., classified information or information that has U.S. Government restrictions on dissemination to non-U.S. citizens or other categories of persons that would prohibit public disclosure of the information, may not be included in 232 submissions. Individuals and organizations that have confidential business information (“CBI”) that they believe relevant to the Secretary's consideration of the 232 submission should so indicate in the appropriate field of the relevant form, or on the rebuttal or surrebuttal submission, following the procedures in paragraph (b)(5)(iii) of this supplement.
              (iii) Procedures for identifying, but not disclosing, confidential or proprietary business information (CBI) in the public version, and procedures for submitting CBI. For persons seeking to submit CBI, the 232 submission available to the public must contain a summary of the CBI in sufficient detail to permit a reasonable understanding of the substance of the information. If the submitting person claims that summarization is not possible, the claim must be accompanied by a full explanation of the reasons supporting that claim. Generally, numerical data will be considered adequately summarized if grouped or presented in terms of indices or figures within 10 percent of the actual figure. If an individual portion of the numerical data is voluminous (e.g., 5 pages of numerical data), at least one percent of the numerical data, representative of that portion must be summarized. In order to submit CBI that is not for public release as a separate email submission to the U.S. Department of Commerce, you must follow the procedures in paragraphs (b)(3)(iii)(A)-(C) of this supplement to assist the U.S. Department of Commerce in identifying these submissions and associating these submissions with the respective 232 submission posted in regulations.gov. Submitters with classified information should contact the U.S. Department of Commerce for instructions on the appropriate methods to send this type of information. If you are submitting a rebuttal or a surrebuttal, Annex 1 to Supplements No. 1 and 2 includes additional guidance for submitting CBI.

              (A) On the same day that you submit your 232 submission in www.regulations.gov or in the 232 Exclusions Portal, send an email to the U.S. Department of Commerce. The email address used is different depending on the type of submission the emailed CBI is for, as follows: CBI for rebuttals use 232rebuttals@doc.gov; and CBI for surrebuttals use 232surrebuttals@doc.gov.

              (B) For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted no later than June 12, 2019, the email subject line must only include the original regulations.gov exclusion request ID # (BIS-2018-000X-XXXXX) and the body of the email must include the 11-digit alphanumeric tracking number (XXX-XXXX-XXXX) you received from regulations.gov when you successfully submitted your rebuttal, or surrebuttal. For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted on or after June 13, 2019, the email subject line must only include the original 232 Exclusions Portal (Exclusion Request (ER)) ID # and the body of the email must include the 232 Exclusions Portal Rebuttal (RB) ID #, or Surrebuttal (SR) ID# you received from the 232 Exclusions Portal when you successfully submitted your rebuttal, or surrebuttal. These naming conventions used in www.regulations.gov and in the 232 Exclusions Portal, respectively, will assist the U.S. Department of Commerce to associate the CBI that will not be posted in regulations.gov or in the 232 Exclusions Portal, with the information included in the public submission.

              (C) Submit the CBI as an attachment to that email. The CBI is limited to a maximum of 5 pages per rebuttal or surrebuttal. The email is to be limited to sending your CBI. All other information for the public submission, and public versions of the CBI, where appropriate, for a 232 submission must be submitted using www.regulations.gov or in the 232 Exclusions Portal following the procedures identified in this supplement, as appropriate.
              (c) Exclusion requests—(1) Who may submit an exclusion request? Only directly affected individuals or organizations located in the United States may submit an exclusion request. An individual or organization is “directly affected” if they are using aluminum in business activities (e.g., construction, manufacturing, or supplying aluminum product to users) in the United States.
              (2) Identification of exclusion requests. The file name of the submission must include the submitter's name, date of submission, and the 10-digit Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting number. For example, if Company A is submitting an exclusion request on June 1, 2018, the file should be named as follows: “Company A exclusion request of 6-1-18 for 7604293050 HTSUS.” Separate exclusion requests must be submitted for aluminum products with distinct critical dimensions (e.g., 10 mm diameter bar, 15 mm bar, or 20 mm bar) covered by a common HTSUS statistical reporting number. The exclusion request forms do allow for minimum and maximum dimensions. Ranges are acceptable if the manufacturing process permits small tolerances. A permissible range must be within the minimum and maximum range that is specified in the tariff provision and applicable legal notes for the provision. Separate exclusion requests must also be submitted for products falling in more than one 10-digit HTSUS statistical reporting number. The U.S. Department of Commerce will approve exclusions on a product basis and the approvals will be limited to the individual or organization that submitted the specific exclusion request, unless Commerce approves a broader application of the product-based exclusion request to apply to additional importers. Other directly affected individuals or organizations located in the United States that wish to submit an exclusion request for an aluminum product that has already been the subject of an approved exclusion request may submit an exclusion request under this supplement. These additional exclusion requests by other directly affected individuals or organizations in the United States are not required to reference the previously approved exclusion but are advised to do so, if they want Commerce to take that into account when reviewing a subsequent exclusion request. Directly affected individuals and organizations in the United States will not be precluded from submitting a request for exclusion of a product even though an exclusion request submitted for that product by another requester or that requester was denied or is no longer valid.

                Note to paragraph (c)(2):
                For directly affected individuals or organizations located in the United States seeking exclusions from quantitative limitations imposed on certain countries, the requester must select the field on the exclusion form to indicate that the exclusion request is for importing from a country subject to a quantitative limitation. In addition to selecting this field on the exclusion request form, a requester must provide information that it believes supports allowing the requester to import aluminum that may otherwise exceed the quantitative limitation for this country. For example, the requester may indicate it believes the aluminum identified in the exclusion request is not available from any U.S. suppliers, and indicate that the quantitative limitation has been exceeded or will likely soon be exceeded leading to this individual or organization not being able to import or otherwise obtain (from any other country) the needed aluminum. Providing information as part of the exclusion requests that supports these types of statements is required for the U.S. Department of Commerce to consider these types of exclusion requests.

              (3) Where to submit exclusion requests? All exclusion requests submitted no later than June 12, 2019 must be in electronic form and submitted to the Federal rulemaking portal (http://www.regulations.gov). You can find the interim final rule that added this supplement by searching for the regulations.gov docket number, which is BIS-2018-0002. All exclusion requests submitted on or after June 13, 2019, must be submitted directly on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (4) No time limit for submitting exclusion requests. Exclusion requests may be submitted at any time, but the date of submission determines whether an exclusion request must be submitted via regulations.gov or via the new 232 Exclusions Portal, as indicated in paragraph (c)(3) of this supplement. The U.S. Department of Commerce will reject and require resubmission using the correct submission method, of any exclusion request that does not use the correct submission method specified in this supplement based on the date of submission. Strict adherence to the correct submission method based on the date of an exclusion request's submission is required to ensure the efficient, fair, and transparent processing of exclusion requests during the transition period by the U.S. Department of Commerce, and to enable the Department to complete the transition to the 232 Exclusions Portal as quickly as possible.
              (5) Substance of exclusion requests. An exclusion request must specify the business activities in the United States in which the requester is engaged that qualify the individual or organization to be directly affected and thus eligible to submit an exclusion request. The request should clearly identify, and provide support for, the basis upon which the exclusion is sought. An exclusion will only be granted if an article is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for specific national security considerations.
              (6) Criteria used to review exclusion requests. The U.S. Department of Commerce will review each exclusion request to determine whether an article described in an exclusion request meets any of the following three criteria: The article is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for specific national security considerations. To provide additional context on the meaning and application of the criteria, paragraphs (c)(6)(i)-(iii) of this supplement define keys terms used in the review criteria and provide illustrative application examples. The U.S. Department of Commerce will use the same criteria identified in paragraphs (c)(6)(i)-(iii) of this supplement when determining whether it is warranted to approve broader product-based exclusions based on trends the Department may see over time with 232 submissions. The public is not permitted to request broader product-based exclusions that would apply to all importers, because the Department makes these determinations over time by evaluating the macro trends in 232 submissions.
              (i) Not produced in the United States in a sufficient and reasonably available amount. The exclusion review criterion “not produced in the United States in a sufficient and reasonably available amount” means that the amount of aluminum that is needed by the end user requesting the exclusion is not available immediately in the United States to meet its specified business activities. “Immediately” means whether a product is currently being produced or could be produced “within eight weeks” in the amount needed in the business activities of the user of aluminum in the United States described in the exclusion request. The U.S. Department of Commerce reviews an exclusion request based on the information included in the exclusion request, any objections to an exclusion request, any rebuttals to the objections made by an individual or organization that submitted the exclusion request, and any surrebuttals. If the U.S. Department denies an exclusion request based on a representation made by an objector, which later is determined to be inaccurate (e.g., if the objector was not able to meet the requirement of being able to “immediately” supply the aluminum that was included in a denied exclusion request in the quantity needed), the requester may submit a new exclusion request that refers back to the original denied exclusion request and explains that the objector was not able to supply the aluminum. The U.S. Department of Commerce would take that into account in reviewing a subsequent exclusion request.
              (ii) Not produced in the United States in a satisfactory quality. The exclusion review criterion “not produced in the United States in a satisfactory quality” does not mean the aluminum needs to be identical, but it does need to be equivalent as a substitute product. “Substitute product” for purposes of this review criterion means that the aluminum being produced by an objector can meet “immediately” (see paragraph (c)(6)(i) of this supplement) the quality (e.g., industry specs or internal company quality controls or standards), regulatory, or testing standards, in order for the U.S. produced aluminum to be used in that business activity in the United States by that end user. For example, if a U.S. business activity requires that aluminum to be provided must meet certain military testing and military specification standards in order to be used in military aircraft, that requirement would be taken into account when reviewing the exclusion request and any objections, rebuttals, and surrebuttals submitted. Another example, would be a U.S. pharmaceutical manufacturer that requires approval from the Food and Drug Administration (FDA) to make any changes in its aluminum product pill bottle covers. An objector would not have to make aluminum for use in making the product covers that was identical, but it would have to be a “substitute product” meaning it could meet the FDA certification standards.
              (iii) For specific national security considerations. The exclusion review criterion “or for specific national security considerations” is intended to allow the U.S. Department of Commerce, in consultation with other parts of the U.S. Government as warranted, to make determinations whether a particular exclusion request should be approved based on specific national security considerations. For example, if the aluminum included in an exclusion request is needed by a U.S. defense contractor for making critical items for use in a military weapons platform for the U.S. Department of Defense, and the duty or quantitative limitation will prevent the military weapons platform from being produced, the exclusion will likely be, the exclusion will likely be granted. The U.S. Department of Commerce, in consultation with the other parts of the U.S. Government as warranted, can consider other impacts to U.S. national security that may result from not approving an exclusion, e.g., the unintended impacts that may occur in other downstream industries using aluminum, but in such cases the demonstrated concern with U.S. national security would need to be tangible and clearly explained and ultimately determined by the U.S. Government.
              (d) Objections to submitted exclusion requests. (1) Who may submit an objection to a submitted exclusion request? Any individual or organization that manufactures aluminum articles in the United States may file objections to aluminum exclusion requests, but the U.S. Department of Commerce will only consider information directly related to the submitted exclusion request that is the subject of the objection.
              (2) Identification of objections to submitted exclusion requests—(i) Objections to submitted exclusion requests in regulations.gov. When submitting an objection to an exclusion request that was submitted no later than June 12, 2019, the objector must locate the exclusion request and submit a comment on the submitted exclusion request in regulations.gov. The file name of the objection submission should include the objector's name, date of submission of the objection, name of the organization that submitted the exclusion request, and date the exclusion request was posted. For example, if Company X is submitting on April 1, 2018, an objection to an exclusion request submitted by Company A on March 15, 2018, the file should be named: “Company X objection_4-1-18 for Company A exclusion request_3-15-18.” In regulations.gov once an objection to a submitted exclusion request is posted, the objection will appear as a document under the related exclusion request.
              (ii) Objections to submitted exclusion requests in the 232 Exclusions Portal. When submitting an objection to a submitted exclusion request that was submitted on or after June 13, 2019, the objector must locate the exclusion request and submit the objection in response to the request, directly in the 232 Exclusions Portal. Once the relevant exclusion request has been located, an individual or organization that would like to submit an objection will access the objection form by scrolling to the bottom of the exclusion request form and then filling out the web-based form for submitting their objection to the exclusion request in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (3) Time limit for submitting objections to submitted exclusions requests. All objections to submitted exclusion requests that were submitted no later than June 12, 2019 must be in electronic form and submitted to the Federal rulemaking portal (http://www.regulations.gov) no later than 30 days after the related exclusion request is posted. All objections to submitted exclusion requests that were submitted on or after June 13, 2019, must be submitted directly on the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations) no later than 30 days after the related exclusion request is posted.
              (4) Substance of objections to submitted exclusion requests. The objection should clearly identify, and provide support for, its opposition to the proposed exclusion, with reference to the specific basis identified in, and the support provided for, the submitted exclusion request. If the objector is asserting that it is not currently producing the aluminum identified in an exclusion request but can produce the aluminum within eight weeks (meaning the objector meets the definition of being able to supply the aluminum “immediately” in order to meet the demand identified in the exclusion request), the objector must identify how it will be able to produce the article within eight weeks. This requirement includes specifying in writing to the U.S. Department of Commerce as part of the objection, the timeline the objector anticipates in order to start or restart production of the aluminum included in the exclusion request to which it is objecting. For example, a summary timeline that specifies the steps that will occur over the weeks needed to produce that aluminum would be helpful to include, not only for the U.S. Department of Commerce review of the objection, but also for the requester of the exclusion and its determination whether to file a rebuttal to the objection. The U.S. Department of Commerce understands that in certain cases regulatory approvals, such as from the Environmental Protection Agency (EPA) or some approvals at the state or local level may be required to start or restart production and that some of these types of approvals may be not controllable by an objector.
              (e) Limitations on the size of submissions. Each exclusion request and each objection to a submitted exclusion request is to be limited to a maximum of 25 pages, respectively, inclusive of all exhibits and attachments, but exclusive of the respective forms and any CBI provided to the U.S. Department of Commerce. Each attachment to a submission must be less than 10 MB.
              (f) Rebuttal process. Only individuals or organizations that have submitted an exclusion request pursuant to this supplement may submit a rebuttal to any objection(s) posted to their exclusion request in the Federal rulemaking portal (http://www.regulations.gov) or in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). The objections to submitted exclusion requests process identified under paragraph (d) of this supplement already establish a formal response process for aluminum manufacturers in the United States. The objection process is an important part of ensuring the duties and quantitative limitations are working as intended to achieve the stated purposes of the President's Proclamations and the objectives of implementing these duties and quantitative limitations to protect U.S. national security interests. In order to enhance the fairness of this process and to allow the individual or organization that submitted an exclusion request to respond to any objections submitted to its exclusion request, this paragraph (f) allows for subsequent written submissions under the rebuttal process.
              (1) Identification of rebuttals—(i) Identification of rebuttals in regulations.gov. When submitting a rebuttal, the individual or organization that submitted the exclusion request submits a comment on the objection to the submitted exclusion request in the Federal rulemaking portal (http://www.regulations.gov). See Annex 1 to Supplements No. 1 and 2 to this part for a five-step process for how to submit rebuttals. Annex 1 describes the naming convention used for identification of rebuttals and the steps needed to identify objections to exclusion requests when using www.regulations.gov to submit a rebuttal. Submitters of rebuttals must follow the steps described in Annex 1, including following the naming convention of rebuttals. In regulations.gov once a rebuttal to an objection to a submitted exclusion request is posted, the rebuttal will appear as a document under the related exclusion request.
              (ii) Identification of rebuttals in 232 Exclusions Portal. When submitting a rebuttal, the individual or organization that submitted the exclusion request will access the rebuttal form by scrolling to the bottom of the objection form and then filling out the web-based form for submitting their rebuttal to the objection in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (2) Format and size limitations for rebuttals. Similar to the exclusions process identified under paragraph (c) of this supplement and the objection process identified under paragraph (d) of this supplement, the rebuttal process requires the submission of a government form as specified in paragraph (b)(3) of this supplement. The rebuttal must be in writing and submitted in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. Each rebuttal is to be limited to a maximum of 10 pages, inclusive of all exhibits and attachments, but exclusive of the rebuttal form and any CBI provided to the U.S. Department of Commerce. Each attachment to a submission must be less than 10 MB.
              (3) Substance of rebuttals. Rebuttals must address an objection to the exclusion request made by the requester. If multiple objections were received on a particular exclusion, the requester may submit a rebuttal to each objector. The most effective rebuttals will be those that aim to correct factual errors or misunderstandings in the objection(s).
              (4) Time limit for submitting rebuttals. The rebuttal period begins on the date the Department opens the rebuttal period after the posting of the last objection in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. This beginning date will be sometime between thirty-one to forty-five days (a fifteen day range) after an exclusion request has been posted. The range of days is needed to account for time needed by the U.S. Department of Commerce to review any objections submitted to determine whether the objections are complete and should be posted in regulations.gov or in the 232 Exclusions Portal. The rebuttal period ends seven days after the rebuttal comment period is opened. This seven day rebuttal period allows for the individual or organization that submitted an exclusion request pursuant to this supplement to submit any written rebuttals that it believes are warranted.

                Note to paragraph (f)(4):
                For exclusion requests that received an objection(s) but for which the U.S. Department of Commerce has not posted a final determination on the exclusion request as of September 11, 2018, the Department will reopen the requests to allow for the submission of rebuttals. The Department will reopen the requests on a rolling basis starting on September 11, 2018, and will seek to complete the reopening process on the date that is seven days after September 18, 2018, to serve as the start date for the review periods identified in paragraph (f)(4) of this supplement for those requests.

              (g) Surrebuttal process. Only individuals or organizations that have a posted objection to a submitted exclusion request pursuant to this supplement may submit a surrebuttal to a rebuttal (see paragraph (f) of this supplement) posted to their objection to an exclusion request in the Federal rulemaking portal (http://www.regulations.gov) or in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations). The objections process identified under paragraph (d) of this supplement already establishes a formal response process for aluminum manufacturers in the United States and is an important part of ensuring the duties and quantitative limitations are working as intended to achieve the stated purposes of the President's Proclamations and the objectives of implementing these duties and quantitative limitations to protect U.S. national security interests. In order to enhance the fairness of this process and to allow the individual or organization that submitted an objection to a submitted exclusion request to respond to any rebuttals pursuant to paragraph (f) of this supplement, paragraph (g) allows for subsequent written submissions under this surrebuttal process.
              (1) Identification of surrebuttals—(i) Identification of surrebuttals in regulations.gov. When submitting a surrebuttal, the individual or organization that submitted the objection to an exclusion request would submit a comment on the submitted rebuttal to the objection submitted in the Federal rulemaking portal (http://www.regulations.gov). See Annex 1 to Supplements No. 1 and 2 to this part for a five-step process for how to submit surrebuttals. Annex 1 describes the naming convention used for identification of surrebuttals and the steps needed to identify rebuttals in regulations when using www.regulations.gov to submit a surrebuttal. Submitters of surrebuttals must follow the steps described in Annex 1, including following the naming convention of surrebuttals. In regulations.gov once a surrebuttal to a rebuttal to an objection to a submitted exclusion request is posted, the surrebuttal will appear as a document under the related exclusion request.
              (ii) Identification of surrebuttals in the 232 Exclusions Portal. When submitting a surrebuttal, the individual or organization that submitted the objection will access the surrebuttal form by scrolling to the bottom of the rebuttal form and then filling out the web-based form for submitting their surrebuttal to the rebuttal in the 232 Exclusions Portal (https://www.commerce.gov/page/section-232-investigations).
              (2) Format and size limitations for surrebuttals. Similar to the exclusions process identified under paragraph (c) of this supplement, the objection process identified under paragraph (d) of this supplement, and the rebuttal process identified under paragraph (f) of this supplement, the surrebuttal process requires the submission of a government form as specified in paragraph (b)(4) supplement. The surrebuttal must be in writing and submitted in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. Each surrebuttal is to be limited to a maximum of 10 pages, inclusive of all exhibits and attachments, but exclusive of the surrebuttal form and any CBI provided to the U.S. Department of Commerce. Each attachment to a submission must be less than 10 MB.
              (3) Substance of surrebuttals. Surrebuttals must address a rebuttal to an objection to the exclusion request made by the requester. The most effective surrebuttals will be those that aim to correct factual errors or misunderstandings in the rebuttal to an objection(s).
              (4) Time limit for submitting surrebuttals. The surrebuttal period begins on the date the Department opens the surrebuttal period, after the posting of the last rebuttal to an objection to an exclusion request in regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal. This will be sometime within a fifteen-day range after the rebuttal period has closed. The range of days is needed to account for time needed by the U.S. Department of Commerce to review any rebuttals to objections submitted to determine whether the rebuttals are complete and should be posted in regulations.gov or in the 232 Exclusions Portal. The surrebuttal period ends seven days after the surrebuttal period is opened. This seven-day surrebuttal period allows for the individual or organization that submitted an objection to a submitted exclusion request pursuant to this supplement to submit any written surrebuttals that it believes are warranted to respond to a rebuttal.
              (h) Disposition of 232 submissions—(1) Disposition of incomplete submissions. (i) Exclusion requests that do not satisfy the requirements specified in paragraphs (b) and (c) of this supplement will be denied.
              (ii) Objection filings that do not satisfy the requirements specified in paragraphs (b) and (d) will not be considered.
              (iii) Rebuttal filings that do not satisfy the requirements specified in paragraphs (b) and (f) will not be considered.
              (iv) Surrebuttal filings that do not satisfy the requirements specified in paragraphs (b) and (g) will not be considered.
              (2) Disposition of complete submissions—(i) Posting of responses—(A) Responses in regulations.gov. The U.S. Department of Commerce will post responses (decision memos) in regulations.gov to each exclusion request submitted no later than June 12, 2019 under docket number BIS-2018-0002. The U.S. Department of Commerce response to an exclusion request will also be responsive to any of the objection(s), rebuttal(s), and surrebuttal(s) for that submitted exclusion request submitted under docket number BIS-2018-0002.
              (B) Responses in the 232 Exclusions Portal. The U.S. Department of Commerce will post responses (decision memos) in the 232 Exclusions Portal to each exclusion request submitted on or after June 13, 2019. The U.S. Department of Commerce response to an exclusion request will also be responsive to any of the objection(s), rebuttal(s) and surrebuttal(s) for that submitted exclusion request submitted through the 232 Exclusions Portal.
              (ii) Streamlined review process for “No Objection” requests. The U.S. Department of Commerce will grant properly filed exclusion requests which meet the requisite criteria, receive no objections, and present no national security concerns. If an exclusion request's 30-day comment period on regulations.gov or in the 232 Exclusions Portal (based on which submission method was used for the submission of the exclusion request) has expired and no objections have been submitted, BIS will immediately assess the request for any national security concerns. If BIS identifies no national security concerns, it will post a decision granting the exclusion request on regulations.gov if the exclusion request was submitted via regulations.gov, or in the 232 Exclusions Portal if the exclusion request was submitted via the 232 Exclusions Portal.
              (iii) Effective date for approved exclusions and date used for calculating duty refunds—(A) Effective date for approved exclusions. Approved exclusions will be effective five business days after publication of the U.S. Department of Commerce response granting an exclusion in regulations.gov or in the 232 Exclusions Portal, based on which submission method was used for the submission of the exclusion request. Starting on that date, the requester will be able to rely upon the approved exclusion request in calculating the duties owed on the product imported in accordance with the terms listed in the approved exclusion request.

              (B) Contact for obtaining duty refunds. The U.S. Department of Commerce does not provide refunds on tariffs. Any questions on the refund of duties should be directed to CBP.
              (iv) Validity period for exclusion requests. Exclusions will generally be approved for one year, but may be valid for shorter or longer than one year depending on the specifics of the exclusion request; any objections filed; and analysis by the U.S. Department of Commerce and other parts of the U.S. Government, as warranted, of the current supply and demand in the United States, including any limitations or other factors that the Department determines should be considered in order to achieve the national security objectives of the duties and quantitative limitations while not unduly burdening other parts of U.S. industry.
              (A) Examples of what fact patterns may warrant a longer exclusion validity period. Individuals or organizations submitting exclusion requests or objections may specify and are encouraged to specify how long they believe an exclusion may be warranted and specify the rationale for that recommended time period. For example, an individual or organization submitting an exclusion request, may request a longer validity period if there are factors outside of their control that may make it warranted to grant a longer period. These factors may include regulatory requirements that make a longer validity period justified, e.g., for an aircraft manufacturer that would require a certain number of years to make a change to an FAA approved type certificate or for a manufacturer of medical items to obtain FDA approval. Business considerations, such as the need for a multi-year contract for aluminum with strict delivery schedules in order to complete a significant U.S. manufacturing project by an established deadline, e.g., a large scale petrochemical project, is another illustrative example of the types of considerations that a person submitting an exclusion request may reference.

              (B) Examples of what criteria may warrant a shorter exclusion validity period. Objectors are encouraged to provide their suggestions for how long they believe an appropriate validity period should be for an exclusion request. In certain cases, this may be an objector indicating it has committed to adding new capacity that will be coming online within six months, so a shorter six-month period is warranted. Conversely, if an objector knows it will take two years to obtain appropriate regulatory approvals, financing and/or completing construction to add new capacity, the objector may, in responding to an exclusion that requests a longer validity period, e.g., three years, indicate that although they agree a longer validity period than one year may be warranted in this case, that two years is sufficient.
              (C) None of the illustrative fact patterns identified in paragraphs (h)(2)(iv)(A) or (B) of this supplement will be determinative in and of themselves for establishing the appropriate validity period, but this type of information is helpful for the U.S. Department of Commerce to receive, when warranted, to help determine the appropriate validity period if a period other than one year is requested.
              (3) Review period and implementation of any needed conforming changes—(i) Review period. The review period normally will not exceed 106 days for requests that receive objections, including adjudication of objections submitted on exclusion requests and any rebuttals to objections, and surrebuttals. The estimated 106-day period begins on the day the exclusion request is posted in either regulations.gov or in the 232 Exclusions Portal and ends once a decision to grant or deny is made on the exclusion request.
              (ii) Coordination with other agencies on approval and implementation. Other agencies of the U.S. Government, such as CBP, will take any additional steps needed to implement an approved exclusion request. These additional steps needed to implement an approved exclusion request are not part of the review criteria used by the U.S. Department of Commerce to determine whether to approve an exclusion request, but are an important component in ensuring the approved exclusion request can be properly implemented. The U.S. Department of Commerce will provide CBP with information that will identify each approved exclusion request pursuant to this supplement. Importers are directed to report information concerning any applicable exclusion granted by Commerce in such form as CBP may require. These exclusion identifiers will be used by importers in the data collected by CBP in order for CBP to determine whether an import is within the scope of an approved exclusion request.
              (i) For further information. If you have questions on this supplement, you may contact Director, Industrial Studies, Office of Technology Evaluation, Bureau of Industry and Security, U.S. Department of Commerce, at (202) 482-4757 or Aluminum232@bis.doc.gov regarding aluminum exclusion requests. See Annex 1 to Supplements Nos. 1 and 2 to this part for application issues that are specific to using www.regulations.gov for submitting rebuttals and surrebuttals under these two supplements for exclusion requests submitted no later than June 12, 2019. The U.S. Department of Commerce has posted in regulations.gov training documents to assist your understanding when submitting 232 submissions. These documents include step-by-step screen shots of the process for using regulations.gov. The U.S. Department of Commerce website also includes FAQs and best practices other companies have used for submitting exclusion requests and objections. The U.S. Department of Commerce has also included a manual providing instruction on the 232 Exclusions Portal for exclusion requests submitted on or after June 13, 2019, titled 232 Exclusions Portal Comprehensive Guide (“232 Exclusions Guide”) and posted online at (https://www.commerce.gov/page/section-232-investigations) to assist your understanding when making 232 submissions in the 232 Exclusions Portal.
              [83 FR 46056, Sept. 11, 2018, as amended at 84 FR 26760, June 10, 2019]

              Pt. 705, Supp. Nos. 1 & 2, Annex 1

              Annex 1 to Supplements No. 1 and 2 to Part 705—Steps for Using Regulations.gov to File Rebuttals and Surrebuttals

              These steps for how to file rebuttal and surrebuttal comments are only applicable to exclusion requests submitted no later than June 12, 2019 in regulations.gov. For guidance on how to file rebuttal and surrebuttal comments to exclusion requests submitted on or after June 13, 2019, in the 232 Exclusions Portal, see the manual, 232 Exclusions Portal Comprehensive Guide (“232 Exclusions Guide”) posted online at (https://www.commerce.gov/page/section-232-investigations).
              How To File Rebuttal Comments

                Step 1: After the objection comment period closes for your exclusion request, you should search for all the objections on the www.regulations.gov website using the tutorial available on www.regulations.gov. Commerce will also prepare a daily list available on www.commerce.gov/232 that will assist you with determining whether an objection was filed for your product exclusion request. You must have your request ID # (BIS-2018-000X-XXXXX) to locate a specific exclusion request.

                Step 2: Using the list on www.commerce.gov/232 and your exclusion request ID #, filter the list for your request. If your request ID # is not on this list, it did not receive any objections and no rebuttal period will be opened and Commerce will process it accordingly. If your request ID # is on this list, locate the objections filed for your request. Please note that your request ID # will be listed more than once if it received more than one objection. Be advised that you should continue to monitor www.regulations.gov and the list on www.commerce.gov/232 to determine if objections were filed on your exclusion request.

                Step 3: To review the objections filed, go to www.regulations.gov and enter the objection ID # that corresponds to your exclusion request. Some exclusion requests may have multiple objections.

                Step 4: If you decide to file a rebuttal to an objection, visit www.regulations.gov to locate the rebuttal submission form. Submit one rebuttal form for each objection you wish to rebut along with no more than 10 pages of supporting documentation. The 10 pages should include public documents and the public version of your confidential or proprietary business information (CBI) documentation. All rebuttal materials must be submitted within the 7-day rebuttal period.

                Step 5: If you wish to submit CBI as part of your rebuttal, you must mark the appropriate box in the rebuttal form. The CBI document must be emailed to 232rebuttals@doc.gov on the same day you submit your rebuttal on regulations.gov. The email subject line must include the original exclusion request ID # (BIS-2018-000X-XXXXX) and the body of the email must include the 11-digit alphanumeric tracking number (XXX-XXXX-XXXX) you received from regulations.gov when you successfully submitted your rebuttal. Submit no more than 5 pages of supporting CBI documentation via email. As noted in Step 4 above, an adequate public version, adhering to the requirements outlined in the body of this regulation, must accompany the submission of each rebuttal form on regulations.gov. If you do not file a public version of the CBI, Commerce will not consider your rebuttal to be properly submitted and exclude it from the analyses.

              For any questions, call (202) 482-5642 (steel) or (202) 482-4757 (aluminum).
              How To File Surrebuttal Comments

                Step 1: After the rebuttal comment period closes on an exclusion request, you should search for all the rebuttals on the www.regulations.gov website using the tutorial available on www.regulations.gov. Commerce will also prepare a daily list available on www.commerce.gov/232 that will assist you with determining whether a rebuttal was filed on your objection. You must have the exclusion request ID # (BIS-2018-000X-XXXXX) to locate rebuttals to your objection.

                Step 2: Using the list on www.commerce.gov/232 filter the objection ID #, column using your objection ID #. If no rebuttals were filed for your objection, then the list will indicate, “No Rebuttal” under the Rebuttal ID column. Be advised that you should continue to monitor www.regulations.gov and the list on www.commerce.gov/232 to determine if rebuttals were filed on your objection.

                Step 3: To review the rebuttals filed, go to www.regulations.gov and enter the exclusion request ID # that corresponds to your objection.

                Step 4: If you decide to file a surrebuttal, visit www.regulations.gov to locate the surrebuttal submission form. Submit one surrebuttal form for each rebuttal you wish to rebut along with no more than 10 pages of supporting documentation. The 10 pages should include public documents and the public version of your CBI documentation. All surrebuttal materials must be submitted within the 7-day surrebuttal period.

                Step 5: If you wish to submit CBI as part of your surrebuttal, you must mark the appropriate box in the surrebuttal form. The CBI document must be emailed to 232surrebuttals@doc.gov on the same day you submit your surrebuttal on regulations.gov. The email subject line must only include the original exclusion request ID # (BIS-2018-000X-XXXXX) and the body of the email must include the 11-digit alphanumeric tracking number (XXX-XXXX-XXXX) you received from regulations.gov when you successfully submitted your surrebuttal. Submit no more than 5 pages of supporting CBI documentation via email. As noted in Step 4 above, an adequate public version, adhering to the requirements outlined in the body of this regulation, must accompany the submission of each surrebuttal form on regulations.gov. If you do not file a public version of the CBI, Commerce will not consider your surrebuttal to be properly submitted and exclude it from the analyses.

              For any questions, call (202) 482-5642 (steel) or (202) 482-4757 (aluminum).
              [83 FR 46064, Sept. 11, 2018, as amended at 84 FR 26764, June 10, 2019]

            PARTS 706-709 [RESERVED]

          SUBCHAPTER B—CHEMICAL WEAPONS CONVENTION REGULATIONS

            Pt. 710
            PART 710—GENERAL INFORMATION AND OVERVIEW OF THE CHEMICAL WEAPONS CONVENTION REGULATIONS (CWCR)

              Sec.
              710.1
              Definitions of terms used in the Chemical Weapons Convention Regulations (CWCR).
              710.2
              Scope of the CWCR.
              710.3
              Purposes of the Convention and CWCR.
              710.4
              Overview of scheduled chemicals and examples of affected industries.
              710.5
              Authority.
              710.6
              Relationship between the Chemical Weapons Convention Regulations and the Export Administration Regulations, the International Traffic in Arms Regulations, and the Alcohol, Tobacco, Firearms, and Explosives Regulations.
              Supplement No. 1 to Part 710—States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction
              Supplement No. 2 to Part 710—Definitions of Production

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 710.1
              Definitions of terms used in the Chemical Weapons Convention Regulations (CWCR).
              The following are definitions of terms used in the CWCR (parts 710 through 729 of this subchapter, unless otherwise noted):

                Act (The). Means the Chemical Weapons Convention Implementation Act of 1998 (22 U.S.C. 6701 et seq.).

                Advance Notification. Means a notice informing BIS of a company's intention to export to or import from a State Party a Schedule 1 chemical. This advance notification must be submitted to BIS at least 45 days prior to the date of export or import (except for transfers of 5 milligrams or less of saxitoxin for medical/diagnostic purposes, which must be submitted to BIS at least 3 days prior to export or import). BIS will inform the company in writing of the earliest date the shipment may occur under the advance notification procedure. This advance notification requirement is imposed in addition to any export license requirements under the Department of Commerce's Export Administration Regulations (15 CFR parts 730 through 774) or the Department of State's International Traffic in Arms Regulations (22 CFR parts 120 through 130) or any import license requirements under the Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives Regulations (27 CFR part 447).

                Bureau of Industry and Security (BIS). Means the Bureau of Industry and Security of the United States Department of Commerce, including Export Administration and Export Enforcement.

                By-product. Means any chemical substance or mixture produced without a separate commercial intent during the manufacture, processing, use or disposal of another chemical substance or mixture.

                Chemical Weapon. Means the following, together or separately:
              (1) Toxic chemicals and their precursors, except where intended for purposes not prohibited under the Chemical Weapons Convention (CWC), provided that the type and quantity are consistent with such purposes;
              (2) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in paragraph (1) of this definition, which would be released as a result of the employment of such munitions and devices;
              (3) Any equipment specifically designed for use directly in connection with the employment of munitions or devices specified in paragraph (2) of this definition.

                Chemical Weapons Convention (CWC or Convention). Means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, and its annexes opened for signature on January 13, 1993.

                Chemical Weapons Convention Regulations (CWCR). Means the regulations contained in 15 CFR parts 710 through 729.

                Consumption. Consumption of a chemical means its conversion into another chemical via a chemical reaction. Unreacted material must be accounted for as either waste or as recycled starting material.

                Declaration or report form. Means a multi-purpose form to be submitted to BIS regarding activities involving Schedule 1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals. Declaration forms will be used by facilities that have data declaration obligations under the CWCR and are “declared” facilities whose facility-specific information will be transmitted to the OPCW. Report forms will be used by entities that are “undeclared” facilities or trading companies that have limited reporting requirements for only export and import activities under the CWCR and whose facility-specific information will not be transmitted to the OPCW. Information from declared facilities, undeclared facilities and trading companies will also be used to compile U.S. national aggregate figures on the production, processing, consumption, export and import of specific chemicals. See also related definitions of declared facility, undeclared facility and report.

                Declared facility or plant site. Means a facility or plant site that submits declarations of activities involving Schedule 1, Schedule 2, Schedule 3, or unscheduled discrete organic chemicals above specified threshold quantities.

                Discrete organic chemical. Means any chemical belonging to the class of chemical compounds consisting of all compounds of carbon, except for its oxides, sulfides, and metal carbonates, identifiable by chemical name, by structural formula, if known, and by Chemical Abstract Service registry number, if assigned. (Also see the definition for unscheduled discrete organic chemical.)

                Domestic transfer. Means, with regard to declaration requirements for Schedule 1 chemicals under the CWCR, any movement of any amount of a Schedule 1 chemical outside the geographical boundary of a facility in the United States to another destination in the United States, for any purpose. Also means, with regard to declaration requirements for Schedule 2 and Schedule 3 chemicals under the CWCR, movement of a Schedule 2 or Schedule 3 chemical in quantities and concentrations greater than specified thresholds, outside the geographical boundary of a facility in the United States, to another destination in the United States, for any purpose. Domestic transfer includes movement between two divisions of one company or a sale from one company to another. Note that any movement to or from a facility outside the United States is considered an export or import for reporting purposes, not a domestic transfer. (Also see definition of United States.)

                EAR. Means the Export Administration Regulations (15 CFR parts 730 through 774).

                Explosive. Means a chemical (or a mixture of chemicals) that is included in Class 1 of the United Nations Organization hazard classification system.

                Facility. Means any plant site, plant or unit.

                Facility Agreement. Means a written agreement or arrangement between a State Party and the Organization relating to a specific facility subject to on-site verification pursuant to Articles IV, V, and VI of the Convention.

                Host Team. Means the U.S. Government team that accompanies the inspection team from the Organization for the Prohibition of Chemical Weapons during a CWC inspection for which the regulations in the CWCR apply.

                Host Team Leader. Means the representative from the Department of Commerce who heads the U.S. Government team that accompanies the Inspection Team during a CWC inspection for which the regulations in the CWCR apply.

                Hydrocarbon. Means any organic compound that contains only carbon and hydrogen.

                Impurity. Means a chemical substance unintentionally present with another chemical substance or mixture.

                Inspection Notification. Means a written announcement to a plant site by the United States National Authority (USNA) or the BIS Host Team of an impending inspection under the Convention.

                Inspection Site. Means any facility or area at which an inspection is carried out and which is specifically defined in the respective facility agreement or inspection request or mandate or inspection request as expanded by the alternative or final perimeter.

                Inspection Team. Means the group of inspectors and inspection assistants assigned by the Director-General of the Technical Secretariat to conduct a particular inspection.

                Intermediate. Means a chemical formed through chemical reaction that is subsequently reacted to form another chemical.

                ITAR. Means the International Traffic in Arms Regulations (22 CFR parts 120-130).

                Organization for the Prohibition of Chemical Weapons (OPCW). Means the international organization, located in The Hague, the Netherlands, that administers the CWC.

                Person. Means any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government or nation, or other entity located in the United States.

                Plant. Means a relatively self-contained area, structure or building containing one or more units with auxiliary and associated infrastructure, such as:
              (1) Small administrative area;
              (2) Storage/handling areas for feedstock and products;
              (3) Effluent/waste handling/treatment area;
              (4) Control/analytical laboratory;
              (5) First aid service/related medical section; and
              (6) Records associated with the movement into, around, and from the site, of declared chemicals and their feedstock or product chemicals formed from them, as appropriate.

                Plant site. Means the local integration of one or more plants, with any intermediate administrative levels, which are under one operational control, and includes common infrastructure, such as:
              (1) Administration and other offices;
              (2) Repair and maintenance shops;
              (3) Medical center;
              (4) Utilities;
              (5) Central analytical laboratory;
              (6) Research and development laboratories;
              (7) Central effluent and waste treatment area; and
              (8) Warehouse storage.

                Precursor. Means any chemical reactant which takes part, at any stage in the production, by whatever method, of a toxic chemical. The term includes any key component of a binary or multicomponent chemical system.

                Processing. Means a physical process such as formulation, extraction and purification in which a chemical is not converted into another chemical.

                Production. Means the formation of a chemical through chemical reaction, including biochemical or biologically mediated reaction (see supplement no. 2 to this part).
              (1) Production of Schedule 1 chemicals means formation through chemical synthesis as well as processing to extract and isolate Schedule 1 chemicals.
              (2) Production of a Schedule 2 or Schedule 3 chemical means all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.

                Production by synthesis. Means production of a chemical from its reactants.

                Protective purposes in relation to Schedule 1 chemicals. Means any purpose directly related to protection against toxic chemicals and to protection against chemical weapons. Further means the Schedule 1 chemical is used for determining the adequacy of defense equipment and measures.

                Purposes not prohibited by the CWC. Means the following:

              (1) Any peaceful purpose related to an industrial, agricultural, research, medical or pharmaceutical activity or other activity;
              (2) Any purpose directly related to protection against toxic chemicals and to protection against chemical weapons;
              (3) Any military purpose of the United States that is not connected with the use of a chemical weapon and that is not dependent on the use of the toxic or poisonous properties of the chemical weapon to cause death or other harm; or
              (4) Any law enforcement purpose, including any domestic riot control purpose and including imposition of capital punishment.

                Report. Means information due to BIS on exports and imports of Schedule 1, Schedule 2 or Schedule 3 chemicals above applicable thresholds. Such information is included in the national aggregate declaration transmitted to the OPCW. Facility-specific information is not included in the national aggregate declaration. Note: This definition does not apply to parts 719 and 720 of the CWCR (see the definition of “report” in § 719.1(b) of the CWCR).

                Schedules of Chemicals. Means specific lists of toxic chemicals, groups of chemicals, and precursors contained in the CWC. See Supplements No. 1 to parts 712 through 714 of the CWCR.

                State Party. Means a country for which the CWC is in force. See supplement no. 1 to this part.

                Storage. For purposes of Schedule 1 chemical reporting, means any quantity that is not accounted for under the categories of production, export, import, consumption or domestic transfer.

                Technical Secretariat. Means the organ of the OPCW charged with carrying out administrative and technical support functions for the OPCW, including carrying out the verification measures delineated in the CWC.

                Toxic Chemical. Means any chemical which, through its chemical action on life processes, can cause death, temporary incapacitation, or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions, or elsewhere. Toxic chemicals that have been identified for the application of verification measures are in schedules contained in Supplements No. 1 to parts 712 through 714 of the CWCR.

                Trading company. Means any person involved in the export and/or import of scheduled chemicals in amounts greater than specified thresholds, but not in the production, processing or consumption of such chemicals in amounts greater than threshold amounts requiring declaration. If such persons exclusively export or import scheduled chemicals in amounts greater than specified thresholds, they are subject to reporting requirements but are not subject to routine inspections. Such persons must be the principal party in interest of the exports or imports and may not delegate CWC reporting responsibilities to a forwarding or other agent.

                Transfer. See domestic transfer.

                Transient intermediate. Means any chemical which is produced in a chemical process but, because it is in a transition state in terms of thermodynamics and kinetics, exists only for a very short period of time, and cannot be isolated, even by modifying or dismantling the plant, or altering process operating conditions, or by stopping the process altogether.

                Undeclared facility or plant site. Means a facility or plant site that is not subject to declaration requirements because of past or anticipated production, processing or consumption involving scheduled or unscheduled discrete organic chemicals above specified threshold quantities. However, such facilities and plant sites may have a reporting requirement for exports or imports of such chemicals.

                Unit. Means the combination of those items of equipment, including vessels and vessel set up, necessary for the production, processing or consumption of a chemical.

                United States. Means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States, and includes all places under the jurisdiction or control of the United States, including any of the places within the provisions of paragraph (41) of section 40102 of Title 49 of the United States Code, any civil aircraft of the United States or public aircraft, as such terms are defined in paragraphs (1) and (37), respectively, of section 40102 of Title 49 of the United States Code, and any vessel of the United States, as such term is defined in section 3(b) of the Maritime Drug Enforcement Act, as amended (section 1903(b) of Title 46 App. of the United States Code).

                United States National Authority (USNA). Means the Department of State serving as the national focal point for the effective liaison with the Organization for the Prohibition of Chemical Weapons and other States Parties to the Convention and implementing the provisions of the Chemical Weapons Convention Implementation Act of 1998 in coordination with an interagency group designated by the President consisting of the Secretary of Commerce, Secretary of Defense, Secretary of Energy, the Attorney General, and the heads of other agencies considered necessary or advisable by the President, or their designees. The Secretary of State is the Director of the USNA.

                Unscheduled chemical. Means a chemical that is not contained in Schedule 1, Schedule 2, or Schedule 3 (see Supplements No. 1 to parts 712 through 714 of the CWCR).

                Unscheduled Discrete Organic Chemical (UDOC). Means any “discrete organic chemical” that is not contained in the Schedules of Chemicals (see Supplements No. 1 to parts 712 through 714 of the CWCR) and subject to the declaration requirements of part 715 of the CWCR. Unscheduled discrete organic chemicals subject to declaration under the CWCR are those produced by synthesis that are isolated for use or sale as a specific end-product.

                You. The term “you” or “your” means any person (see also definition of “person”). With regard to the declaration and reporting requirements of the CWCR, “you” refers to persons that have an obligation to report certain activities under the provisions of the CWCR.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78182, Dec. 22, 2008]

              § 710.2
              Scope of the CWCR.
              The Chemical Weapons Convention Regulations (parts 710 through 729 of this subchapter), or CWCR, implement certain obligations of the United States under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, known as the CWC or Convention.
              (a) Persons and facilities subject to the CWCR. (1) The CWCR apply to all persons and facilities located in the United States, except the following U.S. Government facilities:
              (i) Department of Defense facilities;
              (ii) Department of Energy facilities; and
              (iii) Facilities of other U.S. Government agencies that notify the USNA of their decision to be excluded from the CWCR.
              (2) For purposes of the CWCR, “United States Government facilities” are those facilities owned and operated by a U.S. Government agency (including those operated by contractors to the agency), and those facilities leased to and operated by a U.S. Government agency (including those operated by contractors to the agency). “United States Government facilities” do not include facilities owned by a U.S. Government agency and leased to a private company or other entity such that the private company or entity may independently decide for what purposes to use the facilities.
              (b) Activities subject to the CWCR. The activities subject to the CWCR (parts 710 through 729 of this subchapter) are activities, including production, processing, consumption, exports and imports, involving chemicals further described in parts 712 through 715 of the CWCR. These do not include activities involving inorganic chemicals other than those listed in the Schedules of Chemicals, or other specifically exempted unscheduled discrete organic chemicals.

              § 710.3
              Purposes of the Convention and CWCR.
              (a) Purposes of the Convention. (1) The Convention imposes upon the United States, as a State Party, certain declaration, inspection, and other obligations. In addition, the United States and other States Parties to the Convention undertake never under any circumstances to:
              (i) Develop, produce, otherwise acquire, stockpile, or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;
              (ii) Use chemical weapons;
              (iii) Engage in any military preparations to use chemical weapons; or
              (iv) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited by the Convention.
              (2) One objective of the Convention is to assure States Parties that lawful activities of chemical producers and users are not converted to unlawful activities related to chemical weapons. To achieve this objective and to give States Parties a mechanism to verify compliance, the Convention requires the United States and all other States Parties to submit declarations concerning chemical production, consumption, processing and other activities, and to permit international inspections within their borders.
              (b) Purposes of the Chemical Weapons Convention Regulations. To fulfill the United States' obligations under the Convention, the CWCR (parts 710 through 729 of this subchapter) prohibit certain activities, and compel the submission of information from all facilities in the United States, except for Department of Defense and Department of Energy facilities and facilities of other U.S. Government agencies that notify the USNA of their decision to be excluded from the CWCR on activities, including exports and imports of scheduled chemicals and certain information regarding unscheduled discrete organic chemicals as described in parts 712 through 715 of the CWCR. U.S. Government facilities are those owned by or leased to the U.S. Government, including facilities that are contractor-operated. The CWCR also require access for on-site inspections and monitoring by the OPCW, as described in parts 716 and 717 of the CWCR.

              § 710.4
              Overview of scheduled chemicals and examples of affected industries.
              The following provides examples of the types of industries that may be affected by the CWCR (parts 710 through 729 of this subchapter). These examples are not exhaustive, and you should refer to parts 712 through 715 of the CWCR to determine your obligations.
              (a) Schedule 1 chemicals are listed in supplement no. 1 to part 712 of the CWCR. Schedule 1 chemicals have little or no use in industrial and agricultural industries, but may have limited use for research, pharmaceutical, medical, public health, or protective purposes.
              (b) Schedule 2 chemicals are listed in supplement no. 1 to part 713 of the CWCR. Although Schedule 2 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as:
              (1) Flame retardant additives and research;
              (2) Dye and photographic industries (e.g., printing ink, ball point pen fluids, copy mediums, paints, etc.);
              (3) Medical and pharmaceutical preparation (e.g., anticholinergics, arsenicals, tranquilizer preparations);
              (4) Metal plating preparations;
              (5) Epoxy resins; and
              (6) Insecticides, herbicides, fungicides, defoliants, and rodenticides.
              (c) Schedule 3 chemicals are listed in supplement no. 1 to part 714 of the CWCR. Although Schedule 3 chemicals may be useful in the production of chemical weapons, they also have legitimate uses in areas such as:
              (1) The production of:
              (i) Resins;
              (ii) Plastics;
              (iii) Pharmaceuticals;
              (iv) Pesticides;
              (v) Batteries;
              (vi) Cyanic acid;
              (vii) Toiletries, including perfumes and scents;
              (viii) Organic phosphate esters (e.g., hydraulic fluids, flame retardants, surfactants, and sequestering agents); and
              (2) Leather tannery and finishing supplies.
              (d) Unscheduled discrete organic chemicals are used in a wide variety of commercial industries, and include acetone, benzoyl peroxide and propylene glycol.

              § 710.5
              Authority.
              The CWCR (parts 710 through 729 of this subchapter) implement certain provisions of the Chemical Weapons Convention under the authority of the Chemical Weapons Convention Implementation Act of 1998 (Act), the National Emergencies Act, the International Emergency Economic Powers Act (IEEPA), as amended, and the Export Administration Act of 1979, as amended, by extending verification and trade restriction requirements under Article VI and related parts of the Verification Annex of the Convention to U.S. persons. In Executive Order 13128 of June 25, 1999, the President delegated authority to the Department of Commerce to promulgate regulations to implement the Act, and consistent with the Act, to carry out appropriate functions not otherwise assigned in the Act but necessary to implement certain reporting, monitoring and inspection requirements of the Convention and the Act.

              § 710.6
              Relationship between the Chemical Weapons Convention Regulations and the Export Administration Regulations, the International Traffic in Arms Regulations, and the Alcohol, Tobacco, Firearms and Explosives Regulations.
              Certain obligations of the U.S. Government under the CWC pertain to exports and imports. The obligations on exports are implemented in the Export Administration Regulations (EAR) (15 CFR parts 730 through 774) and the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130). See in particular §§ 742.2 and 742.18 and part 745 of the EAR, and Export Control Classification Numbers 1C350, 1C351, 1C355 and 1C395 of the Commerce Control List (supplement no. 1 to part 774 of the EAR). The obligations on imports are implemented in the Chemical Weapons Convention Regulations (§§ 712.2 and 713.1) and the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78182, Dec. 22, 2008]

              Pt. 710, Supp. No. 1
              Supplement No. 1 to Part 710—States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction
              List of States Parties as of June 1, 2016

                Afghanistan
                Albania
                Algeria
                Andorra
                Angola
                Antigua and Barbuda
                Argentina
                Armenia
                Australia
                Austria
                Azerbaijan
                Bahamas
                Bahrain
                Bangladesh
                Barbados
                Belarus
                Belgium
                Belize
                Benin
                Bhutan
                Bolivia
                Bosnia-Herzegovina
                Botswana
                Brazil
                Brunei Darussalam*
                Bulgaria
                Burkina Faso
                Burma
                Burundi
                Cambodia
                Cameroon
                Canada
                Cape Verde
                Central African Republic
                Chad
                Chile
                China***
                Colombia
                Comoros
                Congo, (Democratic Republic of the)
                Congo (Republic of the)
                Cook Islands**
                Costa Rica
                Cote d'Ivoire (Ivory Coast)
                Croatia
                Cuba
                Cyprus
                Czech Republic
                Denmark
                Djibouti
                Dominica
                Dominican Republic
                Ecuador
                El Salvador
                Equatorial Guinea
                Eritrea
                Estonia
                Ethiopia
                Fiji
                Finland
                France
                Gabon
                Gambia
                Georgia
                Germany
                Ghana
                Greece
                Grenada
                Guatemala
                Guinea
                Guinea-Bissau
                Guyana
                Haiti
                Holy See*
                Honduras
                Hungary
                Iceland
                India
                Indonesia
                Iran (Islamic Republic of)
                Iraq
                Ireland
                Italy
                Jamaica
                Japan
                Jordan
                Kazakhstan
                Kenya
                Kiribati
                Korea (Republic of)
                Kuwait
                Kyrgyzstan
                Laos (P.D.R.)*
                Latvia
                Lebanon
                Lesotho
                Liberia
                Libya
                Liechtenstein
                Lithuania
                Luxembourg
                Macedonia (The Former Yugoslav Republic of)
                Madagascar
                Malawi
                Malaysia
                Maldives
                Mali

                Malta
                Marshall Islands
                Mauritania
                Mauritius
                Mexico
                Micronesia (Federated States of)
                Moldova (Republic of)*
                Monaco
                Mongolia
                Montenegro
                Morocco
                Mozambique
                Namibia
                Nauru
                Nepal
                Netherlands***
                New Zealand
                Nicaragua
                Niger
                Nigeria
                Niue**
                Norway
                Oman
                Pakistan
                Palau
                Panama
                Papua New Guinea
                Paraguay
                Peru
                Philippines
                Poland
                Portugal
                Qatar
                Romania
                Russian Federation
                Rwanda
                Saint Kitts and Nevis
                Saint Lucia
                Saint Vincent and the Grenadines
                Samoa
                San Marino
                Sao Tome and Principe
                Saudi Arabia
                Senegal
                Serbia
                Seychelles
                Sierra Leone
                Singapore
                Slovak Republic*
                Slovenia
                Solomon Islands
                Somalia
                South Africa
                Spain
                Sri Lanka
                Sudan
                Suriname
                Swaziland
                Sweden
                Switzerland
                Syria
                Tajikistan
                Tanzania, United Republic of
                Thailand
                Timor Leste (East Timor)
                Togo
                Tonga
                Trinidad and Tobago
                Tunisia
                Turkey
                Turkmenistan
                Tuvalu
                Uganda
                Ukraine
                United Arab Emirates
                United Kingdom
                United States
                Uruguay
                Uzbekistan
                Vanuatu
                Venezuela
                Vietnam
                Yemen
                Zambia
                Zimbabwe

              * For export control purposes, these destinations are identified using a different nomenclature under the Commerce Country Chart in supplement no. 1 to part 738 of the Export Administration Regulations (EAR) (15 CFR parts 730 through 774).
              ** For export control purposes, Cook Islands and Niue are not identified on the Commerce Country Chart in supplement no. 1 to part 738 of the EAR and are treated the same as New Zealand, in accordance with § 738.3(b) of the EAR.
              *** For CWC States Parties purposes, a territory, possession, or department of any country that is listed in this Supplement as a State Party to the CWC, is treated the same as the country of which it is a territory, possession, or department (e.g., China includes Hong Kong and Macau; the Netherlands includes Aruba and the Netherlands Antilles).
              [71 FR 24929, Apr. 27, 2006, as amended at 72 FR 14408, Mar. 28, 2007; 73 FR 78182, Dec. 22, 2008; 79 FR 16666, Mar. 26, 2014; 81 FR 36462, June 7, 2016]

              Pt. 710, Supp. No. 2
              Supplement No. 2 to Part 710—Definitions of Production

                  Schedule 1 chemicals
                  Schedule 2 and Schedule 3 chemicals
                  Unscheduled discrete organic chemicals (UDOCs)

                  Produced by a biochemical or biologically mediated reaction
                  Produced by synthesis*

                  Formation through chemical synthesis.Processing to extract and isolate Schedule 1 chemicals.

                  All production steps in any units within the same plant which includes associated processes—purification, separation, extraction distillation or refining.**

                * Intermediates used in a single or multi-step process to produce another declared UDOC are not declarable.
                ** Intermediates are subject to declaration, except “transient intermediates,” which are those chemicals in a transition state in terms of thermodynamics and kinetics, that exist only for a very short period of time, and cannot be isolated, even by modifying or dismantling the plant, or by altering process operating conditions, or by stopping the process altogether are not subject to declaration.

            Pt. 711
            PART 711—GENERAL INFORMATION REGARDING DECLARATION, REPORTING, AND ADVANCE NOTIFICATION REQUIREMENTS, AND THE ELECTRONIC FILING OF DECLARATIONS AND REPORTS

              Sec.
              711.1
              Overviews of declaration, reporting, and advance notification requirements.
              711.2
              Who submits declarations, reports and advance notifications?
              711.3
              Compliance review.
              711.4
              Assistance in determining your obligations.
              711.5
              Numerical precision of submitted data.
              711.6
              Where to obtain forms.
              711.7
              Where to submit declarations, reports and advance notifications.
              711.8
              How to request authorization from BIS to make electronic submissions of declarations or reports.

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 711.1
              Overviews of declaration, reporting, and advance notification requirements.
              Parts 712 through 715 of the CWCR (parts 710 through 729 of this subchapter) describe the declaration, advance notification and reporting requirements for Schedule 1, 2 and 3 chemicals and for unscheduled discrete organic chemicals (UDOCs). For each type of chemical, the Convention requires annual declarations. If, after reviewing parts 712 through 715 of the CWCR, you determine that you have declaration, advance notification or reporting requirements, you may obtain the appropriate forms by contacting the Bureau of Industry and Security (BIS) (see § 711.6 of the CWCR).

              § 711.2
              Who submits declarations, reports, and advance notifications.
              The owner, operator, or senior management official of a facility subject to declaration, reporting, or advance notification requirements under the CWCR (parts 710 through 729 of this subchapter) is responsible for the submission of all required documents in accordance with all applicable provisions of the CWCR.

              § 711.3
              Compliance review.
              Periodically, BIS will request information from persons and facilities subject to the CWCR to determine compliance with the reporting, declaration and notification requirements set forth herein. Information requested may relate to the production, processing, consumption, export, import, or other activities involving scheduled chemicals and unscheduled discrete organic chemicals described in parts 712 through 715 of the CWCR. Any person or facility subject to the CWCR and receiving such a request for information will be required to provide a response to BIS within 30 working days of receipt of the request. This requirement does not, in itself, impose a requirement to create new records or maintain existing records in a manner other than that directed by the recordkeeping provisions set forth in part 721 of the CWCR.

              § 711.4
              Assistance in determining your obligations.
              (a) Determining if your chemical is subject to declaration, reporting or advance notification requirements. (1) If you need assistance in determining if your chemical is classified as a Schedule 1, Schedule 2, or Schedule 3 chemical, or is an unscheduled discrete organic chemical, submit your written request for a chemical determination to BIS. Such requests must be sent via facsimile to (202) 482-1731, e-mailed to cdr@bis.doc.gov, or mailed to the Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 4515, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230, and must be marked “Attn: Chemical Determination.” Your request should include the information noted in paragraph (a)(2) of this section to ensure an accurate determination. Also include any additional information that you feel is relevant to the chemical or process involved (see part 718 of the CWCR for provisions regarding treatment of confidential business information). If you are unable to provide all of the information required in paragraph (a)(2) of this section, you should include an explanation identifying the reasons or deficiencies that preclude you from supplying the information. If BIS cannot make a determination based upon the information submitted, BIS will return the request to you and identify the additional information that is necessary to complete a chemical determination. BIS will provide a written response to your chemical determination request within 10 working days of receipt of the request.
              (2) Include the following information in each chemical determination request:
              (i) Date of request;
              (ii) Company name and complete street address;
              (iii) Point of contact;
              (iv) Phone and facsimile number of contact;
              (v) E-mail address of contact, if you want an acknowledgment of receipt sent via e-mail;
              (vi) Chemical Name;
              (vii) Structural formula of the chemical, if the chemical is not specifically identified by name and chemical abstract service registry number in Supplements No. 1 to parts 712 through 714 of the CWCR; and
              (viii) Chemical Abstract Service registry number, if assigned.
              (b) Other inquiries. If you need assistance in interpreting the provisions of the CWCR or need assistance with declaration, forms, reporting, advance notification, inspection or facility agreement issues, contact BIS's Treaty Compliance Division by phone at (202) 482-1001. If you require a response from BIS in writing, submit a detailed request to BIS that explains your question, issue, or request. Send the request to the address or facsimile included in paragraph (a) of this section, or e-mail the request to cwcqa@bis.doc.gov. Your request must be marked, “ATTN: CWCR Assistance.”
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78182, Dec. 22, 2008]

              § 711.5
              Numerical precision of submitted data.

              Numerical information submitted in declarations and reports is to be provided per applicable rounding rules in each part (i.e., parts 712 through 715 of the CWCR) with a precision equal to that which can be reasonably provided using existing documentation, equipment, and measurement techniques.

              § 711.6
              Where to obtain forms.

              (a) Forms to complete declarations and reports required by the CWCR may be obtained by contacting: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 4515, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230, Telephone: (202) 482-1001. Forms and forms software may also be downloaded from the Internet at www.cwc.gov.

              (b) If the amount of information you are required to submit is greater than the given form will allow, multiple copies of forms may be submitted.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78182, Dec. 22, 2008]

              § 711.7
              Where to submit declarations, reports and advance notifications.
              Declarations, reports and advance notifications required by the CWCR must be sent either by fax to (202) 482-1731 or by mail or courier delivery to the following address: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 4515, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230, Telephone: (202) 482-1001. Specific types of declarations and reports and due dates are outlined in supplement no. 2 to parts 712 through 715 of the CWCR.
              [73 FR 78182, Dec. 22, 2008]

              § 711.8
              How to request authorization from BIS to make electronic submissions of declarations or reports.
              (a) Scope. This section provides an optional method of submitting declarations or reports. Specifically, this section applies to the electronic submission of declarations and reports required under the CWCR. If you choose to submit declarations and reports by electronic means, all such electronic submissions must be made through the Web-Data Entry System for Industry (Web-DESI), which can be accessed on the CWC web site at www.cwc.gov.

              (b) Authorization. If you or your company has a facility, plant site, or trading company that has been assigned a U.S. Code Number (USC Number), you may submit declarations and reports electronically, once you have received authorization from BIS to do so. An authorization to submit declarations and reports electronically may be limited or withdrawn by BIS at any time. There are no prerequisites for obtaining permission to submit electronically, nor are there any limitations with regard to the types of declarations or reports that are eligible for electronic submission. However, BIS may direct, for any reason, that any electronic declaration or report be resubmitted in writing, either in whole or in part.
              (1) Requesting approval to submit declarations and reports electronically. To submit declarations and reports electronically, you or your company must submit a written request to BIS at the address identified in § 711.6 of the CWCR. Both the envelope and letter must be marked, “ATTN: Electronic Declaration or Report Request.” Your request should be on company letterhead and must contain your name or the company's name, your mailing address at the company, the name of the facility, plant site or trading company and its U.S. Code Number, the address of the facility, plant site or trading company (this address may be different from the mailing address), the list of persons who are authorized to view, edit, and/or submit declarations and reports on behalf of your company, and the telephone number and name and title of the owner, operator, or senior management official responsible for certifying that each person listed in the request is authorized to view, edit, and/or submit declarations and reports on behalf of you or your company (i.e., the certifying official). Additional information required for submitting electronic declarations and reports may be found on BIS's Web site at www.cwc.gov. Once you have completed and submitted the necessary certifications, BIS will review your request for authorization to view, edit, and/or submit declarations and reports electronically. BIS will notify you if additional information is required and/or upon completion of its review.

                Note to § 711.8(b)(1):
                You must submit a separate request for each facility, plant site or trading company owned by your company (e.g., each site that is assigned a unique U.S. Code Number).

              (2) Assignment and use of passwords for facilities, plant sites and trading companies (USC password) and Web-DESI user accounts (user name and password). (i) Each person, facility, plant site or trading company authorized to submit declarations and reports electronically will be assigned a password (USC password) that must be used in conjunction with the U.S.C. Number. Each person authorized by BIS to view, edit, and/or submit declarations and reports electronically for a facility, plant site or trading company will be assigned a Web-DESI user account (user name and password) telephonically by BIS. A Web-DESI user account will be assigned to you only if your company has certified to BIS that you are authorized to act for it in viewing, editing, and/or submitting electronic declarations and reports under the CWCR.

                Note to § 711.8(b)(2)(i):
                When persons must have access to multiple Web-DESI accounts, their companies must identify such persons on the approval request for each of these Web-DESI accounts. BIS will coordinate with such persons to ensure that the assigned user name and password is the same for each account.

              (ii) Your company may reveal the facility, plant site or trading company password (USC password) only to Web-DESI users with valid passwords, their supervisors, and employees or agents of the company with a commercial justification for knowing the password.
              (iii) If you are an authorized Web-DESI account user, you may not:
              (A) Disclose your user name or password to anyone;
              (B) Record your user name or password, either in writing or electronically;
              (C) Authorize another person to use your user name or password; or
              (D) Use your user name or password following termination, either by BIS or by your company, of your authorization or approval for Web-DESI use.
              (iv) To prevent misuse of the Web-DESI account:

              (A) If Web-DESI user account information (i.e., user name and password) is lost, stolen or otherwise compromised, the company and the user must report the loss, theft or compromise of the user account information, immediately, by calling BIS at (202) 482-1001. Within two business days of making the report, the company and the user must submit written confirmation to BIS at the address provided in § 711.6 of the CWCR.
              (B) Your company is responsible for immediately notifying BIS whenever a Web-DESI user leaves the employ of the company or otherwise ceases to be authorized by the company to submit declarations and reports electronically on its behalf.
              (v) No person may use, copy, appropriate or otherwise compromise a Web-DESI account user name or password assigned to another person. No person, except a person authorized access by the company, may use or copy the facility, plant site or trading company password (USC password), nor may any person steal or otherwise compromise this password.
              (c) Electronic submission of declarations and reports—(1) General instructions. Upon submission of the required certifications and approval of the company's request to use electronic submission, BIS will provide instructions on both the method for transmitting declarations and reports electronically and the process for submitting required supporting documents, if any. These instructions may be modified by BIS from time to time.
              (2) Declarations and reports. The electronic submission of a declaration or report will constitute an official document as required under parts 712 through 715 of the CWCR. Such submissions must provide the same information as written declarations and reports and are subject to the recordkeeping provisions of part 720 of the CWCR. The company and Web-DESI user submitting the declaration or report will be deemed to have made all representations and certifications as if the submission were made in writing by the company and signed by the certifying official. Electronic submission of a declaration or report will be considered complete upon transmittal to BIS.
              (d) Updating. A company approved for electronic submission of declarations or reports under Web-DESI must promptly notify BIS of any change in its name, ownership or address. If your company wishes to have a person added as a Web-DESI user, your company must inform BIS and follow the instructions provided by BIS. Your company should conduct periodic reviews to ensure that the company's designated certifying official and Web-DESI users are persons whose current responsibilities make it necessary and appropriate that they act for the company in either capacity.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78182, Dec. 22, 2008]

            Pt. 712
            PART 712—ACTIVITIES INVOLVING SCHEDULE 1 CHEMICALS

              Sec.
              712.1
              Round to zero rule that applies to activities involving Schedule 1 chemicals.
              712.2
              Restrictions on activities involving Schedule 1 chemicals.
              712.3
              Initial declaration requirements for declared facilities which are engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.
              712.4
              New Schedule 1 production facility.
              712.5
              Annual declaration requirements for facilities engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.
              712.6
              Advance notification and annual report of all exports and imports of Schedule 1 chemicals to, or from, other States Parties.
              712.7
              Amended declaration or report.
              712.8
              Declarations and reports returned without action by BIS.
              712.9
              Deadlines for submission of Schedule 1 declarations, reports, advance notifications, and amendments.
              Supplement No. 1 to Part 712—Schedule 1 Chemicals
              Supplement No. 2 to Part 712—Deadlines for Submission of Schedule 1 Declarations, Reports, Advance Notifications, Reports, and Amendments

              Authority:
              22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 712.1
              Round to zero rule that applies to activities involving Schedule 1 chemicals.
              Facilities that produce, export or import mixtures containing less than 0.5% aggregate quantities of Schedule 1 chemicals (see supplement no. 1 to this part) as unavoidable by-products or impurities may round to zero and are not subject to the provisions of this part 712. Schedule 1 content may be calculated by volume or weight, whichever yields the lesser percent. Note that such mixtures may be subject to the regulatory requirements of other federal agencies.

              § 712.2
              Restrictions on activities involving Schedule 1 chemicals.
              (a) You may not produce Schedule 1 chemicals for protective purposes.
              (b) You may not import any Schedule 1 chemical unless:
              (1) The import is from a State Party;
              (2) The import is for research, medical, pharmaceutical, or protective purposes;
              (3) The import is in types and quantities strictly limited to those that can be justified for such purposes; and

              (4) You have notified BIS at least 45 calendar days prior to the import, pursuant to § 712.6 of the CWCR.

                Note 1 to § 712.2(b):
                Pursuant to § 712.6, advance notifications of import of saxitoxin of 5 milligrams or less for medical/diagnostic purposes must be submitted to BIS at least 3 days prior to import.

                Note 2 to § 712.2(b):
                For specific provisions relating to the prior advance notification of exports of all Schedule 1 chemicals, see § 745.1 of the Export Administration Regulations (EAR) (15 CFR parts 730 through 774). For specific provisions relating to license requirements for exports of Schedule 1 chemicals, see § 742.2 and § 742.18 of the EAR for Schedule 1 chemicals subject to the jurisdiction of the Department of Commerce and see the International Traffic in Arms Regulations (22 CFR parts 120 through 130) for Schedule 1 chemicals subject to the jurisdiction of the Department of State.

              (c)(1) The provisions of paragraphs (a) and (b) of this section do not apply to the retention, ownership, possession, transfer, or receipt of a Schedule 1 chemical by a department, agency, or other entity of the United States, or by a person described in paragraph (c)(2) of this section, pending destruction of the Schedule 1 chemical;
              (2) A person referred to in paragraph (c)(1) of this section is:
              (i) Any person, including a member of the Armed Forces of the United States, who is authorized by law or by an appropriate officer of the United States to retain, own, possess transfer, or receive the Schedule 1 chemical; or
              (ii) In an emergency situation, any otherwise non-culpable person if the person is attempting to seize or destroy the Schedule 1 chemical.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

              § 712.3
              Initial declaration requirements for declared facilities which are engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.
              Initial declarations submitted in February 2000 remain valid until amended or rescinded. If you plan to change/amend the technical description of your facility submitted with your initial declaration, you must submit an amended initial declaration to BIS 200 calendar days prior to implementing the change (see § 712.5(b)(1)(ii) of the CWCR).

              § 712.4
              New Schedule 1 production facility.
              (a) Establishment of a new Schedule 1 production facility. (1) If your facility has never before been declared under § 712.5 of the CWCR, or the initial declaration for your facility has been withdrawn pursuant to § 712.5(g) of the CWCR, and you intend to begin production of Schedule 1 chemicals at your facility in quantities greater than 100 grams aggregate per year for research, medical, or pharmaceutical purposes, you must provide an initial declaration (with a current detailed technical description of your facility) to BIS in no less than 200 calendar days in advance of commencing such production. Such facilities are considered to be “new Schedule 1 production facilities” and are subject to an initial inspection within 200 calendar days of submitting an initial declaration.

              (2) New Schedule 1 production facilities that submit an initial declaration pursuant to paragraph (a)(1) of this section are considered approved Schedule 1 production facilities for purposes of the CWC, unless otherwise notified by BIS within 30 days of receipt by BIS of that initial declaration.
              (b) Types of declaration forms required. If your new Schedule 1 production facility will produce in excess of 100 grams aggregate of Schedule 1 chemicals, you must complete the Certification Form, Form 1-1 and Form A. You must also provide a detailed technical description of the new facility or its relevant parts, and a detailed diagram of the declared areas in the facility.
              (c) Two hundred days after a new Schedule 1 production facility submits its initial declaration, it is subject to the declaration requirements in § 712.5(a)(1) and (a)(2) and § 712.5(b)(1)(ii) of the CWCR.

              § 712.5
              Annual declaration requirements for facilities engaged in the production of Schedule 1 chemicals for purposes not prohibited by the CWC.
              (a) Declaration requirements—(1) Annual declaration on past activities. You must complete the forms specified in paragraph (b)(2) of this section if you produced at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year. As a declared Schedule 1 facility, in addition to declaring the production of each Schedule 1 chemical that comprises your aggregate production of Schedule 1 chemicals, you must also declare any Schedule 1, Schedule 2, or Schedule 3 precursor used to produce the declared Schedule 1 chemical. You must further declare each Schedule 1 chemical used (consumed) and stored at your facility, and domestically transferred from your facility during the previous calendar year, whether or not you produced that Schedule 1 chemical at your facility.
              (2) Annual declaration on anticipated activities. You must complete the forms specified in paragraph (b)(3) of this section if you anticipate that you will produce at your facility more than 100 grams aggregate of Schedule 1 chemicals in the next calendar year. If you are not already a declared facility, you must complete an initial declaration (see § 712.4 of the CWCR) 200 calendar days before commencing operations or increasing production which will result in production of more than 100 grams aggregate of Schedule 1 chemicals.
              (b) Declaration forms to be used—(1) Initial declaration. (i) You must have completed the Certification Form, Form 1-1 and Form A if you produced at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in calendar years 1997, 1998, or 1999. You must have provided a detailed current technical description of your facility or its relevant parts including a narrative statement, and a detailed diagram of the declared areas in the facility.
              (ii) If you plan to change the technical description of your facility from your initial declaration completed and submitted pursuant to § 712.3 or § 712.4 of the CWCR, you must submit an amended initial declaration to BIS 200 calendar days prior to the change. Such amendments to your initial declaration must be made by completing a Certification Form, Form 1-1 and Form A, including the new description of the facility. See § 712.7 of the CWCR for additional instructions on amending Schedule 1 declarations.
              (2) Annual declaration on past activities. If you are subject to the declaration requirement of paragraph (a)(1) of this section, you must complete the Certification Form and Forms 1-1, 1-2, 1-2A, 1-2B, and Form A if your facility was involved in the production of Schedule 1 chemicals in the previous calendar year. Form B is optional.
              (3) Annual declaration on anticipated activities. If you anticipate that you will produce at your facility in excess of 100 grams aggregate of Schedule 1 chemicals in the next calendar year you must complete the Certification Form and Forms 1-1, 1-4, and Form A. Form B is optional.
              (c) Quantities to be declared. If you produced in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year, you must declare the entire quantity of such production, rounded to the nearest gram. You must also declare the quantity of any Schedule 1, Schedule 2 or Schedule 3 precursor used to produce the declared Schedule 1 chemical, rounded to the nearest gram. You must further declare the quantity of each Schedule 1 chemical consumed or stored by, or domestically transferred from, your facility, whether or not the Schedule 1 chemical was produced by your facility, rounded to the nearest gram. In calculating the amount of Schedule 1 chemical you produced, consumed or stored, count only the amount of the Schedule 1 chemical(s) in a mixture, not the total weight of the mixture (i.e., do not count the weight of the solution, solvent, or container).
              (d) For the purpose of determining if a Schedule 1 chemical is subject to declaration, you must declare a Schedule 1 chemical that is an intermediate, but not a transient intermediate.
              (e) “Declared” Schedule 1 facilities and routine inspections. Only facilities that submitted a declaration pursuant to paragraph (a)(1) or (a)(2) of this section or § 712.4 of the CWCR are considered “declared” Schedule 1 facilities. A “declared” Schedule 1 facility is subject to initial and routine inspection by the OPCW (see part 716 of the CWCR).
              (f) Approval of declared Schedule 1 production facilities. Facilities that submit declarations pursuant to this section are considered approved Schedule 1 production facilities for purposes of the CWC, unless otherwise notified by BIS within 30 days of receipt by BIS of an annual declaration on past activities or annual declaration on anticipated activities (see paragraphs (a)(1) and (a)(2) of this section). If your facility does not produce more than 100 grams aggregate of Schedule 1 chemicals, no approval by BIS is required.
              (g) Withdrawal of Schedule 1 initial declarations. A facility subject to §§ 712.3, 712.4 and 712.5 of the CWCR may withdraw its initial declaration at any time by notifying BIS in writing. A notification requesting the withdrawal of the initial declaration should be sent on company letterhead to the address in § 711.6 of the CWCR. BIS will acknowledge receipt of the withdrawal of the initial declaration. Facilities withdrawing their initial declaration may not produce subsequently in excess of 100 grams aggregate of Schedule 1 chemicals within a calendar year unless pursuant to § 712.4.

              § 712.6
              Advance notification and annual report of all exports and imports of Schedule 1 chemicals to, or from, other States Parties.
              Pursuant to the Convention, the United States is required to notify the OPCW not less than 30 days in advance of every export or import of a Schedule 1 chemical, in any quantity, to or from another State Party. In addition, the United States is required to provide a report of all exports and imports of Schedule 1 chemicals to or from other States Parties during each calendar year. If you plan to export or import any quantity of a Schedule 1 chemical from or to your declared facility, undeclared facility or trading company, you must notify BIS in advance of the export or import and complete an annual report of exports and imports that actually occurred during the previous calendar year. The United States will transmit to the OPCW the advance notifications and a detailed annual declaration of each actual export or import of a Schedule 1 chemical from/to the United States. Note that the advance notification and annual report requirements of this section do not relieve you of any requirement to obtain a license for export of Schedule 1 chemicals subject to the EAR or ITAR or a license for import of Schedule 1 chemicals from the Department of Justice under the Alcohol, Tobacco, Firearms and Explosives Regulations in 27 CFR part 447. Only “declared” facilities, as defined in § 712.5(e) of the CWCR, are subject to initial and routine inspections pursuant to part 716 of the CWCR.
              (a) Advance notification of exports and imports. You must notify BIS at least 45 calendar days prior to exporting or importing any quantity of a Schedule 1 chemical, except for exports or imports of 5 milligrams or less of Saxitoxin—B (7)—for medical/diagnostic purposes, listed in supplement no. 1 to this part to or from another State Party. Advance notification of export or import of 5 milligrams or less of Saxitoxin for medical/diagnostic purposes only, must be submitted to BIS at least 3 calendar days prior to export or import. Note that advance notifications for exports may be sent to BIS prior to or after submission of a license application to BIS for Schedule 1 chemicals subject to the EAR and controlled under ECCN 1C351 or to the Department of State for Schedule 1 chemicals controlled under the ITAR. Such advance notifications must be submitted separately from license applications.
              (1) Advance notifications should be on company letterhead or must clearly identify the reporting entity by name of company, complete address, name of contact person and telephone and facsimile numbers, along with the following information:
              (i) Chemical name;
              (ii) Structural formula of the chemical;
              (iii) Chemical Abstract Service (CAS) Registry Number;
              (iv) Quantity involved in grams;
              (v) Planned date of export or import;
              (vi) Purpose (end-use) of export or import (i.e., research, medical, pharmaceutical, or protective purposes);
              (vii) Name(s) of exporter and importer;
              (viii) Complete street address(es) of exporter and importer;
              (ix) U.S. export license or control number, if known; and
              (x) Company identification number, once assigned by BIS.
              (2) Send the advance notification either by fax to (202) 482-1731 or by mail or courier delivery to the following address: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 4515, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230, and mark it “Attn: Advance Notification of Schedule 1 Chemical [Export] [Import].”
              (3) Upon receipt of the advance notification, BIS will inform the exporter or importer of the earliest date after which the shipment may occur under the advance notification procedure. To export a Schedule 1 chemical subject to an export license requirement either under the EAR or the ITAR, the exporter must have applied for and been granted a license (see § 742.2 and § 742.18 of the EAR, or the ITAR at 22 CFR parts 120 through 130).
              (b) Annual report requirements for exports and imports of Schedule 1 chemicals. Any person subject to the CWCR that exported or imported any quantity of Schedule 1 chemical to or from another State Party during the previous calendar year has a reporting requirement under this section.
              (1) Annual report on exports and imports. Declared and undeclared facilities, trading companies, and any other person subject to the CWCR that exported or imported any quantity of a Schedule 1 chemical to or from another State Party in a previous calendar year must submit an annual report on exports and imports.
              (2) Report forms to submit—(i) Declared Schedule 1 facilities. (A) If your facility declared production of a Schedule 1 chemical and you also exported or imported any amount of that same Schedule 1 chemical, you must report the export or import by submitting either:
              (1) Combined declaration and report. Submit, along with your declaration, Form 1-3 for that same Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional; or
              (2) Report. Submit, separately from your declaration, a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional.
              (B) If your facility declared production of a Schedule 1 chemical and exported or imported any amount of a different Schedule 1 chemical, you must report the export or import by submitting either:
              (1) Combined declaration and report. Submit, along with your declaration, a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional; or
              (2) Report. Submit, separately from your declaration, a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional.

              (ii) If you are an undeclared facility, trading company, or any other person subject to the CWCR, and you exported or imported any amount of a Schedule 1 chemical, you must report the export or import by submitting a Certification Form, Form 1-1, and a Form 1-3 for each Schedule 1 chemical to be reported. Attach Form A, as appropriate; Form B is optional.

              (c) Paragraph (a) of this section does not apply to the activities and persons set forth in § 712.2(b) of the CWCR.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

              § 712.7
              Amended declaration or report.
              In order for BIS to maintain accurate information on previously submitted facility declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or report requirements, amended declarations or reports will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities and annual reports on exports and imports submitted for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.
              (a) Changes to information that directly affect inspection of a declared facility's Annual Declaration of Past Activities (ADPA) or Annual Declaration on Anticipated Activities (ADAA). You must submit an amended declaration or report to BIS within 15 days of any change in the following information:
              (1) Types of Schedule 1 chemicals produced (e.g., additional Schedule 1 chemicals);
              (2) Quantities of Schedule 1 chemicals produced;
              (3) Activities involving Schedule 1 chemicals; and
              (4) End-use of Schedule 1 chemicals (e.g., additional end-use(s)).
              (b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared facilities, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report for changes to export or import information within 15 days of any change in the following export or import information:
              (1) Types of Schedule 1 chemicals exported or imported (e.g., additional Schedule 1 chemicals);
              (2) Quantities of Schedule 1 chemicals exported or imported;
              (3) Destination(s) of Schedule 1 chemicals exported;
              (4) Source(s) of Schedule 1 chemicals imported;
              (5) Activities involving exports and imports of Schedule 1 chemicals; and
              (6) End-use(s) of Schedule 1 chemicals exported or imported (e.g., additional end-use(s)).
              (c) Changes to company and facility information previously submitted to BIS in the ADPA, the ADAA, and the Annual Report on Exports and Imports—(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information:
              (i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
              (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), and facsimile number(s);
              (iii) Company name (see § 712.7(c)(2) of the CWCR for other company changes);
              (iv) Company mailing address;
              (v) Facility name;
              (vi) Facility owner, including telephone number, and facsimile number; and
              (vii) Facility operator, including telephone number, and facsimile number.
              (2) Change in ownership of company or facility. If you sold or purchased a declared facility or trading company, you must submit an amended declaration or report to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration or report must include the following information:
              (i) Information that must be submitted to BIS by the company selling a declared facility:
              (A) Name of seller (i.e., name of the company selling a declared facility);
              (B) Name of the declared facility and U.S. Code Number for that facility;
              (C) Name of purchaser (i.e., name of the new company purchasing a declared facility) and identity of contact person for the purchaser, if known;
              (D) Date of ownership transfer or change;

              (E) Additional details on sale of the declared facility relevant to ownership or operational control over any portion of that facility (e.g., whether the entire facility or only a portion of the declared facility has been sold to a new owner); and
              (F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company.
              (1) If the new owner is responsible for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the facility.
              (2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the facility (“part-year declarations”), and if, at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in §§ 712.4 and 712.5 of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.
              (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in §§ 712.4 and 712.5 of the CWCR, BIS will return the declarations without action as set forth in § 712.8 of the CWCR.
              (4) If part-year reports are submitted by the previous owner and the new owner as required in § 712.5 of the CWCR, BIS will submit both reports in the OPCW.
              (ii) Information that must be submitted to BIS by the company purchasing a declared facility:
              (A) Name of purchaser (i.e., name of company purchasing a declared facility;
              (B) Mailing address of purchaser;
              (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
              (D) Name of inspection points of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e-mail address(es);
              (E) Name of the declared facility and U.S. Code Number for that facility;
              (F) Location of the declared facility;
              (G) Owner and operator of the declared facility, including telephone number, and facsimile number; and
              (H) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the facility or trading company.
              (1) If the new owner is taking responsibility for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the facility.
              (2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the facility, and, at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in §§ 712.4 and 712.5 of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.
              (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in §§ 712.4 and 712.5 of the CWCR, BIS will return the declarations without action as set forth in § 712.8 of the CWCR.
              (4) If part-year reports are submitted by the previous owner and the new owner as required in § 712.5 of the CWCR, BIS will submit both reports to the OPCW.

                Note 1 to § 712.7(c):

                You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

                Note 2 to § 712.7(c):
                You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared facility or trading company.

                Note 3 to § 712.7(c):
                For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the facility or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers for the new facilities.

              (d) Inspection-related amendments. If, following completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to §§ 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of the BIS post-inspection letter.
              (e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non-substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report.
              (f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either:
              (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or
              (2) Both of the following:
              (i) A new Certification Form (i.e., Form 1-1); and
              (ii) The specific forms (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the provisions of this part 712, to amend your declaration or report.

              § 712.8
              Declarations and reports returned without action by BIS.
              If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter.

              § 712.9
              Deadlines for submission of Schedule 1 declarations, reports, advance notifications, and amendments.
              Declarations, reports, advance notifications, and amendments required under this part must be postmarked by the appropriate date identified in supplement no. 2 to this part 712. Required declarations, reports, advance notifications, and amendments include:
              (a) Annual declaration on past activities (Schedule 1 chemical production during the previous calendar year);
              (b) Annual report on exports and imports of Schedule 1 chemicals from facilities, trading companies, and other persons (during the previous calendar year);
              (c) Combined declaration and report (production of Schedule 1 chemicals, as well as exports or imports of the same or different Schedule 1 chemicals, by a declared facility during the previous calendar year);
              (d) Annual declaration on anticipated activities (anticipated production of Schedule 1 chemicals in the next calendar year);
              (e) Advance notification of any export to or import from another State Party;
              (f) Initial declaration of a new Schedule 1 chemical production facility; and
              (g) Amended declaration or report, including combined declaration and report.

              Pt. 712, Supp. No. 1
              Supplement No. 1 to Part 712—Schedule 1 Chemicals

                  (CAS registry number)

                  A. Toxic chemicals:

                  (1) O-Alkyl (≤C10, incl. cycloalkyl) alkyl (Me, Et, n-Pr or i-Pr)-phosphonofluoridates

                  e.g. Sarin: O-Isopropyl methylphosphonofluoridate
                  (107-44-8)

                  Soman: O-Pinacolyl methylphosphonofluoridate
                  (96-64-0)

                  (2) O-Alkyl (≤C10, incl. cycloalkyl) N,N-dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidocyanidates e.g. Tabun: O-Ethyl N,N-dimethyl phosphoramidocyanidate
                  (77-81-6)

                  (3) O-Alkyl (H or ≤C10, incl. cycloalkyl) S-2-dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, n-Pr or i-Pr) phosphonothiolates and corresponding alkylated or protonated salts e.g. VX: O-Ethyl S-2-diisopropylaminoethyl methyl phosphonothiolate
                  (50782-69-9)

                  (4) Sulfur mustards:

                  2-Chloroethylchloromethylsulfide
                  (2625-76-5)

                  Mustard gas: Bis(2-chloroethyl)sulfide
                  (505-60-2)

                  Bis(2-chloroethylthio)methane
                  (63869-13-6)

                  Sesquimustard: 1,2-Bis(2-chloroethylthio)ethane
                  (3563-36-8)

                  1,3-Bis(2-chloroethylthio)-n-propane
                  (63905-10-2)

                  1,4-Bis(2-chloroethylthio)-n-butane
                  (142868-93-7)

                  1,5-Bis(2-chloroethylthio)-n-pentane
                  (142868-94-8)

                  Bis(2-chloroethylthiomethyl)ether
                  (63918-90-1)

                  O-Mustard: Bis(2-chloroethylthioethyl)ether
                  (63918-89-8)

                  (5) Lewisites:

                  Lewisite 1: 2-Chlorovinyldichloroarsine
                  (541-25-3)

                  Lewisite 2: Bis(2-chlorovinyl)chloroarsine
                  (40334-69-8)

                  Lewisite 3: Tris(2-chlorovinyl)arsine
                  (40334-70-1)

                  (6) Nitrogen mustards:

                  HN1: Bis(2-chloroethyl)ethylamine
                  (538-07-8)

                  HN2: Bis(2-chloroethyl)methylamine
                  (51-75-2)

                  HN3: Tris(2-chloroethyl)amine
                  (555-77-1)

                  (7) Saxitoxin
                  (35523-89-8)

                  (8) Ricin
                  (9009-86-3)

                  B. Precursors:

                  (9) Alkyl (Me, Et, n-Pr or i-Pr) phosphonyldifluorides e.g. DF: Methylphosphonyldifluoride
                  (676-99-3)

                  (10) O-Alkyl (H or ≤C10, incl. cycloalkyl) O-2-dialkyl (Me, Et, n-Pr or i-Pr)-aminoethyl alkyl (Me, Et, N-Pr or i-Pr) phosphonites and corresponding alkylated or protonated salts e.g. QL: O-Ethyl O-2-diisopropylaminoethyl methylphosphonite
                  (57856-11-8)

                  (11) Chlorosarin: O-Isopropyl methylphosphonochloridate
                  (1445-76-7)

                  (12) Chlorosoman: O-Pinacolyl methylphosphonochloridate
                  (7040-57-5)

                Notes to Supplement No. 1

                  Note 1: Note that the following Schedule 1 chemicals are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List): Saxitoxin (35523-89-8) and Ricin (9009-86-3).

                  Note 2: All Schedule 1 chemicals not listed in Note 1 to this Supplement are controlled for export purposes by the Directorate of Defense Trade Controls of the Department of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130).

              Pt. 712, Supp. No. 2
              Supplement No. 2 to Part 712—Deadlines for Submission of Schedule 1 Declarations, Advance Notifications, Reports, and Amendments

                  Declarations, advance notifications and reports
                  Applicable forms
                  Due dates

                  Annual Declaration on Past Activities (previous calendar year)—Declared facility (past production)
                  Certification, 1-1, 1-2,1-2A,1-2B, A (as appropriate), B (optional)
                  February 28th of the year following any calendar year in which more than 100 grams aggregate of Schedule 1 chemicals were produced,

                  Annual report on exports and imports (previous calendar year) (facility, trading company, other persons)
                  Certification, 1-1,1-3, A (as appropriate), B (optional)
                  February 28th of the year following any calendar year in which Schedule 1 chemicals were exported or imported.

                  Combined Declaration and Report
                  Certification, 1-1, 1-2, 1-2A, 1-2B, 1-3, A (as appropriate), B (optional)
                  February 28th of the year following any calendar year in which Schedule 1 chemicals were produced, exported, or imported.

                  Annual Declaration of Anticipated Activities (next calendar year)
                  Certification, 1-1, 1-4, A (as appropriate), B (optional)
                  September 3rd of the year prior to any calendar year in which Schedule 1 activities are anticipated to occur.

                  Advance Notification of any export to or import from another State Party
                  Notify on letterhead. See § 712.6 of the CWCR
                  45 calendar days prior to any export or import of Schedule 1 chemicals, except 3 days prior to export or import of 5 milligrams or less of saxitoxin for medical/diagnositc purposes.

                  Initial Declaration of a new Schedule 1 facility (technical description)
                  Certification, 1-1, A (as appropriate), B (optional)
                  200 calendar days prior to producing in excess of 100 grams aggregate of Schedule 1 chemicals.

                  Amended Declaration
                  Certification, 1-1, 1-2, 1-2A

                  —Chemicals/Activities: § 712.7(a)

                  —15 calendar days after change in information.

                  —Company information: § 712.7(c)

                  —30 calendar days after change in information.

                  —Post-inspection letter: § 712.7(d)

                  —45 calendar days after receipt of letter.

                  Amended Report § 712.7(b)
                  Certification, 1-1, 1-3, A (as appropriate), B (optional)
                  —15 calendar days after change in information.

                  Amended Combined Declaration & Report
                  Certification, 1-1, 1-2, 1-2A, 1-3, A (as appropriate), B (optional)
                  —15 calendar days after change in information.

            Pt. 713
            PART 713—ACTIVITIES INVOLVING SCHEDULE 2 CHEMICALS

              Sec.
              713.1
              Prohibition on exports and imports of Schedule 2 chemicals to and from States not Party to the CWC.
              713.2
              Annual declaration requirements for plant sites that produce, process or consume Schedule 2 chemicals in excess of specified thresholds.
              713.3
              Annual declaration and reporting requirements for exports and imports of Schedule 2 chemicals.
              713.4
              Advance declaration requirements for additionally planned production, processing or consumption of Schedule 2 chemicals.
              713.5
              Amended declaration or report.
              713.6
              Declarations and reports returned without action by BIS.
              713.7
              Deadlines for submission of Schedule 2 declarations, reports, and amendments.
              Supplement No. 1 to Part 713—Schedule 2 Chemicals
              Supplement No. 2 to Part 713—Deadlines for Submission of Schedule 2 Declarations, Reports, and Amendments

              Authority:
              22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938 59 FR 59099, 3 CFR, 1994 Comp., p. 950, as amended by E.O. 13094, 63 FR 40803, 3 CFR, 1998 Comp., p. 200; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 713.1
              Prohibition on exports and imports of Schedule 2 chemicals to and from States not Party to the CWC.

              (a) You may not export any Schedule 2 chemical (see supplement no. 1 to this part) to any destination or import any Schedule 2 chemical from any destination other than a State Party to the Convention. See supplement no. 1 to part 710 of the CWCR for a list of States that are party to the Convention.

                Note to § 713.1(a):
                See § 742.18 of the Export Administration Regulations (EAR) (15 CFR part 742) for prohibitions that apply to exports of Schedule 2 chemicals to States not Party to the CWC.

              (b) Paragraph (a) of this section does not apply to:
              (1) The export or import of a Schedule 2 chemical to or from a State not Party to the CWC by a department, agency, or other entity of the United States, or by any person, including a member of the Armed Forces of the United States, who is authorized by law, or by an appropriate officer of the United States to transfer or receive the Schedule 2 chemical;
              (2) Mixtures containing Schedule 2A chemicals, if the concentration of each Schedule 2A chemical in the mixture is 1% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies);
              (3) Mixtures containing Schedule 2B chemicals if the concentration of each Schedule 2B chemical in the mixture is 10% or less by weight (note, however, that such mixtures may be subject to the regulatory requirements of other federal agencies); or
              (4) Products identified as consumer goods packaged for retail sale for personal use or packaged for individual use.

              § 713.2
              Annual declaration requirements for plant sites that produce, process or consume Schedule 2 chemicals in excess of specified thresholds.
              (a) Declaration of production, processing or consumption of Schedule 2 chemicals for purposes not prohibited by the CWC—(1) Quantities of production, processing or consumption that trigger declaration requirements. You must complete the forms specified in paragraph (b) of this section if you have been or will be involved in the following activities:
              (i) Annual declaration on past activities. (A) You produced, processed or consumed at one or more plants on your plant site during any of the previous three calendar years, a Schedule 2 chemical in excess of any of the following declaration threshold quantities:
              (1) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 2, paragraph A.3 in supplement no. 1 to this part);
              (2) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or 100 kilograms of chemical Amiton: 0,0-Diethyl S-[2-(diethylamino) ethyl] phosphorothiolate and corresponding alkylated or protonated salts (see Schedule 2, paragraphs A.1 and A.2 in supplement no. 1 to this part); or
              (3) 1 metric ton of any chemical listed in Schedule 2, Part B (see supplement no. 1 to this part).

              (B) In order to trigger a declaration requirement for a past activity (i.e., production, processing or consumption) involving a Schedule 2 chemical, a plant on your plant site must have exceeded the applicable declaration threshold for that particular activity during one or more of the previous three calendar years. For example, if a plant on your plant site produced 800 kilograms of thiodiglycol and consumed 300 kilograms of the same Schedule 2 chemical, during the previous calendar year, you would not have a declaration requirement based on these activities, because neither activity at your plant would have exceeded the declaration threshold of 1 metric ton for that Schedule 2 chemical. However, a declaration requirement would apply if an activity involving a Schedule 2 chemical at the plant exceeded the declaration threshold in an earlier year (i.e., during the course of any other calendar year within the past three calendar years), as indicated in the example provided in the note to this paragraph.

                Note to § 713.2(a)(1)(i)(B):
                To determine whether or not you have an annual declaration on past activities requirement for Schedule 2 chemicals, you must determine whether you produced, processed or consumed a Schedule 2 chemical above the applicable threshold at one or more plants on your plant site in any one of the three previous calendar years. For example, for the 2004 annual declaration on past activities period, if you determine that one plant on your plant site produced greater than 1 kilogram of the chemical BZ in calendar year 2002, and no plants on your plant site produced, processed or consumed any Schedule 2 chemical above the applicable threshold in calendar years 2003 or 2004, you still have a declaration requirement under this paragraph for the previous calendar year (2004). However, you must only declare on Form 2-3 (question 2-3.1), production data for calendar year 2004. You would declare “0” production because you did not produce BZ above the applicable threshold in calendar year 2004. Since the plant site did not engage in any other declarable activity (i.e., consumption, processing) in the 2002-2004 declaration period, you would leave blank questions 2-3.2 and 2-3.3 on Form 2-3. Note that declaring a “0” production quantity for 2004, as opposed to leaving the question blank, permits BIS to distinguish the activity that triggered the declaration requirement from activities that were not declarable during that period.

              (ii) Annual declaration on anticipated activities. You anticipate that you will produce, process or consume at one or more plants on your plant site during the next calendar year, a Schedule 2 chemical in excess of the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section.

                Note to § 713.2(a)(1)(ii):
                A null “0” declaration is not required if you do not plan to produce, process or consume a Schedule 2 chemical in the next calendar year.

              (2) Schedule 2 chemical production. (i) For the purpose of determining Schedule 2 production, you must include all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.

              (ii) For the purpose of determining if a Schedule 2 chemical is subject to declaration, you must declare an intermediate Schedule 2 chemical, but not a transient intermediate Schedule 2 chemical.
              (3) Mixtures containing a Schedule 2 chemical—(i) Mixtures that must be counted. You must count the quantity of each Schedule 2 chemical in a mixture, when determining the total quantity of a Schedule 2 chemical produced, processed, or consumed at a plant on your plant site, if the concentration of each Schedule 2 chemical in the mixture is 30% or more by volume or by weight, whichever yields the lesser percent. Do not count a Schedule 2 chemical in the mixture that represents less than 30% by volume or by weight.
              (ii) How to count the quantity of each Schedule 2 chemical in a mixture. If your mixture contains 30% or more concentration of a Schedule 2 chemical, you must count the quantity (weight) of each Schedule 2 chemical in the mixture, not the total weight of the mixture. You must separately declare each Schedule 2 chemical with a concentration in the mixture that is 30% or more and exceeds the quantity threshold detailed in paragraphs (a)(1)(i)(A)(1) through (3) of this section.
              (iii) Determining declaration requirements for production, processing and consumption. If the total quantity of a Schedule 2 chemical produced, processed or consumed at a plant on your plant site, including mixtures that contain 30% or more concentration of a Schedule 2 chemical, exceeds the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section, you have a declaration requirement. For example, if during calendar year 2001, a plant on your plant site produced a mixture containing 300 kilograms of thiodiglycol in a concentration of 32% and also produced 800 kilograms of thiodiglycol, the total amount of thiodiglycol produced at that plant for CWCR purposes would be 1100 kilograms, which exceeds the declaration threshold of 1 metric ton for that Schedule 2 chemical. You must declare past production of thiodiglycol at that plant site for calendar year 2001. If, on the other hand, a plant on your plant site processed a mixture containing 300 kilograms of thiodiglycol in a concentration of 25% and also processed 800 kilograms of thiodiglycol in other than mixture form, the total amount of thiodiglycol processed at that plant for CWCR purposes would be 800 kilograms and would not trigger a declaration requirement. This is because the concentration of thiodiglycol in the mixture is less than 30% and therefore did not have to be “counted” and added to the other 800 kilograms of processed thiodiglycol at that plant.
              (b) Types of declaration forms to be used—(1) Annual declaration on past activities. You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, and Form A if one or more plants on your plant site produced, processed or consumed more than the applicable threshold quantity of a Schedule 2 chemical described in paragraphs (a)(1)(i)(A)(1) through (3) of this section in any of the three previous calendar years. Form B is optional. If you are subject to annual declaration requirements, you must include data for the previous calendar year only.
              (2) Annual declaration on anticipated activities. You must complete the Certification Form and Forms 2-1, 2-2, 2-3, 2-3A, 2-3C, and Form A if you plan to produce, process, or consume at any plant on your plant site a Schedule 2 chemical above the applicable threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section during the following calendar year. Form B is optional.
              (c) Quantities to be declared—(1) Production, processing and consumption of a Schedule 2 chemical above the declaration threshold—(i) Annual declaration on past activities. If you are required to complete forms pursuant to paragraph (a)(1)(i) of this section, you must declare the aggregate quantity resulting from each type of activity (production, processing or consumption) from each plant on your plant site that exceeds the applicable threshold for that Schedule 2 chemical. Do not include in these aggregate production, processing, and consumption quantities any data from plants on the plant site that did not individually produce, process or consume a Schedule 2 chemical in amounts greater than the applicable threshold. For example, if a plant on your plant site produced a Schedule 2 chemical in an amount greater than the applicable declaration threshold during the previous calendar year, you would have to declare only the production quantity from that plant, provided that the total amount of the Schedule 2 chemical processed or consumed at the plant did not exceed the applicable declaration threshold during any one of the previous three calendar years. If in the previous calendar year your production, processing and consumption activities all were below the applicable declaration threshold, but your declaration requirement is triggered because of production activities occurring in an earlier year, you would declare “0” only for the declared production activities.
              (ii) Annual declaration on anticipated activities. If you are required to complete forms pursuant to paragraph (a)(1)(ii) of this section, you must declare the aggregate quantity of any Schedule 2 chemical that you plan to produce, process or consume at any plant(s) on your plant site above the applicable thresholds set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section during the next calendar year. Do not include in these anticipated aggregate production, processing, and consumption quantities any data from plants on the plant site that you do not anticipate will individually produce, process or consume a Schedule 2 chemical in amounts greater than the applicable thresholds.
              (2) Rounding. For the chemical BZ, report quantities to the nearest hundredth of a kilogram (10 grams). For PFIB and the Amiton family, report quantities to the nearest 1 kilogram. For all other Schedule 2 chemicals, report quantities to the nearest 10 kilograms.
              (d) “Declared” Schedule 2 plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a “declared” plant site.
              (e) Declared Schedule 2 plant sites subject to initial and routine inspections. A “declared” Schedule 2 plant site is subject to initial and routine inspection by the Organization for the Prohibition of Chemical Weapons if it produced, processed or consumed in any of the three previous calendar years, or is anticipated to produce, process or consume in the next calendar year, in excess of ten times the applicable declaration threshold set forth in paragraphs (a)(1)(i)(A)(1) through (3) of this section (see part 716 of the CWCR). A “declared” Schedule 2 plant site that has received an initial inspection is subject to routine inspection.

              § 713.3
              Annual declaration and reporting requirements for exports and imports of Schedule 2 chemicals.
              (a) Declarations and reports of exports and imports of Schedule 2 chemicals—(1) Declarations. A Schedule 2 plant site that is declared because it produced, processed or consumed a Schedule 2 chemical at one or more plants above the applicable threshold set forth in paragraph (b) of this section, and also exported from or imported to the plant site that same Schedule 2 chemical above the applicable threshold, must submit export and import information as part of its declaration.
              (2) Reports. The following persons must submit a report if they individually exported or imported a Schedule 2 chemical above the applicable threshold indicated in paragraph (b) of this section:
              (i) A declared plant site that exported or imported a Schedule 2 chemical that was different than the Schedule 2 chemical produced, processed or consumed at one or more plants at the plant site above the applicable declaration threshold;
              (ii) An undeclared plant site;
              (iii) A trading company; or
              (iv) Any other person subject to the CWCR.

                Note to § 713.3(a)(1) and (a)(2)(i):
                A declared Schedule 2 plant site may need to declare exports or imports of Schedule 2 chemicals that it produced, processed or consumed above the applicable threshold and also report exports or imports of different Schedule 2 chemicals that it did not produce, process or consume above the applicable threshold quantities. The report may be submitted to BIS either with or separately from the annual declaration on past activities (see § 713.3(d) of the CWCR).

                Note to § 713.3(a)(2):

                The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 2 chemicals contained in reports. The U.S. Government will add all export and import information contained in reports to export and import information contained in declarations to establish the U.S. national aggregate declaration on exports and imports.

                Note to § 713.3(a)(1) and (2):

                Declared and undeclared plant sites must count, for declaration or reporting purposes, all exports from and imports to the entire plant site, not only from or to individual plants on the plant site.

              (b) Quantities of exports or imports that trigger a declaration or reporting requirement. (1) You have a declaration or reporting requirement and must complete the forms specified in paragraph (d) of this section if you exported or imported a Schedule 2 chemical in excess of the following threshold quantities:
              (i) 1 kilogram of chemical BZ: 3-Quinuclidinyl benzilate (See Schedule 2, paragraph A.3 included in supplement no. 1 to this part);

              (ii) 100 kilograms of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or 100 kilograms of Amiton: O,O Diethyl S-[2(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (see Schedule 2, paragraphs A.1 and A.2 included in supplement no.1 to this part); or
              (iii) 1 metric ton of any chemical listed in Schedule 2, Part B (see supplement no.1 to this part).
              (2) Mixtures containing a Schedule 2 chemical. The quantity of each Schedule 2 chemical contained in a mixture must be counted for the declaration or reporting of an export or import only if the concentration of each Schedule 2 chemical in the mixture is 30% or more by volume or by weight, whichever yields the lesser percent. You must declare separately each Schedule 2 chemical whose concentration in the mixture is 30% or more.

                Note 1 to § 713.3(b)(2):
                See § 713.2(a)(2)(ii) of the CWCR for information on counting amounts of Schedule 2 chemicals contained in mixtures and determining declaration and reporting requirements.

                Note 2 to § 713.3(b)(2):
                The “30% and above” mixtures rule applies only for declaration and reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non-State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see § 742.2, § 742.18 and § 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through130)).

              (c) Declaration and reporting requirements—(1) Annual declaration on past activities. A plant site described in paragraph (a)(1) of this section that has an annual declaration requirement for the production, processing, or consumption of a Schedule 2 chemical for the previous calendar year also must declare the export and/or import of that same Schedule 2 chemical if the amount exceeded the applicable threshold set forth in paragraph (b) of this section. The plant site must declare such export or import information as part of its annual declaration of past activities.
              (2) Annual report on exports and imports. Declared plant sites described in paragraph (a)(2)(i) of this section, and undeclared plant sites, trading companies or any other person (described in paragraphs (a)(2)(ii) through (iv) of this section) subject to the CWCR that exported or imported a Schedule 2 chemical in a previous calendar year in excess of the applicable thresholds set forth in paragraph (b) of this section must submit an annual report on such exports or imports.
              (d) Types of declaration and reporting forms to be used—(1) Annual declaration on past activities. If you are a declared Schedule 2 plant site, as described in paragraph (a)(1) of this section, you must complete Form 2-3B, in addition to the forms required by § 713.2(b)(1) of the CWCR, for each declared Schedule 2 chemical exported or imported above the applicable threshold in the previous calendar year.
              (2) Annual report on exports and imports. (i) If you are a declared plant site, as described in paragraph (a)(2)(i) of this section, you may fulfill your annual reporting requirements by:
              (A) Submitting, with your annual declaration on past activities, a Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional; or
              (B) Submitting, separately from your annual declaration on past activities, a Certification Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional.
              (ii) If you are an undeclared plant site, trading company or any other person subject to the CWCR, you must complete the Certification Form, Form 2-1, and Form 2-3B for each Schedule 2 chemical you exported or imported above the applicable threshold. Attach Form A, as appropriate; Form B is optional.
              (e) Quantities to be declared—(1) Calculations. If you exported from or imported to your plant site, trading company, or other location more than the applicable threshold of a Schedule 2 chemical in the previous calendar year, you must declare or report all exports and imports of that chemical by country of destination or country of origin, respectively, and indicate the total amount exported to or imported from each country.
              (2) Rounding. For purposes of declaring or reporting exports and imports of a Schedule 2 chemical, you must total all exports and imports per calendar year per recipient or source and then round as follows: For the chemical BZ, the total quantity for each country of destination or country of origin (source) should be reported to the nearest hundredth of a kilogram (10 grams); for PFIB and Amiton and corresponding alkylated or protonated salts, the quantity for each destination or source should be reported to the nearest 1 kilogram; and for all other Schedule 2 chemicals, the total quantity for each destination or source should be reported to the nearest 10 kilograms.

              § 713.4
              Advance declaration requirements for additionally planned production, processing, or consumption of Schedule 2 chemicals.
              (a) Declaration requirements for additionally planned activities. (1) You must declare additionally planned production, processing, or consumption of Schedule 2 chemicals after the annual declaration on anticipated activities for the next calendar year has been delivered to BIS if:
              (i) You plan that a previously undeclared plant on your plant site under § 713.2(a)(1)(ii) of the CWCR will produce, process, or consume a Schedule 2 chemical above the applicable declaration threshold;
              (ii) You plan to produce, process, or consume at a plant declared under § 713.2(a)(1)(ii) of the CWCR an additional Schedule 2 chemical above the applicable declaration threshold;
              (iii) You plan an additional activity (production, processing, or consumption) at your declared plant above the applicable declaration threshold for a chemical declared under § 713.2(a)(1)(ii) of the CWCR;
              (iv) You plan to increase the production, processing, or consumption of a Schedule 2 chemical by a plant declared under § 713.2(a)(1)(ii) of the CWCR from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see § 716.1(b)(2) of the CWCR);
              (v) You plan to change the starting or ending date of anticipated production, processing, or consumption declared under § 713.2(a)(1)(ii) of the CWCR by more than three months; or
              (vi) You plan to increase your production, processing, or consumption of a Schedule 2 chemical by a declared plant site by 20 percent or more above that declared under § 713.2(a)(1)(ii) of the CWCR.
              (2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (vi) of this section, you also should declare changes to your declaration relating to the following activities. You do not have to submit an additionally planned declaration if you are only changing the following non-quantitative activities:
              (i) Changes to the plant's production capacity;
              (ii) Changes or additions to the product group codes for the plant site or the plant(s);
              (iii) Changes to the plant's activity status (i.e., dedicated, multipurpose, or other status);
              (iv) Changes to the plant's multipurpose activities;

              (v) Changes to the plant site's status relating to domestic transfer of the chemical;

              (vi) Changes to the plant site's purposes for which the chemical will be produced, processed or consumed; or
              (vii) Changes to the plant site's status relating to exports of the chemical or the addition of new countries for export.
              (b) Declaration forms to be used. If you are required to declare additionally planned activities pursuant to paragraph (a) of this section, you must complete the Certification Form and Forms 2-1, 2-2, 2-3, and 2-3C as appropriate. Such forms are due to BIS at least 15 days prior to beginning the additional activity.

              § 713.5
              Amended declaration or report.
              In order for BIS to maintain accurate information on previously submitted plant site declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or reporting requirements, amended declarations or reports will be required under the circumstances described in this section. This section applies only to annual declarations on past activities submitted for the three previous calendar years, annual reports on exports and imports for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.
              (a) Changes to information that directly affect inspection of a declared plant site's Annual Declaration of Past Activities (ADPA) or Combined Annual Declaration and Report. You must submit an amended declaration or report to BIS within 15 days of any change in the following information:
              (1) Types of Schedule 2 chemicals produced, processed, or consumed;
              (2) Quantities of Schedule 2 chemicals produced, processed, or consumed;
              (3) Activities involving Schedule 2 chemicals (production, processing, consumption);
              (4) End-use of Schedule 2 chemicals (e.g., additional end-use(s));
              (5) Product group codes for Schedule 2 chemicals produced, processed, or consumed;
              (6) Production capacity for manufacturing a specific Schedule 2 chemical at particular plant site;
              (7) Exports or imports (e.g., changes in the types of Schedule 2 chemicals exported or imported or in the quantity, recipients, or sources of such chemicals);
              (8) Domestic transfers (e.g., changes in the types of Schedule 2 chemicals, types of destinations, or product group codes); and
              (9) Addition of new plant(s) for the production, processing, or consumption of Schedule 2 chemicals.
              (b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared plant sites, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report to BIS within 15 days of any change in the following export or import information:
              (1) Types of Schedule 2 chemicals exported or imported (additional Schedule 2 chemicals);
              (2) Quantities of Schedule 2 chemicals exported or imported;
              (3) Destination(s) of Schedule 2 chemicals exported; and
              (4) Source(s) of Schedule 2 chemicals imported.
              (c) Changes to company and plant site information that must be maintained by BIS for the ADPA, Annual Declaration on Anticipated Activities (ADAA), and the Annual Report on Exports and Imports—(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information:
              (i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
              (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number(s), facsimile number(s) and e-mail address(es);
              (iii) Company name (see paragraph (c)(2) of this section for other company changes);
              (iv) Company mailing address;
              (v) Plant site name;
              (vi) Plant site owner, including telephone number, and facsimile number;
              (vii) Plant site operator, including telephone number, and facsimile number;
              (viii) Plant name;

              (ix) Plant owner, including telephone number, and facsimile number; and
              (x) Plant operator, including telephone number and facsimile number.
              (2) Change in ownership of company, plant site, or plant. If you sold or purchased a declared plant site, plant, or trading company you must submit an amended declaration or report to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration or report must include the following information:
              (i) Information that must be submitted to BIS by the company selling a declared plant site:
              (A) Name of seller (i.e., name of the company selling a declared plant site);
              (B) Name of the declared plant site and U.S. Code Number for that plant site;
              (C) Name of purchaser (i.e., name of the new company/owner purchasing a declared plant site) and identity of contact person for the purchaser, if known;
              (D) Date of ownership transfer or change;
              (E) Additional (e.g., unique) details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and
              (F) Details regarding whether the new owner will submit the next declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.
              (1) If the new owner is responsible for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site.
              (2) If the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site, and, if at the time of transfer of ownership, the previous owner's activities are not above the declaration or reporting thresholds set forth in § 713.2(a)(1)(i)(A)(1) through (3) and § 713.3(b)(1)(i) through (iii) of the CWCR, respectively, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.
              (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration thresholds set forth in § 713.2(a)(1)(i)(A)(1) through (3) of the CWCR, BIS will return the declarations without action as set forth in § 713.6 of the CWCR.
              (4) If part-year reports submitted by the previous owner and the new owner are not, when combined, above the thresholds in §§ 713.3(b)(1)(i) through (iii) of the CWCR, BIS will return the reports without action as set forth in § 713.6 of the CWCR.
              (ii) Information that must be submitted to BIS by the company purchasing a declared plant site:
              (A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);
              (B) Mailing address of purchaser;
              (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
              (D) Name of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s) and e-mail address(es);
              (E) Name of the declared plant site and U.S. Code Number for that plant site;
              (F) Location of the declared plant site;
              (G) Owner of the declared plant site, including telephone number, and facsimile number;
              (H) Operator of the declared plant site, including telephone number, and facsimile number;
              (I) Name of plant(s) where Schedule 2 activities exceed the applicable declaration threshold;

              (J) Owner and operator of plant(s) where Schedule 2 activities exceed the applicable declaration threshold, including telephone numbers, and facsimile numbers;

              (K) Location of the plant where Schedule 2 activities exceed the applicable declaration threshold; and

              (L) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.

                Note 1 to § 713.5(c):
                You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

                Note 2 to § 713.5(c):
                You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company.

                Note 3 to § 713.5(c):
                For ownership changes, the declared facility or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.

              (d) Inspection-related amendments. If, following the completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to §§ 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of BIS's post-inspection letter.
              (e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non-substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report.
              (f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either:
              (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or
              (2) Both of the following:
              (i) A new Certification Form; and
              (ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report.

              § 713.6
              Declarations and reports returned without action by BIS.
              If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action (RWA). However, BIS will maintain a copy of the RWA letter.

              § 713.7
              Deadlines for submission of Schedule 2 declarations, reports, and amendments.
              Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in supplement no. 2 to this part 713. Required declarations, reports, and amendments include:
              (a) Annual declaration on past activities (production, processing, or consumption of Schedule 2 chemicals during the previous calendar year);

              (b) Annual report on exports and imports of Schedule 2 chemicals by plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year);
              (c) Combined declaration and report (production, processing, or consumption of Schedule 2 chemicals, as well as exports or imports of the same or different Schedule 2 chemicals, by a declared plant site during the previous calendar year);
              (d) Annual declaration on anticipated activities (production, processing or consumption) involving Schedule 2 chemicals during the next calendar year;
              (e) Declaration on Additionally Planned Activities (production, processing or consumption) involving Schedule 2 chemicals; and
              (f) Amended declaration and report, including combined declaration and report.

              Pt. 713, Supp. No. 1
              Supplement No. 1 to Part 713—Schedule 2 Chemicals

                  (CAS registry number)

                  A. Toxic chemicals:

                  (1) Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts
                  (78-53-5)

                  (2) PFIB: 1,1,3,3,3-Pentafluoro-2-(trifluoromethyl)-1-propene
                  (382-21-8)

                  (3) BZ: 3-Quinuclidinyl benzilate
                  (6581-06-2)

                  B. Precursors:

                  (4) Chemicals, except for those listed in Schedule 1, containing a phosphorus atom to which is bonded one methyl, ethyl or propyl (normal or iso) group but not further carbon atoms, e.g. Methylphosphonyl dichloride
                  (676-97-1)

                  Dimethyl methylphosphonate
                  (756-79-6)

                  Exemption: Fonofos: O-Ethyl S-phenyl ethylphosphono-thiolothionate
                  (944-22-9)

                  (5) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides

                  (6) Dialkyl (Me, Et, n-Pr or i-Pr) N,N-dialkyl (Me, Et, n-Pr or i-Pr)-phosphoramidates

                  (7) Arsenic trichloride
                  (7784-34-1)

                  (8) 2,2-Diphenyl-2-hydroxyacetic acid
                  (76-93-7)

                  (9) Quinuclidine-3-ol
                  (1619-34-7)

                  (10) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl-2-chlorides and corresponding protonated salts

                  (11) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-ols and corresponding protonated salts

                  Exemptions: N,N-Dimethylaminoethanol and corresponding protonated salts
                  (108-01-0)

                  N,N-Diethylaminoethanol and corresponding protonated salts
                  (100-37-8)

                  (12) N,N-Dialkyl (Me, Et, n-Pr or i-Pr) aminoethane-2-thiols and corresponding protonated salts

                  (13) Thiodiglycol: Bis(2-hydroxyethyl)sulfide
                  (111-48-8)

                  (14) Pinacolyl alcohol: 3,3-Dimethylbutane-2-ol
                  (464-07-3)

                Notes to Supplement No. 1

                  Note 1: Note that the following Schedule 2 chemicals are controlled for export purposes by the Directorate of Defense Trade Controls of the Department of State under the International Traffic in Arms Regulations (22 CFR parts 120 through 130): Amiton: O,O-Diethyl S-[2-(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (78-53-5); BZ: 3-Quinuclidinyl benzilate 6581-06-2); and Methylphosphonyl dichloride (676-97-1).

                  Note 2: All Schedule 2 chemicals not listed in Note 1 to this Supplement are controlled for export purposes under the Export Administration Regulations (see part 774 of the EAR, the Commerce Control List).

              Pt. 713, Supp. No. 2
              Supplement No. 2 to Part 713—Deadlines for Submission of Schedule 2 Declarations, Reports, and Amendments

                  Declarations and reports
                  Applicable forms
                  Due dates

                  Annual Declaration on Past Activities (previous calendar year)—Declared plant site (production, processing, or consumption)
                  Certification, 2-1, 2-2, 2-3, 2-3A, 2-3B (if also exported or imported), A (as appropriate), B (optional)
                  February 28 of the year following any calendar year in which the production, processing, or consumption of a Schedule 2 chemical exceeded the applicable declaration thresholds in § 713.2(a)(1)(i) of the CWCR.

                  Annual Report on Exports and Imports (previous calendar year)—Plant site, trading company, other persons
                  Certification, 2-1, 2-3B, A (as appropriate), B (optional)
                  February 28 of the year following any calendar year in which exports or imports of a Schedule 2 chemical by a plant site, trading company, or other person subject to the CWCR (as described in § 713.3(a)(2) of the CWCR) exceeded the applicable thresholds in § 713.3(b)(1) of the CWCR.

                  Combined Declaration & Report—Declared plant site (production, processing, or consumption; exports and imports)
                  Certification, 2-1, 2-2, 2-3, 2-3A, 2-3B, A (as appropriate), B (optional)
                  February 28 of the year following any calendar year in which the production, processing, or consumption of a Schedule 2 chemical and the export or import of the same or a different Schedule 2 chemical by a declared plant site exceeded the applicable thresholds in §§ 713.2(a)(1)(i) and 713.3(b)(1), respectively, of the CWCR.

                  Annual Declaration on Anticipated Activities (next calendar year)
                  Certification, 2-1, 2-2, 2-3, 2-3A, 2-3C, A (as appropriate), B (optional)
                  September 3 of the year prior to any calendar year in which Schedule 2 activities are anticipated to occur.

                  Declaration on Additionally Planned Activities (production, processing and consumption)
                  Certification, 2-1, 2-2, 2-3, 2-3A, 2-3C, A (as appropriate), B (optional)
                  15 calendar days before the additionally planned activity begins.

                  Amended Declaration
                  Certification, 2-1, 2-2, 2-3 2-3A, 2-3B (if also exported or imported), A (as appropriate), B (optional)

                  —Declaration information

                  —15 calendar days after change in information.

                  —Company information

                  —30 calendar days after change in information.

                  —Post-inspection letter

                  —45 calendar days after receipt of letter.

                  Amended Report
                  Certification, 2-1, 2-3B, A (as appropriate), B (optional)
                  —15 calendar days after change in information.

                  Amended Combined Declaration & Report
                  Certification, 2-1, 2-2, 2-3, 2-3A, 2-3B, A (as appropriate), B (optional)
                  —15 calendar days after change in information.

            Pt. 714
            PART 714—ACTIVITIES INVOLVING SCHEDULE 3 CHEMICALS

              Sec.
              714.1
              Annual declaration requirements for plant sites that produce a Schedule 3 chemical in excess of 30 metric tons.
              714.2
              Annual reporting requirements for exports and imports in excess of 30 metric tons of Schedule 3 chemicals.
              714.3
              Advance declaration requirements for additionally planned production of Schedule 3 chemicals.
              714.4
              Amended declaration or report.
              714.5
              Declarations and reports returned without action by BIS.
              714.6
              Deadlines for submission of Schedule 3 declarations, reports, and amendments.
              Supplement No. 1 to Part 714—Schedule 3 Chemicals
              Supplement No. 2 to Part 714—Deadlines for Submission of Schedule 3 Declarations, Reports, and Amendments

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 714.1
              Annual declaration requirements for plant sites that produce a Schedule 3 chemical in excess of 30 metric tons.
              (a) Declaration of production of Schedule 3 chemicals for purposes not prohibited by the CWC—(1) Production quantities that trigger the declaration requirement. You must complete the appropriate forms specified in paragraph (b) of this section if you have produced or anticipate producing a Schedule 3 chemical (see supplement no. 1 to this part) as follows:
              (i) Annual declaration on past activities. You produced at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year.
              (ii) Annual declaration on anticipated activities. You anticipate that you will produce at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical in the next calendar year.
              (2) Schedule 3 chemical production. (i) For the purpose of determining Schedule 3 production, you must include all steps in the production of a chemical in any units within the same plant through chemical reaction, including any associated processes (e.g., purification, separation, extraction, distillation, or refining) in which the chemical is not converted into another chemical. The exact nature of any associated process (e.g., purification, etc.) is not required to be declared.

              (ii) For the purpose of determining if a Schedule 3 chemical is subject to declaration, you must declare an intermediate Schedule 3 chemical, but not a transient intermediate Schedule 3 chemical.
              (3) Mixtures containing a Schedule 3 chemical—(i) When you must count the quantity of a Schedule 3 chemical in a mixture for declaration purposes. The quantity of each Schedule 3 chemical contained in a mixture must be counted for declaration purposes only if the concentration of each Schedule 3 chemical in the mixture is 80% or more by volume or by weight, whichever yields the lesser percent.
              (ii) How to count the amount of a Schedule 3 chemical in a mixture. If your mixture contains 80% or more concentration of a Schedule 3 chemical, you must count only the amount (weight) of the Schedule 3 chemical in the mixture, not the total weight of the mixture.
              (b) Types of declaration forms to be used—(1) Annual declaration on past activities. You must complete the Certification Form and Forms 3-1, 3-2, 3-3, and Form A if one or more plants on your plant site produced in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year. Form B is optional.
              (2) Annual declaration on anticipated activities. You must complete the Certification Form, and Forms 3-1 and 3-3 if you anticipate that you will produce at one or more plants on your plant site in excess of 30 metric tons of any single Schedule 3 chemical in the next calendar year.
              (c) Quantities to be declared—(1) Production of a Schedule 3 chemical in excess of 30 metric tons. If your plant site is subject to the declaration requirements of paragraph (a) of this section, you must declare the range within which the production at your plant site falls (30 to 200 metric tons, 200 to 1,000 metric tons, etc.) as specified on Form 3-3. When specifying the range of production for your plant site, you must aggregate the production quantities of all plants on the plant site that produced the Schedule 3 chemical in amounts greater than 30 metric tons. Do not aggregate amounts of production from plants on the plant site that did not individually produce a Schedule 3 chemical in amounts greater than 30 metric tons. You must complete a separate Form 3-3 for each Schedule 3 chemical for which production at your plant site exceeds 30 metric tons.
              (2) Rounding. To determine the production range into which your plant site falls, add all the production of the declared Schedule 3 chemical during the calendar year from all plants on your plant site that produced the Schedule 3 chemical in amounts exceeding 30 metric tons, and round to the nearest ten metric tons.
              (d) “Declared” Schedule 3 plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a “declared” Schedule 3 plant site.
              (e) Routine inspections of declared Schedule 3 plant sites. A “declared” Schedule 3 plant site is subject to routine inspection by the Organization for the Prohibition of Chemical Weapons (see part 716 of the CWCR) if:
              (1) The declared plants on your plant site produced in excess of 200 metric tons aggregate of any Schedule 3 chemical during the previous calendar year; or
              (2) You anticipate that the declared plants on your plant site will produce in excess of 200 metric tons aggregate of any Schedule 3 chemical during the next calendar year.

              § 714.2
              Annual reporting requirements for exports and imports in excess of 30 metric tons of Schedule 3 chemicals.
              (a) Any person subject to the CWCR that exported from or imported into the United States in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year has a reporting requirement under this section.
              (1) Annual report on exports and imports. Declared plant sites, undeclared plant sites, trading companies, or any other person subject to the CWCR that exported from or imported into the United States in excess of 30 metric tons of any single Schedule 3 chemical during the previous calendar year must submit an annual report on exports and imports.

                Note 1 to § 714.2(a)(1):
                Declared and undeclared plant sites must count, for reporting purposes, all exports from and imports to the entire plant site, not only from or to individual plants on the plant site.

                Note 2 to § 714.2(a)(1):
                The U.S. Government will not submit to the OPCW company-specific information relating to the export or import of Schedule 3 chemicals contained in reports. The U.S. Government will add all export and import information contained in reports to establish the U.S. national aggregate declaration on exports and imports.

              (2) Mixtures containing a Schedule 3 chemical. The quantity of a Schedule 3 chemical contained in a mixture must be counted for reporting an export or import only if the concentration of the Schedule 3 chemical in the mixture is 80% or more by volume or by weight, whichever yields the lesser percent. For reporting purposes, only count the weight of the Schedule 3 chemical in the mixture, not the entire weight of the mixture.

                Note to § 714.2(a)(2):
                The “80% and above” mixtures rule applies only for reporting purposes. This rule does not apply for purposes of determining whether the export of your mixture to a non-State Party requires an End-Use Certificate or for determining whether you need an export license from BIS (see 15 CFR 742.2, 742.18 and 745.2 of the Export Administration Regulations) or from the Department of State (see the International Traffic in Arms Regulations (22 CFR parts 120 through 130)).

              (b) Types of forms to be used—(1) Declared Schedule 3 plant sites. (i) If your plant site is declared for production of a Schedule 3 chemical (and has completed questions 3-3.1 and 3-3.2 on Form 3-3) and you also exported from or imported to your plant site in excess of 30 metric tons of that same Schedule 3 chemical, you must report the export or import by either:
              (A) Completing question 3-3.3 on Form 3-3 on your declaration for that same Schedule 3 chemical; or
              (B) Submitting, separately from your declaration, a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.
              (ii) If your plant site is declared for production of a Schedule 3 chemical and you exported or imported in excess of 30 metric tons of a different Schedule 3 chemical, you must report the export or import by either:
              (A) Submitting, along with your declaration, a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional; or
              (B) Submitting, separately from your declaration, a Certification Form, Form 3-1 and a Form 3.3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.
              (2) If you are an undeclared plant site, a trading company, or any other person subject to the CWCR, you must submit a Certification Form, Form 3-1, and a Form 3-3 for each Schedule 3 chemical to be reported, completing only question 3-3.3. Attach Form A, as appropriate; Form B is optional.
              (c) Quantities to be reported—(1) Calculations. If you exported from or imported to your plant site or trading company more than 30 metric tons of a Schedule 3 chemical in the previous calendar year, you must report all exports and imports of that chemical by country of destination or country of origin, respectively, and indicate the total amount exported to or imported from each country.
              (2) Rounding. For purposes of reporting exports and imports of a Schedule 3 chemical, you must total all exports and imports per calendar year per recipient or source and then round to the nearest 0.1 metric tons.

                Note to § 714.2(c):

                Under the Convention, the United States is obligated to provide the OPCW a national aggregate annual declaration of the quantities of each Schedule 3 chemical exported and imported, with a quantitative breakdown for each country or destination involved. The U.S. Government will not submit your company-specific information relating to the export or import of a Schedule 3 chemical reported under this § 714.2. The U.S. Government will add all export and import information submitted by various facilities under this section to produce a national aggregate annual declaration of destination-by-destination trade for each Schedule 3 chemical.

              § 714.3
              Advance declaration requirements for additionally planned production of Schedule 3 chemicals.
              (a) Declaration requirements. (1) You must declare additionally planned production of Schedule 3 chemicals after the annual declaration on anticipated activities for the next calendar year has been delivered to BIS if:
              (i) You plan that a previously undeclared plant on your plant site under § 714.1(a)(1)(ii) of the CWCR will produce a Schedule 3 chemical above the declaration threshold;
              (ii) You plan to produce at a plant declared under § 714.1(a)(1)(ii) of the CWCR an additional Schedule 3 chemical above the declaration threshold;
              (iii) You plan to increase the production of a Schedule 3 chemical by declared plants on your plant site from the amount exceeding the applicable declaration threshold to an amount exceeding the applicable inspection threshold (see § 716.1(b)(3) of the CWCR); or
              (iv) You plan to increase the aggregate production of a Schedule 3 chemical at a declared plant site to an amount above the upper limit of the range previously declared under § 714.1(a)(1)(ii) of the CWCR.
              (2) If you must submit a declaration on additionally planned activities because you plan to engage in any of the activities listed in paragraphs (a)(1)(i) through (iv) of this section, you also should declare any changes to the anticipated purposes of production or product group codes. You do not have to submit a declaration on additionally planned activities if you are only changing your purposes of production or product group codes.
              (b) Declaration forms to be used. If you are required to declare additionally planned activities pursuant to paragraph (a) of this section, you must complete the Certification Form and Forms 3-1, 3-2, and 3-3 as appropriate. Such forms are due to BIS at least 15 days in advance of the beginning of the additional or new activity.

              § 714.4
              Amended declaration or report.
              In order for BIS to maintain accurate information on previously submitted plant site declarations, including information necessary to facilitate inspection notifications and activities or to communicate declaration or reporting requirements, amended declarations or reports will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities and annual reports on exports and imports submitted for the previous calendar year or annual declarations on anticipated activities covering the current calendar year, unless specified otherwise in a final inspection report.
              (a) Changes to information that directly affects a declared plant site's Annual Declaration of Past Activities (ADPA) or Combined Annual Declaration or Report which was previously submitted to BIS. You must submit an amended declaration or report to BIS within 15 days of determining that there has been a change in any of the following information that you have previously declared or reported:
              (1) Types of Schedule 3 chemicals produced (e.g., production of additional Schedule 3 chemicals);
              (2) Production range (e.g., from 30 to 200 metric tons to above 200 to 1000 metric tons) of Schedule 3 chemicals;
              (3) Purpose of Schedule 3 chemical production (e.g., additional end-uses); or
              (4) Addition of new plant(s) for production of Schedule 3 chemicals.
              (b) Changes to export or import information submitted in Annual Reports on Exports and Imports from undeclared plant sites, trading companies and U.S. persons. You must submit an amended report or amended combined declaration and report to BIS within 15 days of any change in the following export or import information:
              (1) Types of Schedule 3 chemicals exported or imported (additional Schedule 3 chemicals);
              (2) Quantities of Schedule 3 chemicals exported or imported;
              (3) Destination(s) of Schedule 3 chemicals exported; and
              (4) Source(s) of Schedule 3 chemicals imported.
              (c) Changes to company and plant site information submitted in the ADPA, the Annual Declaration of Anticipated Activities, and the Annual Report on Exports and Imports—(1) Internal company changes. You must submit an amended declaration or report to BIS within 30 days of any change in the following information:
              (i) Name of declaration/report point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
              (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, and facsimile number, and e-mail address(es);
              (iii) Company name (see 714.4(c)(2) for other company changes);
              (iv) Company mailing address;
              (v) Plant site name;
              (vi) Plant site owner, including telephone number and facsimile number;
              (vii) Plant site operator, including telephone number and facsimile number;
              (viii) Plant name;
              (xi) Plant owner, including telephone number and facsimile number; and
              (x) Plant operator, including telephone number and facsimile number.
              (2) Change in ownership of company, plant site, or plant. If you sold or purchased a declared company, plant site or plant, you must submit an amended declaration or report to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration or report must include the following information.
              (i) Information that must be submitted to BIS by a company selling a declared plant site:
              (A) Name of seller (i.e., name of the company selling a declared plant site);
              (B) Name of declared plant site and U.S. Code Number for that plant site;
              (C) Name of purchaser (i.e., name of company purchasing a declared plant site) and identity of the new owner and contact person for the purchaser, if known;
              (D) Date of ownership transfer;
              (E) Additional (e.g., unique) details on the sale of the plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and
              (F) Details regarding whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and the new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.
              (1) If the new owner is responsible for submitting the declaration or report for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site or trading company.
              (2) If the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company, and, at the time of transfer of ownership, the previous owner's activities are not above the declaration or reporting thresholds set forth in § 714.1(a)(1) and § 714.2(a)(1) of the CWCR, respectively, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.
              (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in § 714.1(a)(1) of the CWCR, BIS will return the declarations without action as set forth in § 714.5 of the CWCR.
              (4) If part-year reports are not, when combined, above the reporting threshold set forth in § 714.2(a)(1) of the CWCR, BIS will return the reports without action as set forth in § 714.5 of the CWCR.
              (ii) Information that must be submitted to BIS by the company purchasing a declared plant site:
              (A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);
              (B) Mailing address of purchaser;
              (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
              (D) Name(s) of inspection point(s)s of contact (I-POC) for the purchaser, including telephone number, facsimile number, and e-mail address(es);

              (E) Name of the declared plant site and U.S. Code Number for that plant site;

              (F) Location of the declared plant site;
              (G) Operator of the declared plant site, including telephone number, and facsimile number;
              (H) Name of plant where Schedule 3 production exceeds the declaration threshold;
              (I) Owner of plant where Schedule 3 production exceeds the declaration threshold;
              (J) Operator of plant where Schedule 3 production exceeds the declaration threshold; and

              (K) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or reports for the periods of the calendar year during which each owned the plant site or trading company.

                Note 1 to § 714.4(c):
                You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

                Note 2 to § 714.4(c):
                You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration or report, use Form B to address details regarding the sale of the declared plant site or trading company.

                Note 3 to § 714.4(c):
                For ownership changes, the declared plant site or trading company will maintain its original U.S. Code Number, unless the plant site or trading company is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.

              (d) Inspection-related amendments. If, following the completion of an inspection (see parts 716 and 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information to be amended pursuant to §§ 716.10 and 717.5(b) of the CWCR. Amended declarations must be submitted to BIS no later than 45 days following your receipt of BIS's post-inspection letter.
              (e) Non-substantive changes. If, subsequent to the submission of your declaration or report to BIS, you discover one or more non-substantive typographical errors in your declaration or report, you are not required to submit an amended declaration or report to BIS. Instead, you may correct these errors in a subsequent declaration or report.
              (f) Documentation required for amended declarations or reports. If you are required to submit an amended declaration or report to BIS pursuant to paragraph (a), (b), (c), or (d) of this section, you must submit either:
              (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration or report; or
              (2) Both of the following:
              (i) A new Certification Form; and
              (ii) The specific forms required for the declaration or report type being amended (e.g., annual declaration on past activities) containing the corrected information required, in accordance with the requirements of this section, to amend your declaration or report.

              § 714.5
              Declarations and reports returned without action by BIS.
              If you submit a declaration or report and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration or report to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration or report that is returned without action. However, BIS will maintain a copy of the RWA letter.

              § 714.6
              Deadlines for submission of Schedule 3 declarations, reports, and amendments.

              Declarations, reports, and amendments required under this part must be postmarked by the appropriate date identified in supplement no. 2 to this part 714 of the CWCR. Required declarations, reports, and amendments include:
              (a) Annual declaration on past activities (production of Schedule 3 chemicals during the previous calendar year);
              (b) Annual report on exports and imports of Schedule 3 chemicals from plant sites, trading companies, and other persons subject to the CWCR (during the previous calendar year);
              (c) Combined declaration and report (production of Schedule 3 chemicals, as well as exports or imports of the same or different Schedule 3 chemicals, by a declared plant site during the previous calendar year);
              (d) Annual declaration on anticipated activities (anticipated production of Schedule 3 chemicals during the next calendar year);
              (e) Declaration on Additionally Planned Activities (additionally planned production of Schedule 3 chemicals); and
              (f) Amended declaration and report, including combined declaration and report.

              Pt. 714, Supp. No. 1
              Supplement No. 1 to Part 714—Schedule 3 Chemicals

                  (CAS registry number)

                  A. Toxic chemicals:

                  (1) Phosgene: Carbonyl dichloride
                  (75-44-5)

                  (2) Cyanogen chloride
                  (506-77-4)

                  (3) Hydrogen cyanide
                  (74-90-8)

                  (4) Chloropicrin: Trichloronitromethane
                  (76-06-2)

                  B. Precursors:

                  (5) Phosphorus oxychloride
                  (10025-87-3)

                  (6) Phosphorus trichloride
                  (7719-12-2)

                  (7) Phosphorus pentachloride
                  (10026-13-8)

                  (8) Trimethyl phosphite
                  (121-45-9)

                  (9) Triethyl phosphite
                  (122-52-1)

                  (10) Dimethyl phosphite
                  (868-85-9)

                  (11) Diethyl phosphite
                  (762-04-9)

                  (12) Sulfur monochloride
                  (10025-67-9)

                  (13) Sulfur dichloride
                  (10545-99-0)

                  (14) Thionyl chloride
                  (7719-09-7)

                  (15) Ethyldiethanolamine
                  (139-87-7)

                  (16) Methyldiethanolamine
                  (105-59-9)

                  (17) Triethanolamine
                  (102-71-6)

                  Note to Supplement No. 1: Refer to supplement no. 1 to part 774 of the Export Administration Regulations (the Commerce Control List), ECCNs 1C350 and 1C355, for export controls related to Schedule 3 chemicals.

              Pt. 714, Supp. No. 2
              Supplement No. 2 to Part 714—Deadlines for Submission of Schedule 3 Declarations, Reports, and Amendments

                  Declarations
                  Applicable forms
                  Due dates

                  Annual Declaration on Past Activities (previous calendar year)—Declared plant site (production)
                  Certification, 3-1, 3-2, 3-3 (if also exported or imported), A (as appropriate), B (optional)
                  February 28 of the year following any calendar year in which the production of a Schedule 3 chemical exceeded the declaration threshold in § 714.1(a)(1)(i) of the CWCR.

                  Annual Report on Exports and Imports (previous calendar year)—Plant site, trading company, other persons
                  Certification, 3-1, 3-3.3 and 3-3.4, A (as appropriate), B (optional)
                  February 28 of the year following any calendar year in which exports or imports of a Schedule 3 chemical by a plant site, trading company, or other person subject to the CWCR (as described in § 714.2(a) of the CWCR) exceeded the threshold in § 714.2(a) of the CWCR.

                  Combined Declaration & Report
                  Certification, 3-1, 3-2, and 3-3, A (as appropriate), B (optional)
                  February 28 of the year following any calendar year in which the production of a Schedule 3 chemical and the export or import of the same or a different Schedule 3 chemical by a declared plant site exceeded the applicable thresholds in §§ 714.1(a)(1)(i) and 714.2(a), respectively, of the CWCR.

                  Annual Declaration on Anticipated Activities (Production) (next calendar year)
                  Certification, 3-1, 3-2, 3-3.2, A (as appropriate), B (optional)
                  September 3 of the year prior to any calendar year in which Schedule 3 production is anticipated to occur.

                  Declaration on Additionally Planned Activities
                  Certification, 3-1, 3-3.1 and 3-3.2, A (as appropriate), B (optional)
                  15 calendar days before the additionally planned activity begins.

                  Amended Declaration
                  Certification, 3-1, 3-2, 3-3

                  —Declaration information

                  —15 calendar days after change in information.

                  —Company information

                  —30 calendar days after change in information.

                  —Post-inspection letter

                  —45 calendar days after receipt of letter.

                  Amended Report
                  Certification, 3-1, 3-2, 3-3, A (as appropriate), B (optional)
                  —15 calendar days after change in information.

                  Amended Combined Declaration & Report
                  Certification, 3-1, 3-2, 3-3, A (as appropriate), B (optional)
                  —15 calendar days after change in information.

            Pt. 715
            PART 715—ACTIVITIES INVOLVING UNSCHEDULED DISCRETE ORGANIC CHEMICALS (UDOCs)

              Sec.
              715.1
              Annual declaration requirements for production by synthesis of unscheduled discrete organic chemicals (UDOCs).
              715.2
              Amended declaration.
              715.3
              Declarations returned without action by BIS.
              715.4
              Deadlines for submitting UDOC declarations, No Changes Authorization Forms, Change in Inspection Status Forms, and amendments.
              Supplement No. 1 to Part 715—Definition of an Unscheduled Discrete Organic Chemical
              Supplement No. 2 to Part 715—Examples of Unscheduled Discrete Organic Chemicals (UDOCS) and UDOC Production
              Supplement No. 3 to Part 715—Deadlines for Submission of Declarations, No Changes Authorization Forms, Amendments for Unscheduled Discrete Organic Chemical (UDOC) Facilities, and Change in Inspection Status Forms

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 715.1
              Annual declaration requirements for production by synthesis of unscheduled discrete organic chemicals (UDOCs).
              (a) Declaration of production by synthesis of UDOCs for purposes not prohibited by the CWC—(1) Production quantities that trigger the declaration requirement. See § 711.6 of the CWCR for information on obtaining the forms you will need to declare production of unscheduled discrete organic chemicals. You must complete the forms specified in paragraph (b) of this section if your plant site produced by synthesis:
              (i) In excess of 200 metric tons aggregate of all UDOCs (including all UDOCs containing the elements phosphorus, sulfur or fluorine, referred to as “PSF chemicals”) during the previous calendar year; or

              (ii) In excess of 30 metric tons of an individual PSF chemical at one or more plants at your plant site during the previous calendar year.

                Note to § 715.1(a)(1)(ii):
                In calculating the aggregate production quantity of each individual PSF chemical produced by a PSF plant, do not include production of a PSF chemical that was produced in quantities less than 30 metric tons. Include only production quantities from those PSF plants that produced more than 30 metric tons of an individual PSF chemical.

              (2) UDOCs subject to declaration requirements under this part. (i) UDOCs subject to declaration requirements under this part are those produced by synthesis that have been isolated for:
              (A) Use; or
              (B) Sale as a specific end product.
              (ii) Exemptions. (A) Polymers and oligomers consisting of two or more repeating units;
              (B) Chemicals and chemical mixtures produced through a biological or biomediated process;
              (C) Products from the refining of crude oil, including sulfur-containing crude oil;
              (D) Metal carbides (i.e., chemicals consisting only of metal and carbon); and

              (E) UDOCs produced by synthesis that are ingredients or by-products in foods designed for consumption by humans and/or animals.

                Note to § 715.1(a)(2):
                See supplement no. 2 to this part 715 for examples of UDOCs subject to the declaration requirements of this part, and for examples of activities that are not considered production by synthesis.

              (3) Exemptions for UDOC plant sites. UDOC plant sites that exclusively produced hydrocarbons or explosives are exempt from UDOC declaration requirements. For the purposes of this part, the following definitions apply for hydrocarbons and explosives:
              (i) Hydrocarbon means any organic compound that contains only carbon and hydrogen; and
              (ii) Explosive means a chemical (or a mixture of chemicals) that is included in Class 1 of the United Nations Organization hazard classification system.
              (b) Types of declaration forms to be used—(1) Annual declaration on past activities. You must complete the Certification Form and Form UDOC (consisting of two pages), unless there are no changes from the previous year's declaration and you submit a No Changes Authorization Form pursuant to paragraph (b)(2) of this section. Attach Form A as appropriate; Form B is optional.

                Note to § 715.1(b)(1):

                If there is a change in the inspection status of your plant site, as described in paragraph (d)(2) of this section, you may submit an Annual Declaration on Past Activities, in lieu of a Change in Inspection Status Form, under the circumstances described in Note 3 to paragraph (d)(2). In this case, the due date for submitting the Annual Declaration on Past Activities to BIS, covering UDOC production at your plant site during the current calendar year, would be December 15th of the current calendar year, instead of February 28th of the next calendar year (also see supplement no. 3 to this part). If you choose to submit your Annual Declaration on Past Activities to BIS by December 15th and, subsequently, you determine that the production by synthesis of UDOCs at your plant site actually exceeded the UDOC inspection threshold level specified in paragraph (d)(1) of this section, you must submit an amendment to your Annual Declaration on Past Activities (see § 715.2 of the CWCR) and indicate, on Form B, the reason your plant site exceeded the UDOC inspection threshold.

              (2) No Changes Authorization Form. You may complete the No Changes Authorization Form if there are no updates or changes to any information (except the certifying official and dates signed and submitted) in your plant site's previously submitted annual declaration on past activities. Your plant site's activities will be declared to the OPCW and subject to inspection, if applicable, based upon the data reported in the most recent UDOC Declaration that you submitted to BIS.

                Note to § 715.1(b)(2):
                If, after submitting the No Changes Authorization Form, you have changes to information, you must submit a complete amendment to the annual declaration on past activities. See § 715.2 of the CWCR.

              (c) “Declared” UDOC plant site. A plant site that submitted a declaration pursuant to paragraph (a)(1) of this section is a “declared” UDOC plant site.
              (d) Routine inspections of declared UDOC plant sites—(1) Inspection requirement. A “declared” UDOC plant site is subject to routine inspection by the Organization for the Prohibition of Chemical Weapons (OPCW) (see part 716 of the CWCR) if it produced by synthesis more than 200 metric tons aggregate of UDOCs during the previous calendar year.
              (2) Change in inspection status. You may complete the Change in Inspection Status Form, to ensure that your facility does not remain subject to inspection during the first 90 days of the next calendar year (i.e., prior to the submission of the U.S. declaration to the OPCW), if:

              (i) Your plant site is currently subject to inspection, pursuant to paragraph (d)(1) of this section, based on your plant site's production by synthesis of UDOCs during the previous calendar year; and

              (ii) Your plant site's production by synthesis of UDOCs in the current calendar year will be below the inspection threshold level specified in paragraph (d)(1) of this section by the deadline indicated in supplement no. 3 to this part, and is anticipated to remain below that threshold level through the remainder of the current calendar year.

                Note 1 to § 715.1(d)(2):

                Upon receipt of the Change in Inspection Status Form, BIS will inform the Organization for the Prohibition of Chemical Weapons (OPCW) that your plant site is not subject to inspection during the next calendar year.

                Note 2 to § 715.1(d)(2):
                If, after submitting your Change in Inspection Status Form to BIS, you determine that the production by synthesis of UDOCs at your plant site actually exceeded the UDOC inspection threshold level specified in paragraph (d)(1) of this section, you must indicate this fact when you submit your Annual Declaration on Past Activities to BIS and indicate, on Form B, the reason your plant site exceeded the UDOC inspection threshold.

                Note 3 to § 715.1(d)(2):

                You may submit the Annual Declaration on Past Activities described in paragraph (b)(1) of this section, instead of the Change in Inspection Status Form, if you anticipate that UDOC production at your plant site during the current calendar year will be below the inspection threshold level specified in paragraph (d)(1) of this section, but you expect your plant site to remain subject to the UDOC declaration requirements in paragraph (a)(1) of this section. In this case, the due date for the Annual Declaration on Past Activities will be December 15th of the current calendar year, instead of February 28th of the next calendar year. Note that any changes to information contained in the Annual Declaration on Past Activities must be addressed in accordance with the amendment requirements in § 715.2 of the CWCR. For example, if subsequent to the submission of your Annual Declaration on Past Activities to BIS on December 15th, you determine that the production by synthesis of UDOCs at your plant site actually exceeded the UDOC inspection threshold level specified in paragraph (d)(1) of this section, you must submit an amendment to your Annual Declaration on Past Activities (see § 715.2 of the CWCR) and indicate, on Form B, the reason your plant site exceeded the UDOC inspection threshold.

                Note 4 to § 715.1(d)(2):
                Currently inspectable UDOC plant sites that do not submit either a Change in Inspection Status Form or Annual Declaration of Past Activities by December 15th of the current calendar year, in accordance with paragraph (d)(2) of this section, will remain subject to inspection through at least the 90-day period at the beginning of the next calendar year.

              [71 FR 24929, Apr. 27, 2006, as amended at 72 FR 14408, Mar. 28, 2007]

              § 715.2
              Amended declaration.
              In order for BIS to maintain accurate information on previously submitted plant site declarations, including current information necessary to facilitate inspection notifications and activities or to communicate declaration requirements, amended declarations will be required under the following circumstances described in this section. This section applies only to annual declarations on past activities submitted for the previous calendar year, unless specified otherwise in a final inspection report.
              (a) Changes to information that directly affects a declared plant site's Annual Declaration of Past Activities (ADPA) which was previously submitted to BIS. You must submit an amended declaration to BIS within 15 days of any change in the following information:
              (1) Product group codes for UDOCs produced in quantities exceeding the applicable declaration threshold specified in § 715.1(a)(1) of the CWCR;
              (2) Approximate number of plants at the declared plant site that produced any amount of UDOCs (including all PSF chemicals);
              (3) Aggregate amount of production (by production range) of UDOCs produced by all plants at the declared plant site;
              (4) Exact number of plants at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical; and
              (5) Production range of each plant at the declared plant site that individually produced more than 30 metric tons of a single PSF chemical.
              (b) Changes to company and plant site information submitted in the ADPA that must be maintained by BIS—(1) Internal company changes. You must submit an amended declaration to BIS within 30 days of any change in the following information:
              (i) Name of declaration point of contact (D-POC), including telephone number, facsimile number, and e-mail address;
              (ii) Name(s) of inspection point(s) of contact (I-POC), including telephone number, facsimile number(s) and e-mail address(es);
              (iii) Company name (see 715.2(b)(2) for other company changes);
              (iv) Company mailing address;
              (v) Plant site name;
              (vi) Plant site owner, including telephone number and facsimile number; and
              (vii) Plant site operator, including telephone number and facsimile number.
              (2) Change in ownership of company or plant site. If you sold or purchased a declared plant site, you must submit an amended declaration to BIS, either before the effective date of the change or within 30 days after the effective date of the change. The amended declaration must include the following information.
              (i) Information that must be submitted to BIS by the company selling a declared plant site:
              (A) Name of seller (i.e., name of company selling a declared plant site);
              (B) Name of declared plant site name and U.S. Code Number for that plant site;
              (C) Name of purchaser (i.e., name of new company purchasing a declared plant site) and identity of contact person for the purchaser, if known;
              (D) Date of ownership transfer or change;
              (E) Additional details on the sale of the declared plant site relevant to ownership or operational control over any portion of the declared plant site (e.g., whether the entire plant site or only a portion of the declared plant site has been sold to a new owner); and
              (F) Details regarding whether the new owner will submit the declaration for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the plant site.
              (1) If the new owner is responsible for submitting the declaration for the entire current year, it must have in its possession the records for the period of the year during which the previous owner owned the plant site.
              (2) If the previous owner and new owner will submit separate declarations for the periods of the calendar year during which each owned the plant site, and, if at the time of transfer of ownership, the previous owner's activities are not above the declaration thresholds set forth in § 715.1(a)(1) of the CWCR, the previous owner and the new owner must still submit declarations to BIS with the below threshold quantities indicated.
              (3) If the part-year declarations submitted by the previous owner and the new owner are not, when combined, above the declaration threshold set forth in § 715.1(a)(1) of the CWCR, BIS will return the declarations without action as set forth in § 715.3 of the CWCR.
              (ii) Information that must be submitted to BIS by the company purchasing a declared plant site:
              (A) Name of purchaser (i.e., name of individual or company purchasing a declared plant site);
              (B) Mailing address of purchaser;
              (C) Name of declaration point of contact (D-POC) for the purchaser, including telephone number, facsimile number, and e-mail address;
              (D) Name(s) of inspection point(s) of contact (I-POC) for the purchaser, including telephone number(s), facsimile number(s), and e-mail address(es);
              (E) Name of the declared plant site and U.S. Code Number for that plant site;
              (F) Location of the declared plant site;
              (G) Name of plant site where the production of UDOCs exceeds the applicable declaration threshold;
              (H) Owner of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number;
              (I) Operator of plant site where the production of UDOCs exceeds the applicable declaration threshold, including telephone number and facsimile number; and

              (J) Details on the next declaration or report submission on whether the new owner will submit the declaration or report for the entire calendar year during which the ownership change occurred, or whether the previous owner and new owner will submit separate declarations or report for the periods of the calendar year during which each owned the plant site.

                Note 1 to § 715.2(b):

                You must submit an amendment to your most recently submitted declaration or report for declaring changes to internal company information (e.g., company name change) or changes in ownership of a facility or trading company that have occurred since the submission of this declaration or report. BIS will process the amendment to ensure current information is on file regarding the facility or trading company (e.g., for inspection notifications and correspondence) and will also forward the amended declaration to the OPCW to ensure that they also have current information on file regarding your facility or trading company.

                Note 2 to § 715.2(b):
                You may notify BIS of change in ownership via a letter to the address given in § 711.6 of the CWCR. If you are submitting an amended declaration, use Form B to address details regarding the sale of the declared plant site.

                Note 3 to § 715.2(b):
                For ownership changes, the declared plant site will maintain its original U.S. Code Number, unless the plant site is sold to multiple owners, at which time BIS will assign new U.S. Code Numbers.

              (c) Inspection-related amendments. If, following completion of an inspection (see part 716 or 717 of the CWCR), you are required to submit an amended declaration based on the final inspection report, BIS will notify you in writing of the information that will be required pursuant to §§ 716.10 and 717.5 of the CWCR. You must submit an amended declaration to BIS no later than 45 days following your receipt of BIS's post-inspection letter.
              (d) Non-substantive changes. If, subsequent to the submission of your declaration to BIS, you discover one or more non-substantive typographical errors in your declaration, you are not required to submit an amended declaration to BIS. Instead, you may correct these errors in a subsequent declaration.
              (e) Documentation required for amended declarations. If you are required to submit an amended declaration to BIS pursuant to paragraph (a), (b), or (c) of this section, you must submit either:
              (1) A letter containing all of the corrected information required, in accordance with the provisions of this section, to amend your declaration; or
              (2) Both of the following:
              (i) A new Certification Form; and
              (ii) The specific form required for the declaration containing the corrected information required, in accordance with the requirements of this section, to amend your declaration.

              § 715.3
              Declarations returned without action by BIS.
              If you submit a declaration and BIS determines that the information contained therein is not required by the CWCR, BIS will return the original declaration to you, without action, accompanied by a letter explaining BIS's decision. In order to protect your confidential business information, BIS will not maintain a copy of any declaration that is returned without action. However, BIS will maintain a copy of the RWA letter.

              § 715.4
              Deadlines for submitting UDOC declarations, No Changes Authorization Forms, Change in Inspection Status Forms, and amendments.
              Declarations, No Changes Authorization Forms, Change in Inspection Status Forms, and amendments required under this part must be postmarked by the appropriate dates identified in supplement no. 3 to this part 715 of the CWCR. Required documents under this part include:
              (a) Annual Declaration on Past Activities (UDOC production during the previous calendar year);
              (b) No Changes Authorization Form (may be completed and submitted to BIS when there are no changes to any information in your plant site's previously submitted annual declaration on past activities, except the certifying official and the dates signed and submitted); and
              (c) Change in Inspection Status Form—May be completed and submitted to BIS if your plant site is currently subject to inspection, pursuant to § 715.1(d)(1) of the CWCR, and you anticipate that the production of UDOCs at your plant site during the current calendar year will remain below the inspection threshold level indicated therein (i.e., 200 metric tons aggregate); and
              (d) Amended declaration.
              [71 FR 24929, Apr. 27, 2006, as amended at 72 FR 14408, Mar. 28, 2007]

              Pt. 715, Supp. No. 1
              Supplement No. 1 to Part 715—Definition of an Unscheduled Discrete Organic Chemical

              Unscheduled discrete organic chemical means any chemical: (1) Belonging to the class of chemical compounds consisting of all compounds of carbon except for its oxides, sulfides and metal carbonates identifiable by chemical name, by structural formula, if known, and by Chemical Abstract Service registry number, if assigned; and (2) that is not contained in the Schedules of Chemicals (see Supplements No. 1 to parts 712 through 714 of the CWCR). Unscheduled discrete organic chemicals subject to declaration under this part are those produced by synthesis that are isolated for use or sale as a specific end-product.

                Note:

                Carbon oxides consist of chemical compounds that contain only the elements carbon and oxygen and have the chemical formula CXOy, where x and y denote integers. The two most common carbon oxides are carbon monoxide (CO) and carbon dioxide (CO2). Carbon sulfides consist of chemical compounds that contain only the elements carbon and sulfur, and have the chemical formula CaSb, where a and b denote integers. The most common carbon sulfide is carbon disulfide (CS2). Metal carbonates consist of chemical compounds that contain a metal (i.e., the Group I Alkalis, Groups II Alkaline Earths, the Transition Metals, or the elements aluminum, gallium, indium, thallium, tin, lead, bismuth or polonium), and the elements carbon and oxygen. Metal carbonates have the chemical formula Md(CO3)e, where d and e denote integers and M represents a metal. Common metal carbonates are sodium carbonate (Na2CO3) and calcium carbonate (CaCO3). In addition, metal carbides or other compounds consisting of only a metal, as described in this Note, and carbon (e.g., calcium carbide (CaC2)), are exempt from declaration requirements (see § 715.1(a)(2)(ii)(D) of the CWCR).

              Pt. 715, Supp. No. 2
              Supplement No. 2 to Part 715—Examples of Unscheduled Discrete Organic Chemicals (UDOCs) and UDOC Production
              (1) Examples of UDOCs not subject to declaration include:
              (i) UDOCs produced coincidentally as by-products that are not isolated for use or sale as a specific end product, and are routed to, or escape from, the waste stream of a stack, incinerator, or waste treatment system or any other waste stream;
              (ii) UDOCs, contained in mixtures, which are produced coincidentally and not isolated for use or sale as a specific end-product;
              (iii) UDOCs produced by recycling (i.e., involving one of the processes listed in paragraph (3) of this supplement) of previously declared UDOCs;
              (iv) UDOCs produced by the mixing (i.e., the process of combining or blending into one mass) of previously declared UDOCs; and
              (v) UDOCs that are intermediates and that are used in a single or multi-step process to produce another declared UDOC.
              (2) Examples of UDOCs that you must declare under part 715 of the CWCR include, but are not limited to, the following, unless they are not isolated for use or sale as a specific end product:
              (i) Acetophenone (CAS #98-86-2);
              (ii) 6-Chloro-2-methyl aniline (CAS #87-63-8);
              (iii) 2-Amino-3-hydroxybenzoic acid (CAS #548-93-6); and
              (iv) Acetone (CAS #67-64-1).
              (3) Examples of activities that are not considered “production by synthesis” under part 715 of the CWCR, which means the end products resulting from such activities would not be declared under part 715, are as follows:
              (i) Fermentation;
              (ii) Extraction;
              (iii) Purification;
              (iv) Distillation; and
              (v) Filtration.

              Pt. 715, Supp. No. 3
              Supplement No. 3 to Part 715— Deadlines for Submission of Declarations, No Changes Authorization Forms, Amendments for Unscheduled Discrete Organic Chemical (UDOC) Facilities, and Change in Inspection Status Forms

                  Declarations
                  Applicable forms
                  Due dates

                  Annual Declaration on Past Activities (previous calendar year)Declared plant site.

                  Certification, UDOC, A (as appropriate), B (optional)
                  February 28 of the year following any calendar year in which the production by synthesis of UDOCs exceeded the applicable declaration threshold in § 715.1(a)(1) of the CWCR.*

                  No Changes Authorization Form (declaration required, but no changes to data contained in previously submitted annual declaration on past activities—previous calendar year)Declared plant site

                  No Changes Authorization Form
                  February 28 of the year following any calendar year in which the production by synthesis of UDOCs exceeded the applicable declaration threshold in § 715.1(a)(1) of the CWCR.

                  Amended Declaration:
                  Certification, UDOC, A (as appropriate), B (optional)

                  —Declaration information

                  —15 calendar days after change in information.

                  —Company information

                  —30 calendar days after change in information.

                  —Post-inspection letter

                  —45 calendar days after receipt of letter.

                  Change in Inspection Status Form (applies only if your plant site is currently subject to inspection, pursuant to § 715.1(d)(1) of the CWCR, and you anticipate that the production by synthesis of UDOCs at your plant site during the current calendar year will remain below the inspection threshold level specified therein)
                  Change in Inspection Status Form
                  December 15th of any calendar year in which the production by synthesis of UDOCs is anticipated to be below the inspection threshold level specified in § 715.1(d)(1) of the CWCR.*

                * You may submit the Annual Declaration on Past Activities (ADPA) described in § 715.1(b)(1), instead of the Change in Inspection Status Form, if you anticipate that UDOC production at your plant site during the current calendar year will be below the inspection threshold level specified in § 715.1(d)(1), but you expect your plant site to remain subject to the UDOC declaration requirements in § 715.1(a)(1). In this case, the due date for the Annual Declaration on Past Activities will be December 15th of the current calendar year, instead of February 28th of the next calendar year.

              [72 FR 14408, Mar. 28, 2007]

            Pt. 716
            PART 716—INITIAL AND ROUTINE INSPECTIONS OF DECLARED FACILITIES

              Sec.
              716.1
              General information on the conduct of initial and routine inspections.
              716.2
              Purposes and types of inspections of declared facilities.
              716.3
              Consent to inspections; warrants for inspections.
              716.4
              Scope and conduct of inspections.
              716.5
              Notification, duration and frequency of inspections.
              716.6
              Facility agreements.
              716.7
              Samples.
              716.8
              On-site monitoring of Schedule 1 facilities.
              716.9
              Report of inspection-related costs.
              716.10
              Post-inspection activities.
              Supplement No. 1 to Part 716—Notification, Duration, and Frequency of Inspections
              Supplement Nos. 2-3 to Part 716 [Reserved]

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 716.1
              General information on the conduct of initial and routine inspections.
              This part provides general information about the conduct of initial and routine inspections of declared facilities subject to inspection under CWC Verification Annex Part VI(E), Part VII(B), Part VIII(B) and Part IX(B). See part 717 of the CWCR for provisions concerning challenge inspections.
              (a) Overview. Each State Party to the CWC, including the United States, has agreed to allow certain inspections of declared facilities by inspection teams employed by the Organization for the Prohibition of Chemical Weapons (OPCW) to ensure that activities are consistent with obligations under the Convention. BIS is responsible for leading, hosting and escorting inspections of all facilities subject to the provisions of the CWCR (see § 710.2 of the CWCR).
              (b) Declared facilities subject to initial and routine inspections—(1) Schedule 1 facilities. (i) Your declared facility is subject to inspection if it produced in excess of 100 grams aggregate of Schedule 1 chemicals in the previous calendar year or anticipates producing in excess of 100 grams aggregate of Schedule 1 chemicals during the next calendar year.

              (ii) If you are a new Schedule 1 production facility pursuant to § 712.4 of the CWCR, your facility is subject to an initial inspection within 200 days of submitting an initial declaration.

                Note to § 716.1(b)(1):
                All Schedule 1 facilities submitting a declaration are subject to inspection.

              (2) Schedule 2 plant sites—(i) Inspection thresholds for Schedule 2 plant sites. Your declared plant site is subject to inspection if at least one plant on your plant site produced, processed or consumed, in any of the three previous calendar years, or you anticipate that at least one plant on your plant site will produce, process or consume in the next calendar year, any Schedule 2 chemical in excess of the following:

              (A) 10 kg of chemical BZ: 3-Quinuclidinyl benzilate (see Schedule 2, Part A, paragraph 3 in supplement no. 1 to part 713 of the CWCR);
              (B) 1 metric ton of chemical PFIB: 1,1,3,3,3-Pentafluoro-2(trifluoromethyl)-1-propene or any chemical belonging to the Amiton family (see Schedule 2, Part A, paragraphs 1 and 2 in supplement no. 1 to part 713 of the CWCR); or
              (C) 10 metric tons of any chemical listed in Schedule 2, Part B (see supplement no. 1 to part 713 of the CWCR).
              (ii) Initial inspection for new Schedule 2 plant sites. Your declared plant site is subject to an initial inspection within the first year after submitting a declaration, if at least one plant on your plant site produced, processed or consumed in any of the three previous years, or you anticipate that at least one plant on your plant site will produce, process or consume in the next calendar year, any Schedule 2 chemical in excess of the threshold quantities set forth in paragraphs (b)(2)(i)(A) through (C) of this section.

                Note to § 716.1(b)(2):
                The applicable inspection threshold for Schedule 2 plant sites is ten times higher than the applicable declaration threshold. Only declared plant sites, comprising at least one declared plant that exceeds the applicable inspection threshold, are subject to inspection.

              (3) Schedule 3 plant sites. Your declared plant site is subject to inspection if the declared plants on your plant site produced during the previous calendar year, or you anticipate they will produce in the next calendar year, in excess of 200 metric tons aggregate of any Schedule 3 chemical.

                Note to § 716.1(b)(3):
                The methodology for determining a declarable and inspectable plant site is different. A Schedule 3 plant site that submits a declaration is subject to inspection only if the aggregate production of a Schedule 3 chemical at all declared plants on the plant site exceeds 200 metric tons.

              (4) Unscheduled discrete organic chemical plant sites. Your declared plant site is subject to inspection if it produced by synthesis more than 200 metric tons aggregate of unscheduled discrete organic chemicals (UDOC) during the previous calendar year.

                Note 1 to § 716.1(b)(4):
                You must include amounts of unscheduled discrete organic chemicals containing phosphorus, sulfur or fluorine in the calculation of your plant site's aggregate production of unscheduled discrete organic chemicals.

                Note 2 to § 716.1(b)(4):
                All UDOC plant sites that submit a declaration based on § 715.1(a)(1)(i) of the CWCR are subject to a routine inspection.

                Note 3 to paragraph (b)(4):

                Any UDOC plant site that is eligible, in accordance with § 715.1(d)(2) of the CWCR, to submit a Change in Inspection Status Form or an Annual Declaration on Past Activities by December 15th of the current calendar year (i.e., a plant site that will be below the inspection threshold level indicated in paragraph (b)(4) of this section during the current calendar year), but that fails to do so, will remain subject to inspection through at least the 90-day period at the beginning of the next calendar year.

              (c) Responsibilities of the Department of Commerce. As the host and escort for the international Inspection Team for all inspections of facilities subject to the provisions of the CWCR under this part, BIS will:
              (1) Lead on-site inspections;
              (2) Provide Host Team notification to the facility of an impending inspection;
              (3) Take appropriate action to obtain an administrative warrant in the event the facility does not consent to the inspection;
              (4) Dispatch an advance team to the vicinity of the site to provide administrative and logistical support for the impending inspection and, upon request, to assist the facility with inspection preparation;
              (5) Escort the Inspection Team on-site throughout the inspection process;
              (6) Assist the Inspection Team with verification activities;
              (7) Negotiate the development of a site-specific facility agreement, if appropriate (see § 716.6); and
              (8) Ensure that an inspection adheres to the Convention, the Act and any warrant issued thereunder, and a site-specific facility agreement, if concluded.
              [71 FR 24929, Apr. 27, 2006, as amended at 72 FR 14409, Mar. 28, 2007]

              § 716.2
              Purposes and types of inspections of declared facilities.
              (a) Schedule 1 facilities—(1) Purposes of inspections. The aim of inspections of Schedule 1 facilities is to verify that:

              (i) The facility is not used to produce any Schedule 1 chemical, except for the declared Schedule 1 chemicals;
              (ii) The quantities of Schedule 1 chemicals produced, processed or consumed are correctly declared and consistent with needs for the declared purpose; and
              (iii) The Schedule 1 chemical is not diverted or used for purposes other than those declared.
              (2) Types of inspections—(i) Initial inspections. (A) During initial inspections of declared Schedule 1 facilities, in addition to the verification activities listed in paragraph (a)(1) of this section, the Host Team and the Inspection Team will draft site-specific facility agreements (see § 716.6 of the CWCR) for the conduct of routine inspections.
              (B) For new Schedule 1 production facilities declared pursuant to § 712.4 of the CWCR, the U.S. National Authority, in coordination with BIS, will conclude a facility agreement with the OPCW before the facility begins producing above 100 grams aggregate of Schedule 1 chemicals.
              (ii) Routine inspections. During routine inspections of declared Schedule 1 facilities, the verification activities listed in paragraph (a)(1) of this section will be carried out pursuant to site-specific facility agreements (see § 716.6 of the CWCR) developed during the initial inspections and concluded between the U.S. Government and the OPCW pursuant to the Convention.
              (b) Schedule 2 plant sites—(1) Purposes of inspections. (i) The general aim of inspections of declared Schedule 2 plant sites is to verify that activities are in accordance with obligations under the Convention and consistent with the information provided in declarations. Particular aims of inspections of declared Schedule 2 plant sites are to verify:
              (A) The absence of any Schedule 1 chemical, especially its production, except in accordance with the provisions of the Convention;
              (B) Consistency with declarations of production, processing or consumption of Schedule 2 chemicals; and
              (C) Non-diversion of Schedule 2 chemicals for activities prohibited under the Convention.
              (ii) During initial inspections, Inspection Teams shall collect information to determine the frequency and intensity of subsequent inspections by assessing the risk to the object and purpose of the Convention posed by the relevant chemicals, the characteristics of the plant site and the nature of the activities carried out there. The Inspection Team will take the following criteria into account, inter alia:
              (A) The toxicity of the scheduled chemicals and of the end-products produced with them, if any;
              (B) The quantity of the scheduled chemicals typically stored at the inspected site;
              (C) The quantity of feedstock chemicals for the scheduled chemicals typically stored at the inspected site;
              (D) The production capacity of the Schedule 2 plants; and
              (E) The capability and convertibility for initiating production, storage and filling of toxic chemicals at the inspected site.
              (2) Types of inspections—(i) Initial inspections. During initial inspections of declared Schedule 2 plant sites, in addition to the verification activities listed in paragraph (b)(1) of this section, the Host Team and the Inspection Team will generally draft site-specific facility agreements for the conduct of routine inspections (see § 716.6 of the CWCR).
              (ii) Routine inspections. During routine inspections of declared Schedule 2 plant sites, the verification activities listed in paragraph (b)(1) of this section will be carried out pursuant to any appropriate site-specific facility agreements developed during the initial inspections (see § 716.6 of the CWCR), and concluded between the U.S. Government and the OPCW pursuant to the Convention and the Act.
              (c) Schedule 3 plant sites—(1) Purposes of inspections. The general aim of inspections of declared Schedule 3 plant sites is to verify that activities are consistent with the information provided in declarations. The particular aim of inspections is to verify the absence of any Schedule 1 chemical, especially its production, except in accordance with the Convention.
              (2) Routine inspections. During routine inspections of declared Schedule 3 plant sites, in addition to the verification activities listed in paragraph (c)(1) of this section, the Host Team and the Inspection Team may draft site-specific facility agreements for the conduct of subsequent routine inspections (see § 716.6 of the CWCR). Although the Convention does not require facility agreements for declared Schedule 3 plant sites, the owner, operator, occupant or agent in charge of a plant site may request one. The Host Team will not seek a facility agreement if the owner, operator, occupant or agent in charge of the plant site does not request one. Subsequent routine inspections will be carried out pursuant to site-specific facility agreements, if applicable.
              (d) Unscheduled discrete organic chemical plant sites—(1) Purposes of inspections. The general aim of inspections of declared UDOC plant sites is to verify that activities are consistent with the information provided in declarations. The particular aim of inspections is to verify the absence of any Schedule 1 chemical, especially its production, except in accordance with the Convention.
              (2) Routine inspections. During routine inspections of declared UDOC plant sites, in addition to the verification activities listed in paragraph (d)(1) of this section, the Host Team and the Inspection Team may develop draft site-specific facility agreements for the conduct of subsequent routine inspections (see § 716.6 of the CWCR). Although the Convention does not require facility agreements for declared UDOC plant sites, the owner, operator, occupant or agent in charge of a plant site may request one. The Host Team will not seek a facility agreement if the owner, operator, occupant or agent in charge of the plant site does not request one. Subsequent routine inspections will be carried out pursuant to site-specific facility agreements, if applicable.

              § 716.3
              Consent to inspections; warrants for inspections.
              (a) The owner, operator, occupant or agent in charge of a facility may consent to an initial or routine inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility.
              (b) In instances where consent is not provided by the owner, operator, occupant or agent in charge for an initial or routine inspection, BIS will seek administrative warrants as provided by the Act.

              § 716.4
              Scope and conduct of inspections.
              (a) General. Each inspection shall be limited to the purposes described in § 716.2 of the CWCR and shall be conducted in the least intrusive manner, consistent with the effective and timely accomplishment of its purpose as provided in the Convention.
              (b) Scope—(1) Description of inspections. During inspections, the Inspection Team:
              (i) Will receive a pre-inspection briefing from facility representatives;
              (ii) Will visually inspect the facilities or plants producing scheduled chemicals or UDOCs, which may include storage areas, feed lines, reaction vessels and ancillary equipment, control equipment, associated laboratories, first aid or medical sections, and waste and effluent handling areas, as necessary to accomplish their inspection;
              (iii) May visually inspect other parts or areas of the plant site to clarify an ambiguity that has arisen during the inspection;
              (iv) May take photographs or conduct formal interviews of facility personnel;
              (v) May examine relevant records; and
              (vi) May take samples as provided by the Convention, the Act and consistent with the requirements set forth by the Director of the United States National Authority, at 22 CFR part 103, and the facility agreement, if applicable.
              (2) Scope of consent. When an owner, operator, occupant, or agent in charge of a facility consents to an initial or routine inspection, he or she is consenting to provide access to the Inspection Team and Host Team to any area of the facility, any item located on the facility, interviews with facility personnel, and any records necessary for the Inspection Team to complete its mission pursuant to paragraph (a) of this section, except for information subject to export control under ITAR (22 CFR parts 120 through 130) (see paragraph (b)(3) of this section). When consent is granted for an inspection, the owner, operator, occupant, or agent in charge agrees to provide the same degree of access provided for under section 305 of the Act. The determination of whether the Inspection Team's request to inspect any area, building, item or record is reasonable is the responsibility of the Host Team Leader.
              (3) ITAR-controlled technology. ITAR-controlled technology shall not be divulged to the Inspection Team without U.S. Government authorization (such technology includes, but is not limited to technical data related to Schedule 1 chemicals or Schedule 2 chemicals identified in Note 2 to Supplement No. 1 to Part 712 or Note 1 to Supplement No. 1 to Part 713, respectively, of the CWCR; also see 22 CFR Section 121.1, i.e., the United States Munitions List). Facilities being inspected are responsible for the identification of ITAR-controlled technology to the BIS Host Team, if known.
              (c) Pre-inspection briefing. Upon arrival of the Inspection Team and Host Team at the inspection site and before commencement of the inspection, facility representatives will provide the Inspection Team and Host Team with a pre-inspection briefing on the facility, the activities carried out there, safety measures, and administrative and logistical arrangements necessary for the inspection, which may be aided with the use of maps and other documentation as deemed appropriate by the facility. The time spent for the briefing will be limited to the minimum necessary and may not exceed three hours.
              (1) The pre-inspection briefing will address:
              (i) Facility health and safety issues and requirements, and associated alarm systems;
              (ii) Declared facility activities, business and manufacturing operations;
              (iii) Physical layout;
              (iv) Delimitation of declared facility;
              (v) Scheduled chemicals on the facility (declared and undeclared);
              (vi) Block flow diagram or simplified process flow diagram;
              (vii) Plants and units specific to declared operations;
              (viii) Administrative and logistic information; and
              (ix) Data declaration updates/revisions.
              (2) The pre-inspection briefing may also address, inter alia:
              (i) Introduction of key facility personnel;
              (ii) Management, organization and history;
              (iii) Confidential business information concerns;
              (iv) Types and location of records/documents;
              (v) Draft facility agreement, if applicable; and
              (vi) Proposed inspection plan.
              (d) Visual plant inspection. The Inspection Team may visually inspect the declared plant or facility and other areas or parts of the plant site as agreed by the Host Team Leader after consulting with the facility representative.
              (e) Records review. (1) The facility must provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the requirements of the CWCR. These supporting materials and documentation shall include records related to activities that have taken place at the facility since the beginning of the previous calendar year, regardless of whether or not the facility has submitted its current year Annual Declaration on Past Activities to BIS at the time of the inspection. The facility shall also make available for inspection all records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock. All supporting materials and documentation subject to the requirements of this paragraph (e) must be retained by the facility in accordance with the requirements of § 721.2 of the CWCR. The facility also must permit access to and copying of these records, upon request by BIS or any other agency of competent jurisdiction, in accordance with the requirements of § 721.1 of the CWCR.

              (2) The facility must provide access to these supporting materials and documentation in appropriate formats (e.g., paper copies, electronic remote access by computer, microfilm, or microfiche), through the U.S. Government Host Team to Inspection Teams, during the inspection period or as otherwise agreed upon by the Inspection Team and Host Team Leader.
              (3) The facility must provide the Inspection Team with appropriate accommodations in which to review these supporting materials and documentation.
              (4) If a facility does not have access to supporting materials and documentation for activities that took place under previous ownership, because such records were not transferred to the current owner of the facility by the previous owner (e.g., as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team for provision to the Inspection Team in accordance with section 305 of the Act. However, the current owner of a facility, upon receiving notification of an inspection (see § 716.5 of the CWCR), is responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership—this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities.
              (f) Effect of facility agreements. Routine inspections at facilities for which the United States has concluded a facility agreement with the OPCW will be conducted in accordance with the facility agreement. The existence of a facility agreement does not in any way limit the right of the owner, operator, occupant, or agent in charge of the facility to withhold consent to an inspection request.
              (g) Hours of inspections. Consistent with the provisions of the Convention, the Host Team will ensure, to the extent possible, that each inspection is commenced, conducted, and concluded during ordinary working hours, but no inspection shall be prohibited or otherwise disrupted from commencing, continuing or concluding during other hours.
              (h) Health and safety regulations and requirements. In carrying out their activities, the Inspection Team and Host Team shall observe federal, state, and local health and safety regulations and health and safety requirements established at the inspection site, including those for the protection of controlled environments within a facility and for personal safety. Such health and safety regulations and requirements will be set forth in, but will not necessarily be limited to, the facility agreement, if applicable.
              (i) Preliminary findings. Upon completion of an inspection, the Inspection Team will meet with the Host Team and facility personnel to review the written preliminary findings of the Inspection Team and to clarify ambiguities. The Host Team will discuss the preliminary findings with the facility, and the Host Team Leader will take into consideration the facility's input when providing official comments on the preliminary findings to the Inspection Team. This meeting will be completed not later than 24 hours after the completion of the inspection.
              [71 FR 24929, Apr. 27, 2006, as amended at 72 FR 14409, Mar. 28, 2007]

              § 716.5
              Notification, duration and frequency of inspections.
              (a) Inspection notification—(1)(i) Content of notice. Inspections of facilities may be made only upon issuance of written notice by the United States National Authority (USNA) to the owner and to the operator, occupant or agent in charge of the premises to be inspected. BIS will also provide a separate inspection notification to the inspection point of contact identified in declarations submitted by the facility. If the United States is unable to provide actual written notice to the owner and to the operator, occupant or agent in charge, BIS (or the Federal Bureau of Investigation, if BIS is unable) may post notice prominently at the facility to be inspected. The notice shall include all appropriate information provided by the OPCW to the USNA concerning:
              (A) The type of inspection;
              (B) The basis for the selection of the facility or location for the type of inspection sought;

              (C) The time and date that the inspection will begin and the period covered by the inspection; and

              (D) The names and titles of the Inspection Team members.
              (ii) Consent to inspection. In addition to appropriate information provided by the OPCW in its notification to the USNA, BIS's inspection notification will request that the facility indicate whether it will consent to an inspection, and will state whether an advance team is available to assist the site in preparation for the inspection. If an advance team is available, facilities that request advance team assistance are not required to reimburse the U.S. Government for costs associated with these activities. If a facility does not agree to provide consent to an inspection within four hours of receipt of the inspection notification, BIS will seek an administrative warrant. The current owner of a facility, upon receiving notification of an inspection, is also responsible for informing BIS if the previous owner did not transfer (to the current owner) records for activities that took place under the previous ownership (see § 716.4(e) of the CWCR)—this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities.
              (iii) The following table sets forth the notification procedures for inspection:

                Table to § 716.5(a)(1)

                  Activity
                  Agency action
                  Facility action

                  (A) OPCW notification inspection
                  (1) U.S. National Authority transmits actual written notice and inspection authorization to the owner and operator, occupant, or agent in charge via facsimile within 6 hours
                  Acknowledges receipt of facsimile.

                  (2) Upon notification from the U.S. National Authority, BIS immediately transmits inspection notification via facsimile to the inspection point of contract to ascertain whether the facility (i) grants consent and (ii) requests assistance in preparing for the inspection. In absence of consent within four hours of facility receipt, BIS intends to seek an administrative warrant
                  (A) Indicated whether it grants consent.(B) May request advance team support. No requirement for reimbursement of U.S. Government's services.

                  (B) Preparation for inspection
                  (1) BIS advance team generally arrives in the vicinity of the facility to be inspected 1-2 days after OPCW notification for logistical and administrative preparations
                  If advance team support is provided, facility works with the advance team on inspection-related issues.

                  (2) If records for activities that took place under the previous ownership of the facility are deemed relevant to the inspection, BIS will contact the previous owner of the facility to arrange for access to any such records required under the CWCR that have not been transferred to the current owner
                  The current owner of the facility must inform BIS if the previous owner of the facility did not transfer (to the current owner) records for activities that took place under the previous ownership.

              (2) Timing of notice—(i) Schedule 1 facilities. For declared Schedule 1 facilities, the Technical Secretariat will notify the USNA of an initial inspection not less than 72 hours prior to arrival of the Inspection Team in the United States, and will notify the USNA of a routine inspection not less than 24 hours prior to arrival of the Inspection Team in the United States. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact of the facility as soon as possible after the OPCW notifies the USNA of the inspection.
              (ii) Schedule 2 plant sites. For declared Schedule 2 plant sites, the Technical Secretariat will notify the USNA of an initial or routine inspection not less than 48 hours prior to arrival of the Inspection Team at the plant site to be inspected. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact at the plant site as soon as possible after the OPCW notifies the USNA of the inspection.
              (iii) Schedule 3 and UDOC plant sites. For declared Schedule 3 and UDOC plant sites, the Technical Secretariat will notify the USNA of a routine inspection not less than 120 hours prior to arrival of the Inspection Team at the plant site to be inspected. The USNA will provide written notice to the owner and to the operator, occupant or agent in charge of the premises within six hours of receiving notification from the OPCW Technical Secretariat or as soon as possible thereafter. BIS will provide Host Team notice to the inspection point of contact of the plant site as soon as possible after the OPCW notifies the USNA of the inspection.
              (b) Period of inspections—(1) Schedule 1 facilities. For a declared Schedule 1 facility, the Convention does not specify a maximum duration for an initial inspection. The estimated period of routine inspections will be as stated in the facility agreement, unless extended by agreement between the Inspection Team and the Host Team Leader, and will be based on the risk to the object and purpose of the Convention posed by the quantities of chemicals produced, the characteristics of the facility and the nature of the activities carried out there. The Host Team Leader will consult with the inspected facility on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See § 716.4(c) and (i) of the CWCR for a description of these activities.
              (2) Schedule 2 plant sites. For declared Schedule 2 plant sites, the maximum duration of initial and routine inspections shall be 96 hours, unless extended by agreement between the Inspection Team and the Host Team Leader. The Host Team Leader will consult with the inspected plant site on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See § 716.4(c) and (i) of the CWCR for a description of these activities.
              (3) Schedule 3 and UDOC plant sites. For declared Schedule 3 or UDOC plant sites, the maximum duration of routine inspections shall be 24 hours, unless extended by agreement between the Inspection Team and the Host Team Leader. The Host Team Leader will consult with the inspected plant site on any request for extension of an inspection prior to making an agreement with the Inspection Team. Activities involving the pre-inspection briefing and preliminary findings are in addition to inspection activities. See § 716.4(c) and (i) of the CWCR for a description of these activities.
              (c) Frequency of inspections. The frequency of inspections is as follows:
              (1) Schedule 1 facilities. As provided by the Convention, the frequency of inspections at declared Schedule 1 facilities is determined by the OPCW based on the risk to the object and purpose of the Convention posed by the quantities of chemicals produced, the characteristics of the facility and the nature of the activities carried out at the facility. The frequency of inspections will be stated in the facility agreement.
              (2) Schedule 2 plant sites. As provided by the Convention and the Act, the maximum number of inspections at declared Schedule 2 plant sites is two per calendar year per plant site. The OPCW will determine the frequency of routine inspections for each declared Schedule 2 plant site based on the Inspection Team's assessment of the risk to the object and purpose of the Convention posed by the relevant chemicals, the characteristics of the plant site, and the nature of the activities carried out there. The frequency of inspections will be stated in the facility agreement, if applicable.
              (3) Schedule 3 plant sites. As provided by the Convention, no declared Schedule 3 plant site may receive more than two inspections per calendar year and the combined number of inspections of Schedule 3 and UDOC plant sites in the United States may not exceed 20 per calendar year.
              (4) UDOC plant sites. As provided by the Convention, no declared UDOC plant site may receive more than two inspections per calendar year and the combined number of inspections of Schedule 3 and UDOC plant sites in the United States may not exceed 20 per calendar year.

              § 716.6
              Facility agreements.
              (a) Description and requirements. A facility agreement is a site-specific agreement between the U.S. Government and the OPCW. Its purpose is to define procedures for inspections of a specific declared facility that is subject to inspection because of the type or amount of chemicals it produces, processes or consumes.
              (1) Schedule 1 facilities. The Convention requires that facility agreements be concluded between the United States and the OPCW for all declared Schedule 1 facilities. For new Schedule 1 production facilities declared pursuant to § 712.4 of the CWCR, the USNA, in coordination with the Department of Commerce, will conclude a facility agreement with the OPCW before the facility begins producing above 100 grams aggregate of Schedule 1 chemicals.
              (2) Schedule 2 plant sites. The USNA will ensure that such facility agreements are concluded with the OPCW unless the owner, operator, occupant or agent in charge of the plant site and the OPCW Technical Secretariat agree that such a facility agreement is not necessary.
              (3) Schedule 3 and UDOC plant sites. If the owner, operator, occupant or agent in charge of a declared Schedule 3 or UDOC plant site requests a facility agreement, the USNA will ensure that a facility agreement for such a plant site is concluded with the OPCW.
              (b) Notification; negotiation of draft and final facility agreements; and conclusion of facility agreements. Prior to the development of a facility agreement, BIS shall notify the owner, operator, occupant, or agent in charge of the facility, and if the owner, operator, occupant or agent in charge so requests, the notified person may participate in preparations with BIS representatives for the negotiation of such an agreement. During the initial or routine inspection of a declared facility, the Inspection Team and the Host Team will negotiate a draft facility agreement or amendment to a facility agreement. To the maximum extent practicable consistent with the Convention, the owner and the operator, occupant or agent in charge of the facility may observe facility agreement negotiations between the U.S. Government and OPCW. As a general rule, BIS will consult with the affected facility on the contents of the agreements and take the facility's views into consideration during negotiations. BIS will participate in the negotiation of, and approve, all final facility agreements with the OPCW. Facilities will be notified of and have the right to observe final facility agreement negotiations between the United States and the OPCW to the maximum extent practicable, consistent with the Convention. Prior to the conclusion of a final facility agreement, the affected facility will have an opportunity to comment on the facility agreement. BIS will give consideration to such comments prior to approving final facility agreements with the OPCW. The USNA shall ensure that facility agreements for Schedule 1, Schedule 2, Schedule 3 and UDOC facilities are concluded, as appropriate, with the OPCW in coordination with BIS.
              (c) [Reserved]
              (d) Further information. For further information about facility agreements, please write or call: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 4515, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230, Telephone: (202) 482-1001.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

              § 716.7
              Samples.

              The owner, operator, occupant or agent in charge of a facility must provide a sample as provided for in the Convention and the Act and consistent with requirements set forth by the Director of the United States National Authority in 22 CFR part 103. Analysis will be restricted to verifying the absence of undeclared scheduled chemicals, unless otherwise agreed after consultation with the facility representative.

              § 716.8
              On-site monitoring of Schedule 1 facilities.
              Declared Schedule 1 facilities are subject to verification by monitoring with on-site instruments as provided by the Convention. For facilities subject to the CWCR, however, such monitoring is not anticipated. The U.S. Government will ensure that any monitoring that may be requested by the OPCW is carried out pursuant to the Convention and U.S. law.

              § 716.9
              Report of inspection-related costs.
              Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in § 716.6(d) of the CWCR, with the following notation: “Attn: Report of inspection-related costs.”

              § 716.10
              Post-inspection activities.

              BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, within the time-frame specified by BIS (i.e., at least 7 working days from receipt of the report), and BIS will consider them, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter detailing the issues that require follow-up action, e.g., amended declaration requirement (see §§ 712.7(d), 713.5(d), 714.4(d), and 715.2(c) of the CWCR), information on the status of the draft facility agreement, if applicable, and the date on which the report on inspection-related costs (see § 716.9 of the CWCR) is due to BIS.

              Pt. 716, Supp. No. 1
              Supplement No. 1 to Part 716—Notification, Duration and Frequency of Inspections

                  Schedule 1
                  Schedule 2
                  Schedule 3
                  Unscheduled discrete organic chemicals

                  Notice of initial or routine inspection to USNA
                  72 hours prior to arrival of Inspection Team at the point of entry (initial); 24 hours prior to arrival of Inspection Team at the point of entry (routine)
                  48 hours prior to arrival of Inspection Team at the plant site
                  120 hours prior to arrival of Inspection Team at the plant site
                  120 hours prior to arrival of Inspection Team at the plant site.

                  Duration of inspection
                  As specified in facility agreement
                  96 hours
                  24 hours
                  24 hours.

                  Maximum number of inspections
                  Determined by OPCW based on characteristics of facility and the nature of the activities carried out at the facility
                  2 per calendar year per plant site
                  2 per calendar year per plant site
                  2 per calendar year per plant site.

                  Notification of challenge inspection to USNA*
                  12 hours prior to arrival of inspection team at the point of entry.

                  Duration of Challenge inspection*
                  84 hours.

                * See part 717 of the CWCR.

              Supplement Nos. 2-3 to Part 716 [Reserved]

            Pt. 717
            PART 717—CWC CLARIFICATION PROCEDURES (CONSULTATIONS AND CHALLENGE INSPECTIONS)

              Sec.
              717.1
              Clarification procedures; challenge inspection requests pursuant to Article IX of the Convention.
              717.2
              Challenge inspections.
              717.3
              Samples.
              717.4
              Report of inspection-related costs.
              717.5
              Post-inspection activities.

              Authority:
              22 U.S.C. 6701 et seq., 2681; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 717.1
              Clarification procedures; challenge inspection requests pursuant to Article IX of the Convention.
              (a) Article IX of the Convention sets forth procedures for clarification, between States Parties, of issues about compliance with the Convention. States Parties may attempt to resolve such issues through consultation between themselves or through the Organization for the Prohibition of Chemical Weapons (OPCW). A State Party may also request the OPCW to conduct an on-site challenge inspection of any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party. Such an on-site challenge inspection request shall be for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the Convention.
              (b) In the event that BIS receives a request for clarification, pursuant to Article IX of the Convention, concerning possible non-compliance with the CWC, any person or facility subject to the CWCR (parts 710 through 729 of this subchapter) that receives an official written request from BIS for clarification must, within five working days from receipt of such request, provide BIS with any relevant information required to respond to the OPCW or the State Party(ies) who requested clarification under Article IX. BIS will contact the person or facility subject to the Article IX clarification, as early as practicable, prior to issuing an official written request for clarification to the person or facility.

              § 717.2
              Challenge inspections.
              Persons or facilities, other than U.S. Government facilities as defined in § 710.2(a) of the CWCR, may be subject to a challenge inspection by the OPCW concerning possible non-compliance with the requirements of the Convention, irrespective of whether or not they are required to submit declarations or reports under the CWCR. BIS will host and escort the international Inspection Team for challenge inspections in the United States of such persons or facilities.
              (a) Consent to challenge inspections; warrants for challenge inspections. (1) The owner, operator, occupant or agent in charge of a facility may consent to a challenge inspection. The individual giving consent on behalf of the facility represents that he or she has the authority to make this decision for the facility. The facility must respond to the notice of inspection, which includes within it a request for consent to the inspection, within four hours of the facility's receipt of the notice of inspection from BIS.
              (2) In instances where the owner, operator, occupant or agent in charge of a facility does not consent to a challenge inspection, BIS will assist the Department of Justice in seeking a criminal warrant as provided by the Act. The existence of a facility agreement does not in any way limit the right of the operator of the facility to withhold consent to a challenge inspection request.
              (b) Notice of challenge inspection. Challenge inspections may be made only upon issuance of written notice by the United States National Authority (USNA) to the owner and to the operator, occupant or agent in charge of the premises. BIS will provide notice of inspection to the inspection point of contact at such time that a person or facility has been clearly established, if possible, and when notification is deemed appropriate. If the United States is unable to provide actual written notice to the owner and to the operator, occupant or agent in charge, BIS (or another appropriate agency, if BIS is unable) may post notice prominently at the plant, plant site or other facility or location to be inspected.
              (1) Timing. The OPCW will notify the USNA of a challenge inspection not less than 12 hours before the planned arrival of the Inspection Team at the U.S. point of entry. Written notice will be provided to the owner and to the operator, occupant, or agent in charge of the premises at any appropriate time determined by the USNA after receipt of notification from the OPCW Technical Secretariat.
              (2)(i) Content of notice. The notice of inspection shall include all appropriate information provided by the OPCW to the United States National Authority concerning:
              (A) The type of inspection;
              (B) The basis for the selection of the facility or locations for the type of inspection sought;
              (C) The time and date that the inspection will begin and the period covered by the inspection;
              (D) The names and titles of the Inspection Team members; and
              (E) All appropriate evidence or reasons provided by the requesting State Party for seeking the inspection.
              (ii) In addition to appropriate information provided by the OPCW in its notification to the USNA, the notice of inspection that BIS delivers to the facility will request the facility to indicate whether it will consent to an inspection and will state whether an advance team is available to assist the site in preparation for the inspection. If an advance team is available, facilities that request advance team assistance are not required to reimburse the U.S. Government for costs associated with these activities. If a facility does not agree to provide consent to an inspection within four hours of receipt of the inspection notification, BIS will assist the Department of Justice in seeking a criminal warrant.
              (c) Period of inspection. Challenge inspections will not exceed 84 hours, unless extended by agreement between the Inspection Team and the Host Team Leader.
              (d) Scope and conduct of inspections—(1) General. Each inspection shall be limited to the purposes described in this section and conducted in the least intrusive manner, consistent with the effective and timely accomplishment of its purpose as provided in the Convention.
              (2) Scope of inspections. If an owner, operator, occupant, or agent in charge of a facility consents to a challenge inspection, the inspection will be conducted under the authority of the Act and in accordance with the provisions of Article IX and applicable provisions of the Verification Annex of the Convention. If consent is not granted, the inspection will be conducted pursuant to the terms of a criminal warrant issued under the authority of the Act.
              (3) Hours of inspections. Consistent with the provisions of the Convention, the Host Team will ensure, to the extent possible, that each inspection is commenced, conducted, and concluded during ordinary working hours, but no inspection shall be prohibited or otherwise disrupted from commencing, continuing or concluding during other hours.
              (4) Health and safety regulations and requirements. In carrying out their activities, the Inspection Team and Host Team shall observe federal, state, and local health and safety regulations and health and safety requirements established at the inspection site, including those for the protection of controlled environments within a facility and for personal safety.
              (5) Pre-inspection briefing. Upon arrival of the Inspection Team and the Host Team in the vicinity of the inspection site and before commencement of the inspection, facility representatives will provide the Inspection Team and the Host Team with a pre-inspection briefing concerning the facility, the activities carried out there, safety measures, and administrative and logistical arrangements necessary for the inspection, which may be aided with the use of maps and other documentation as deemed appropriate by the facility. The time spent for the briefing may not exceed three hours.

              § 717.3
              Samples.

              If requested by the Inspection Team, the owner, operator, occupant or agent in charge of a facility must provide a sample, as provided for in the Convention and the Act and consistent with requirements set forth by the Director of the United States National Authority in 22 CFR part 103. This may be done by providing a sample, taken in the presence of the Inspection Team, to the U.S. Host Team leader, who will then release it to the Inspection Team for analysis. Analysis of the sample may be restricted to verifying the presence or absence of Schedule 1, 2, or 3 chemicals, or appropriate degradation products, unless agreed otherwise.

              § 717.4
              Report of inspection-related costs.
              Pursuant to section 309(b)(5) of the Act, any facility that has undergone any inspections pursuant to the CWCR during a given calendar year must report to BIS within 90 days of an inspection on its total costs related to that inspection. Although not required, such reports should identify categories of costs separately if possible, such as personnel costs (production-line, administrative, legal), costs of producing records, and costs associated with shutting down chemical production or processing during inspections, if applicable. This information should be reported to BIS on company letterhead at the address given in § 716.6(d) of the CWCR, with the following notation: “AATTN: Report of Inspection-related Costs.”

              § 717.5
              Post-inspection activities.
              BIS will forward a copy of the final inspection report to the inspected facility for their review upon receipt from the OPCW. Facilities may submit comments on the final inspection report to BIS, and BIS will consider them, to the extent possible, when commenting on the final report. BIS will also send facilities a post-inspection letter detailing the issues that require follow-up action and the date on which the report on inspection-related costs (see § 717.4 of the CWCR) is due to BIS.

            Pt. 718
            PART 718—CONFIDENTIAL BUSINESS INFORMATION

              Sec.
              718.1
              Definition.
              718.2
              Identification of confidential business information.
              718.3
              Disclosure of confidential business information.
              Supplement No. 1 to Part 718—Confidential Business Information Declared or Reported

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 718.1
              Definition.
              The Chemical Weapons Convention Implementation Act of 1998 (“the Act”) defines confidential business information as information included in categories specifically identified in sections 103(g)(1) and 304(e)(2) of the Act and other trade secrets as follows:
              (a) Financial data;
              (b) Sales and marketing data (other than shipment data);
              (c) Pricing data;
              (d) Personnel data;
              (e) Research data;
              (f) Patent data;
              (g) Data maintained for compliance with environmental or occupational health and safety regulations;
              (h) Data on personnel and vehicles entering and personnel and personal passenger vehicles exiting the site;
              (i) Any chemical structure;
              (j) Any plant design, process, technology or operating method;
              (k) Any operating requirement, input, or result that identifies any type or quantity of chemicals used, processed or produced;
              (l) Any commercial sale, shipment or use of a chemical; or
              (m) Information that qualifies as a trade secret under 5 U.S.C. 552(b)(4) (Freedom of Information Act), provided such trade secret is obtained from a U.S. person or through the U.S. Government.

              718.2
              Identification of confidential business information.
              (a) General. Certain confidential business information submitted to BIS in declarations and reports does not need to be specifically identified and marked by the submitter, as described in paragraph (b) of this section. Other confidential business information submitted to BIS in declarations and reports and confidential business information provided to the Host Team during inspections must be identified by the inspected facility so that the Host Team can arrange appropriate marking and handling.
              (b) Confidential business information contained in declarations and reports. (1) BIS has identified those data fields on the declaration and report forms that request “confidential business information” as defined by the Act. These data fields are identified in the table provided in supplement no. 1 to this part.

              (2) You must specifically identify in a cover letter submitted with your declaration or report any additional information on a declaration or report form (i.e., information not provided in one of the data fields listed in the table included in supplement no. 1 to this part), including information provided in attachments to Form A or Form B, that you believe is confidential business information, as defined by the Act, and must describe how disclosure would likely result in competitive harm.

                Note to § 718.2(b):
                BIS has also determined that descriptions of Schedule 1 facilities submitted with Initial Declarations as attachments to Form A contain confidential business information, as defined by the Act.

              (c) Confidential business information contained in advance notifications. Information contained in advance notifications of exports and imports of Schedule 1 chemicals is not subject to the confidential business information provisions of the Act. You must identify information in your advance notifications of Schedule 1 imports that you consider to be privileged and confidential, and describe how disclosure would likely result in competitive harm. See § 718.3(b) of the CWCR for provisions on disclosure to the public of such information by the U.S. Government.
              (d) Confidential business information related to inspections disclosed to, reported to, or otherwise acquired by, the U.S. Government. (1) During inspections, certain confidential business information, as defined by the Act, may be disclosed to the Host Team. Facilities being inspected are responsible for identifying confidential business information to the Host Team, so that if it is disclosed to the Inspection Team, appropriate marking and handling can be arranged, in accordance with the provisions of the Convention (see § 718.3(c)(1)(ii) of the CWCR). Confidential business information not related to the purpose of an inspection or not necessary for the accomplishment of an inspection, as determined by the Host Team, may be removed from sight, shrouded, or otherwise not disclosed.
              (2) Before or after inspections, confidential business information related to an inspection that is contained in any documents or that is reported to, or otherwise acquired by, the U.S. Government, such as facility information for pre-inspection briefings, facility agreements, and inspection reports, must be identified by the facility so that it may be appropriately marked and handled. If the U.S. Government creates derivative documents from such documents or reported information, they will also be marked and handled as confidential business information.

              § 718.3
              Disclosure of confidential business information.
              (a) General. Confidentiality of information will be maintained by BIS consistent with the non-disclosure provisions of the Act, the Export Administration Regulations (15 CFR parts 730 through 774), the International Traffic in Arms Regulations (22 CFR parts 120 through 130), and applicable exemptions under the Freedom of Information Act, as appropriate.
              (b) Disclosure of confidential business information contained in advance notifications. Information contained in advance notifications of exports and imports of Schedule 1 chemicals is not subject to the confidential business information provisions of the Act. Disclosure of such information will be in accordance with the provisions of the relevant statutory and regulatory authorities as follows:
              (1) Exports of Schedule 1 chemicals. Confidentiality of all information contained in these advance notifications will be maintained consistent with the non-disclosure provisions of the Export Administration Regulations (15 CFR parts 730 through 774), the International Traffic in Arms Regulations (22 CFR parts 120 through 130), and applicable exemptions under the Freedom of Information Act, as appropriate; and
              (2) Imports of Schedule 1 chemicals. Confidentiality of information contained in these advance notifications will be maintained pursuant to applicable exemptions under the Freedom of Information Act.
              (c) Disclosure of confidential business information pursuant to § 404(b) of the Act—(1) Disclosure to the Organization for the Prohibition of Chemical Weapons (OPCW). (i) As provided by Section 404(b)(1) of the Act, the U.S. Government will disclose or otherwise provide confidential business information to the Technical Secretariat of the OPCW or to other States Parties to the Convention, in accordance with provisions of the Convention, particularly with the provisions of the Annex on the Protection of Confidential Information (Confidentiality Annex).
              (ii) Convention provisions. (A) The Convention provides that States Parties may designate information submitted to the Technical Secretariat as confidential, and requires the OPCW to limit access to, and prevent disclosure of, information so designated, except that the OPCW may disclose certain confidential information submitted in declarations to other States Parties if requested. The OPCW has developed a classification system whereby States Parties may designate the information they submit in their declarations as “restricted,” “protected,” or “highly protected,” depending on the sensitivity of the information. Other States Parties are obligated, under the Convention, to store and restrict access to information which they receive from the OPCW in accordance with the level of confidentiality established for that information.
              (B) The OPCW Inspection Team members are prohibited, under the terms of their employment contracts and pursuant to the Confidentiality Annex of the Convention, from disclosing to any unauthorized persons, during their employment and for five years after termination of their employment, any confidential information coming to their knowledge or into their possession in the performance of their official duties.
              (iii) U.S. Government designation of information to the Technical Secretariat. It is the policy of the U.S. Government to designate all facility information it provides to the Technical Secretariat in declarations, reports and Schedule 1 advance notifications as “protected.” It is the policy of the U.S. Government to designate confidential business information that it discloses to Inspection Teams during inspections as “protected” or “highly protected,” depending on the sensitivity of the information. The Technical Secretariat is responsible for storing and limiting access to any confidential business information contained in a document according to its established procedures.
              (2) Disclosure to Congress. Section 404(b)(2) of the Act provides that the U.S. Government must disclose confidential business information to any committee or subcommittee of Congress with appropriate jurisdiction upon the written request of the chairman or ranking minority member of such committee or subcommittee. No such committee or subcommittee, and no member and no staff member of such committee or subcommittee, may disclose such information or material except as otherwise required or authorized by law.
              (3) Disclosure to other Federal agencies for law enforcement actions and disclosure in enforcement proceedings under the Act. Section 404(b)(3) of the Act provides that the U.S. Government must disclose confidential business information to other Federal agencies for enforcement of the Act or any other law, and must disclose such information when relevant in any proceeding under the Act. Disclosure will be made in such manner as to preserve confidentiality to the extent practicable without impairing the proceeding. Section 719.14(b) of the CWCR provides that all hearings will be closed, unless the Administrative Law Judge for good cause shown determines otherwise. Section 719.20 of the CWCR provides that parties may request that the administrative law judge segregate and restrict access to confidential business information contained in material in the record of an enforcement proceeding.

              (4) Disclosure to the public; national interest determination. Section 404(c) of the Act provides that confidential business information, as defined by the Act, that is in the possession of the U.S. Government, is exempt from public disclosure in response to a Freedom of Information Act request, except when such disclosure is determined to be in the national interest.
              (i) National interest determination. The United States National Authority (USNA), in coordination with the CWC interagency group, shall determine on a case-by-case basis if disclosure of confidential business information in response to a Freedom of Information Act request is in the national interest.
              (ii) Notification of intent to disclose pursuant to a national interest determination. The Act provides for notification to the affected person of intent to disclose confidential business information based on the national interest, unless such notification of intent to disclose is contrary to national security or law enforcement needs. If, after coordination with the agencies that constitute the CWC interagency group, the USNA does not determine that such notification of intent to disclose is contrary to national security or law enforcement needs, the USNA will notify the person that submitted the information and the person to whom the information pertains of the intent to disclose the information.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

              Pt. 718, Supp. No. 1
              Supplement No. 1 to Part 718—Confidential Business Information Declared or Reported *

                  Fields containingconfidential business
                    information

                  Schedule 1 Forms:

                  Certification Form
                  NONE.

                  Form 1-1
                  NONE.

                  Form 1-2
                  All fields.

                  Form 1-2A
                  All fields.

                  Form 1-2B
                  All fields.

                  Form 1-3
                  All fields.

                  Form 1-4
                  All fields.

                  Schedule 2 Forms:

                  Certification Form
                  NONE.

                  Form 2-1
                  NONE.

                  Form 2-2
                  Question 2-2.9

                  Form 2-3
                  All fields.

                  Form 2-3A
                  All fields.

                  Form 2-3B
                  All fields.

                  Form 2-3C
                  All fields.

                  Form 2-4
                  All fields.

                  Schedule 3 Forms:

                  Certification Form
                  NONE.

                  Form 3-1
                  NONE.

                  Form 3-2
                  NONE.

                  Form 3-3
                  All fields.

                  Form 3-4
                  All fields.

                  Unscheduled Discrete Organic Chemicals Forms:

                  Certification Form
                  NONE.

                  Form UDOC
                  NONE.

                  FORMS A and B and attachments (all Schedules and UDOCs)
                  Case-by-case; must be identified by submitter.

                * This table lists those data fields on the Declaration and Report Forms that request “confidential business information” (CBI) as defined by the Act (sections 103(g) and 304(e)(2)). As provided by section 404(a) of the Act, CBI is exempt from disclosure in response to a Freedom of Information Act (FOIA) request under sections 552(b)(3) and 552(b)(4) (5 U.S.C.A. 552(b)(3)-(4)), unless a determination is made, pursuant to section 404(c) of the Act, that such disclosure is in the national interest. Other FOIA exemptions to disclosure may also apply. You must identify CBI provided in Form A and/or Form B attachments, and provide the reasons supporting your claim of confidentiality, except that Schedule 1 facility technical descriptions submitted with initial declarations are always considered to include CBI. If you believe that information you are submitting in a data field marked “none” in the Table is CBI, as defined by the Act, you must identify the specific information and provide the reasons supporting your claim of confidentiality in a cover letter.

            Pt. 719
            PART 719—ENFORCEMENT

              Sec.
              719.1
              Scope and definitions.
              719.2
              Violations of the Act subject to administrative and criminal enforcement proceedings.
              719.3
              Violations of the IEEPA subject to judicial enforcement proceedings.
              719.4
              Violations and sanctions under the Act not subject to proceedings under the CWCR.
              719.5
              Initiation of administrative proceedings.
              719.6
              Request for hearing and answer.
              719.7
              Representation.
              719.8
              Filing and service of papers other than the NOVA.
              719.9
              Summary decision.
              719.10
              Discovery.
              719.11
              Subpoenas.
              719.12
              Matters protected against disclosure.
              719.13
              Prehearing conference.
              719.14
              Hearings.
              719.15
              Procedural stipulations.
              719.16
              Extension of time.
              719.17
              Post-hearing submissions.
              719.18
              Decisions.
              719.19
              Settlement.
              719.20
              Record for decision.
              719.21
              Payment of final assessment.
              719.22
              Reporting a violation.

              Authority:
              22 U.S.C. 6701 et seq.; 50 U.S.C. 1601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR 1994, Comp., p. 950; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 719.1
              Scope and definitions.
              (a) Scope. This part 719 describes the various sanctions that apply to violations of the Act and the CWCR. It also establishes detailed administrative procedures for certain violations of the Act. The three categories of violations are as follows:
              (1) Violations of the Act subject to administrative and criminal enforcement proceedings. Section 719.2 of the CWCR sets forth violations for which the statutory basis is the Act. BIS investigates these violations and, for administrative proceedings, prepares charges, provides legal representation to the U.S. Government, negotiates settlements, and makes recommendations to officials of the Department of State with respect to the initiation and resolution of proceedings. The administrative procedures applicable to these violations are found in §§ 719.5 through 719.22 of the CWCR. The Department of State gives notice of initiation of administrative proceedings and issues orders imposing penalties pursuant to 22 CFR part 103, subpart C.
              (2) Violations of the International Emergency Economic Powers Act (IEEPA) subject to judicial enforcement proceedings. Section 719.3 of the CWCR sets forth violations of the Chemical Weapons Convention for which the statutory basis is the IEEPA. BIS refers these violations to the Department of Justice for civil or criminal judicial enforcement.
              (3) Violations and sanctions under the Act not subject to proceedings under the CWCR. Section 719.4 of the CWCR sets forth violations and sanctions under the Act that are not violations of the CWCR and that are not subject to proceedings under the CWCR. This section is included solely for informational purposes. BIS may assist in investigations of these violations, but has no authority to initiate any enforcement action under the CWCR.

                Note to § 719.1(a):
                This part 719 does not apply to violations of the export requirements imposed pursuant to the Chemical Weapons Convention and set forth in the Export Administration Regulations (EAR) (15 CFR parts 730 through 774) and in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130).

              (b) Definitions. The following are definitions of terms as used only in parts 719 and 720 of the CWCR. For definitions of terms applicable to parts 710 through 718 and parts 721 and 722 of the CWCR, see part 710 of the CWCR.

                Act (The). The Chemical Weapons Convention Implementation Act of 1998 (22 U.S.C. 6701-6777).

                Assistant Secretary for Export Enforcement. The Assistant Secretary for Export Enforcement, Bureau of Industry and Security, United States Department of Commerce.

                Final decision. A decision or order assessing a civil penalty, or otherwise disposing of or dismissing a case, which is not subject to further administrative review, but which may be subject to collection proceedings or judicial review in an appropriate Federal court as authorized by law.

                IEEPA. The International Emergency Economic Powers Act, as amended (50 U.S.C. 1701-1706).

                Office of Chief Counsel. The Office of Chief Counsel for Industry and Security, United States Department of Commerce.

                Report. For purposes of parts 719 and 720 of the CWCR, the term “report” means any declaration, report, or advance notification required under parts 712 through 715 of the CWCR.

                Respondent. Any person named as the subject of a letter of intent to charge, or a Notice of Violation and Assessment (NOVA) and proposed order.

                Under Secretary, Bureau of Industry and Security. The Under Secretary, Bureau of Industry and Security, United States Department of Commerce.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

              § 719.2
              Violations of the Act subject to administrative and criminal enforcement proceedings.
              (a) Violations—(1) Refusal to permit entry or inspection. No person may willfully fail or refuse to permit entry or inspection, or disrupt, delay or otherwise impede an inspection, authorized by the Act.

              (2) Failure to establish or maintain records. No person may willfully fail or refuse:
              (i) To establish or maintain any record required by the Act or the CWCR; or
              (ii) To submit any report, notice, or other information to the United States Government in accordance with the Act or the CWCR; or
              (iii) To permit access to or copying of any record required to be established or maintained by the Act or the CWCR, including any record that is exempt from disclosure under the Act or the CWCR.
              (b) Civil penalties—(1) Civil penalty for refusal to permit entry or inspection. Any person that is determined to have willfully failed or refused to permit entry or inspection, or to have disrupted, delayed or otherwise impeded an authorized inspection, as set forth in paragraph (a)(1) of this section, shall pay a civil penalty in an amount not to exceed $25,000 for each violation. Each day the violation continues constitutes a separate violation.
              (2) Civil penalty for failure to establish or maintain records. Any person that is determined to have willfully failed or refused to establish or maintain any record or submit any report, notice, or other information required by the Act or the CWCR, or to have willfully failed or refused to permit access to or copying of any record, including any record exempt from disclosure under the Act or the CWCR as set forth in paragraph (a)(2) of this section, shall pay a civil penalty in an amount not to exceed $5,000 for each violation.
              (c) Criminal penalty. Any person that knowingly violates the Act by willfully failing or refusing to permit entry or inspection authorized by the Act; or by willfully disrupting, delaying or otherwise impeding an inspection authorized by the Act; or by willfully failing or refusing to establish or maintain any required record, or to submit any required report, notice, or other information; or by willfully failing or refusing to permit access to or copying of any record, including records exempt from disclosure under the Act or the CWCR, shall, in addition to or in lieu of any civil penalty that may be imposed, be fined under Title 18 of the United States Code, be imprisoned for not more than one year, or both.
              (d) Denial of export privileges. Any person in the United States or any U.S. national may be subject to a denial of export privileges after notice and opportunity for hearing pursuant to part 720 of the CWCR if that person has been convicted under Title 18, section 229 of the United States Code.

              § 719.3
              Violations of the IEEPA subject to judicial enforcement proceedings.
              (a) Violations—(1) Import restrictions involving Schedule 1 chemicals. Except as otherwise provided in § 712.2 of the CWCR, no person may import any Schedule 1 chemical (See supplement no. 1 to part 712 of the CWCR) unless:
              (i) The import is from a State Party;
              (ii) The import is for research, medical, pharmaceutical, or protective purposes;
              (iii) The import is in types and quantities strictly limited to those that can be justified for such purposes; and
              (iv) The importing person has notified BIS not less than 45 calendar days before the import pursuant to § 712.6 of the CWCR.
              (2) Import restrictions involving Schedule 2 chemicals. Except as otherwise provided in § 713.1 of the CWCR, no person may, on or after April 29, 2000, import any Schedule 2 chemical (see supplement no. 1 to part 713 of the CWCR) from any destination other than a State Party.
              (b) Civil penalty. A civil penalty not to exceed $50,000 may be imposed in accordance with this part on any person for each violation of this section. 1

                  1 The maximum civil penalty allowed under the International Emergency Economic Powers Act is $50,000 for any violation committed on or after October 23, 1996 (15 CFR 6.4(a)(5)).

              (c) Criminal penalty. Whoever willfully violates paragraph (a)(1) or (2) of this section shall, upon conviction, be fined not more than $50,000, or, if a natural person, imprisoned for not more than ten years, or both; and any officer, director, or agent of any corporation who knowingly participates in such violation may be punished by like fine, imprisonment, or both. 2

                  2 Alternatively, sanctions may be imposed under 18 U.S.C. 3571, a criminal code provision that establishes a maximum criminal fine for a felony that is the greatest of: (1) The amount provided by the statute that was violated; (2) an amount not more than $250,000 for an individual, or not more than $500,000 for an organization; or (3) an amount based on gain or loss from the offense.

              [71 FR 24929, Apr. 27, 2006, as amended at 72 FR 14410, Mar. 28, 2007]

              § 719.4
              Violations and sanctions under the Act not subject to proceedings under the CWCR.
              (a) Criminal penalties for development or use of a chemical weapon. Any person who violates 18 U.S.C. 229 shall be fined, or imprisoned for any term of years, or both. Any person who violates 18 U.S.C. 229 and by whose action the death of another person is the result shall be punished by death or imprisoned for life.
              (b) Civil penalty for development or use of a chemical weapon. The Attorney General may bring a civil action in the appropriate United States district court against any person who violates 18 U.S.C. 229 and, upon proof of such violation by a preponderance of the evidence, such person shall be subject to pay a civil penalty in an amount not to exceed $100,000 for each such violation.
              (c) Criminal forfeiture. (1) Any person convicted under section 229A(a) of Title 18 of the United States Code shall forfeit to the United States irrespective of any provision of State law:
              (i) Any property, real or personal, owned, possessed, or used by a person involved in the offense;
              (ii) Any property constituting, or derived from, and proceeds the person obtained, directly or indirectly, as the result of such violation; and
              (iii) Any of the property used in any manner or part, to commit, or to facilitate the commission of, such violation.
              (2) In lieu of a fine otherwise authorized by section 229A(a) of Title 18 of the United States Code, a defendant who derived profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds.
              (d) Injunction. (1) The United States may, in a civil action, obtain an injunction against:
              (i) The conduct prohibited under section 229 or 229C of Title 18 of the United States Code; or
              (ii) The preparation or solicitation to engage in conduct prohibited under section 229 or 229D of Title 18 of the United States Code.
              (2) In addition, the United States may, in a civil action, restrain any violation of section 306 or 405 of the Act, or compel the taking of any action required by or under the Act or the Convention.

              § 719.5
              Initiation of administrative proceedings.
              (a) Letter of intent to charge. The Director of the Office of Export Enforcement, Bureau of Industry and Security, may notify a respondent by letter of the intent to charge. This letter of intent to charge will advise a respondent that BIS has conducted an investigation and intends to recommend that the Secretary of State issue a Notice of Violation and Assessment (NOVA). The letter of intent to charge will be accompanied by a draft NOVA and proposed order, and will give the respondent a specified period of time to contact BIS to discuss settlement of the allegations set forth in the draft NOVA. An administrative enforcement proceeding is not initiated by a letter of intent to charge. If the respondent does not contact BIS within the specified time, or if the respondent requests it, BIS will make its request for initiation of an administrative enforcement proceeding to the Secretary of State in accordance with paragraph (b) of this section.
              (b) Request for Notice of Violation and Assessment (NOVA). The Director of the Office of Export Enforcement, Bureau of Industry and Security, may request that the Secretary of State initiate an administrative enforcement proceeding under this § 719.5 and 22 CFR 103.7. If the request is in accordance with applicable law, the Secretary of State will initiate an administrative enforcement proceeding by issuing a NOVA. The Office of Chief Counsel shall serve the NOVA as directed by the Secretary of State.

              (c) Content of NOVA. The NOVA shall constitute a formal complaint, and will set forth the basis for the issuance of the proposed order. It will set forth the alleged violation(s) and the essential facts with respect to the alleged violation(s), reference the relevant statutory, regulatory or other provisions, and state the amount of the civil penalty to be assessed. The NOVA will inform the respondent of the right to request a hearing pursuant to § 719.6 of the CWCR, inform the respondent that failure to request such a hearing shall result in the proposed order becoming final and unappealable on signature of the Secretary of State, and provide payment instructions. A copy of the regulations that govern the administrative proceedings will accompany the NOVA.
              (d) Proposed order. A proposed order shall accompany every NOVA, letter of intent to charge, and draft NOVA. It will briefly set forth the substance of the alleged violation(s) and the statutory, regulatory or other provisions violated. It will state the amount of the civil penalty to be assessed.
              (e) Notice. Notice of the intent to charge or of the initiation of formal proceedings shall be given to the respondent (or respondent's agent for service of process, or attorney) by sending relevant documents, via first class mail, facsimile, or by personal delivery.

              § 719.6
              Request for hearing and answer.
              (a) Time to answer. If the respondent wishes to contest the NOVA and proposed order issued by the Secretary of State, the respondent must request a hearing in writing within 15 business days from the postmarked date of the NOVA. If the respondent requests a hearing, the respondent must answer the NOVA within 30 days from the date of the request for hearing. The request for hearing and answer must be filed with the Administrative Law Judge (ALJ), along with a copy of the NOVA and proposed order, and served on the Office of Chief Counsel, and any other address(es) specified in the NOVA, in accordance with § 719.8 of the CWCR.
              (b) Content of answer. The respondent's answer must be responsive to the NOVA and proposed order, and must fully set forth the nature of the respondent's defense(s). The answer must specifically admit or deny each separate allegation in the NOVA; if the respondent is without knowledge, the answer will so state and will operate as a denial. Failure to deny or controvert a particular allegation will be deemed an admission of that allegation. The answer must also set forth any additional or new matter the respondent contends supports a defense or claim of mitigation. Any defense or partial defense not specifically set forth in the answer shall be deemed waived, and evidence thereon may be refused, except for good cause shown.
              (c) English required. The request for hearing, answer, and all other papers and documentary evidence must be submitted in English.
              (d) Waiver. The failure of the respondent to file a request for a hearing and an answer within the times provided constitutes a waiver of the respondent's right to appear and contest the allegations set forth in the NOVA and proposed order. If no hearing is requested and no answer is provided, the proposed order will be signed and become final and unappealable.

              § 719.7
              Representation.
              A respondent individual may appear and participate in person, a corporation by a duly authorized officer or employee, and a partnership by a partner. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides, if not the United States. The U.S. Government will be represented by the Office of Chief Counsel. A respondent personally, or through counsel or other representative who has the power of attorney to represent the respondent, shall file a notice of appearance with the ALJ, or, in cases where settlement negotiations occur before any filing with the ALJ, with the Office of Chief Counsel.

              § 719.8
              Filing and service of papers other than the NOVA.
              (a) Filing. All papers to be filed with the ALJ shall be addressed to “CWC Administrative Enforcement Proceedings” at the address set forth in the NOVA, or such other place as the ALJ may designate. Filing by United States mail (first class postage prepaid), by express or equivalent parcel delivery service, via facsimile, or by hand delivery, is acceptable. Filing from a foreign country shall be by airmail or via facsimile. A copy of each paper filed shall be simultaneously served on all parties.
              (b) Service. Service shall be made by United States mail (first class postage prepaid), by express or equivalent parcel delivery service, via facsimile, or by hand delivery of one copy of each paper to each party in the proceeding. The Department of State is a party to cases under the CWCR, but will be represented by the Office of Chief Counsel. Therefore, service on the government party in all proceedings shall be addressed to Office of Chief Counsel for Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-3839, Washington, DC 20230, or sent via facsimile to (202) 482-0085. Service on a respondent shall be to the address to which the NOVA and proposed order was sent, or to such other address as the respondent may provide. When a party has appeared by counsel or other representative, service on counsel or other representative shall constitute service on that party.
              (c) Date. The date of filing or service is the day when the papers are deposited in the mail or are delivered in person, by delivery service, or by facsimile. Refusal by the person to be served, or by the person's agent or attorney, of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal.
              (d) Certificate of service. A certificate of service signed by the party making service, stating the date and manner of service, shall accompany every paper, other than the NOVA and proposed order, filed and served on the parties.
              (e) Computation of time. In computing any period of time prescribed or allowed by this part, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, a Sunday, or a legal holiday (as defined in Rule 6(a) of the Federal Rules of Civil Procedure), in which case the period runs until the end of the next day which is neither a Saturday, a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and legal holidays are excluded from the computation when the period of time prescribed or allowed is 7 days or less.

              § 719.9
              Summary decision.
              The ALJ may render a summary decision disposing of all or part of a proceeding on the motion of any party to the proceeding, provided that there is no genuine issue as to any material fact and the party is entitled to summary decision as a matter of law.

              § 719.10
              Discovery.
              (a) General. The parties are encouraged to engage in voluntary discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending proceeding. The provisions of the Federal Rules of Civil Procedure relating to discovery apply to the extent consistent with this part and except as otherwise provided by the ALJ or by waiver or agreement of the parties. The ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. These orders may include limitations on the scope, method, time and place of discovery, and provisions for protecting the confidentiality of classified or otherwise sensitive information, including Confidential Business Information (CBI) as defined by the Act.
              (b) Interrogatories and requests for admission or production of documents. A party may serve on any party interrogatories, requests for admission, or requests for production of documents for inspection and copying, and a party concerned may apply to the ALJ for such enforcement or protective order as that party deems warranted with respect to such discovery. The service of a discovery request shall be made at least 20 days before the scheduled date of the hearing unless the ALJ specifies a shorter time period. Copies of interrogatories, requests for admission and requests for production of documents and responses thereto shall be served on all parties and a copy of the certificate of service shall be filed with the ALJ. Matters of fact or law of which admission is requested shall be deemed admitted unless, within a period designated in the request (at least 10 days after service, or within such additional time as the ALJ may allow), the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which admission is requested or setting forth in detail the reasons why the party to whom the request is directed cannot truthfully either admit or deny such matters.
              (c) Depositions. Upon application of a party and for good cause shown, the ALJ may order the taking of the testimony of any person by deposition and the production of specified documents or materials by the person at the deposition. The application shall state the purpose of the deposition and set forth the facts sought to be established through the deposition.
              (d) Enforcement. The ALJ may order a party to answer designated questions, to produce specified documents or things or to take any other action in response to a proper discovery request. If a party does not comply with such an order, the ALJ may make a determination or enter any order in the proceeding as the ALJ deems reasonable and appropriate. The ALJ may strike related charges or defenses in whole or in part or may take particular facts relating to the discovery request to which the party failed or refused to respond as being established for purposes of the proceeding in accordance with the contentions of the party seeking discovery. In addition, enforcement by any district court of the United States in which venue is proper may be sought as appropriate.

              § 719.11
              Subpoenas.
              (a) Issuance. Upon the application of any party, supported by a satisfactory showing that there is substantial reason to believe that the evidence would not otherwise be available, the ALJ may issue subpoenas to any person requiring the attendance and testimony of witnesses and the production of such books, records or other documentary or physical evidence for the purpose of the hearing, as the ALJ deems relevant and material to the proceedings, and reasonable in scope. Witnesses shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contempt, challenge or refusal to obey a subpoena served upon any person pursuant to this paragraph, any district court of the United States, in which venue is proper, has jurisdiction to issue an order requiring any such person to comply with such subpoena. Any failure to obey such order of the court is punishable by the court as a contempt thereof.
              (b) Service. Subpoenas issued by the ALJ may be served by any of the methods set forth in § 719.8(b) of the CWCR.
              (c) Timing. Applications for subpoenas must be submitted at least 10 days before the scheduled hearing or deposition, unless the ALJ determines, for good cause shown, that extraordinary circumstances warrant a shorter time.

              § 719.12
              Matters protected against disclosure.
              (a) Protective measures. The ALJ may limit discovery or introduction of evidence or issue such protective or other orders as in the ALJ's judgment may be needed to prevent undue disclosure of classified or sensitive documents or information, including Confidential Business Information as defined by the Act. Where the ALJ determines that documents containing classified or sensitive matter must be made available to a party in order to avoid prejudice, the ALJ may direct the other party to prepare an unclassified and nonsensitive summary or extract of the documents. The ALJ may compare the extract or summary with the original to ensure that it is supported by the source document and that it omits only so much as must remain undisclosed. The summary or extract may be admitted as evidence in the record.

              (b) Arrangements for access. If the ALJ determines that the summary procedure outlined in paragraph (a) of this section is unsatisfactory, and that classified or otherwise sensitive matter must form part of the record in order to avoid prejudice to a party, the ALJ may provide the parties opportunity to make arrangements that permit a party or a representative to have access to such matter without compromising sensitive information. Such arrangements may include obtaining security clearances or giving counsel for a party access to sensitive information and documents subject to assurances against further disclosure, including a protective order, if necessary.

              § 719.13
              Prehearing conference.
              (a) On the ALJ's own motion, or on request of a party, the ALJ may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider:
              (1) Simplification of issues;
              (2) The necessity or desirability of amendments to pleadings;
              (3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or
              (4) Such other matters as may expedite the disposition of the proceedings.
              (b) The ALJ may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the ALJ.
              (c) If a prehearing conference is impracticable, the ALJ may direct the parties to correspond with the ALJ to achieve the purposes of such a conference.
              (d) The ALJ will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties.

              § 719.14
              Hearings.
              (a) Scheduling. Upon receipt of a written and dated request for a hearing, the ALJ shall, by agreement with all the parties or upon notice to all parties of at least 30 days, schedule a hearing. All hearings will be held in Washington, DC, unless the ALJ determines, for good cause shown, that another location would better serve the interest of justice.
              (b) Hearing procedure. Hearings will be conducted in a fair and impartial manner by the ALJ. All hearings will be closed, unless the ALJ for good cause shown determines otherwise. The rules of evidence prevailing in courts of law do not apply, and all evidentiary material deemed by the ALJ to be relevant and material to the proceeding and not unduly repetitious will be received and given appropriate weight, except that any evidence of settlement which would be excluded under Rule 408 of the Federal Rules of Evidence is not admissible. Witnesses will testify under oath or affirmation, and shall be subject to cross-examination.
              (c) Testimony and record. (1) A verbatim record of the hearing and of any other oral proceedings will be taken by reporter or by electronic recording, and filed with the ALJ. If any party wishes to obtain a written copy of the transcript, that party shall pay the costs of transcription. The parties may share the costs if both wish a transcript.
              (2) Upon such terms as the ALJ deems just, the ALJ may direct that the testimony of any person be taken by deposition and may admit an affidavit or declaration as evidence, provided that any affidavits or declarations have been filed and served on the parties sufficiently in advance of the hearing to permit a party to file and serve an objection thereto on the grounds that it is necessary that the affiant or declarant testify at the hearing and be subject to cross-examination.
              (d) Failure to appear. If a party fails to appear in person or by counsel at a scheduled hearing, the hearing may nevertheless proceed. The party's failure to appear will not affect the validity of the hearing or any proceeding or action taken thereafter.

              § 719.15
              Procedural stipulations.
              Unless otherwise ordered and subject to § 719.16 of the CWCR, a written stipulation agreed to by all parties and filed with the ALJ will modify the procedures established by this part.

              § 719.16
              Extension of time.

              The parties may extend any applicable time limitation by stipulation filed with the ALJ before the time limitation expires, or the ALJ may, on the ALJ's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time , except that the requirement that a hearing be demanded within 15 days, and the requirement that a final agency decision be made within 30 days, may not be modified.

              § 719.17
              Post-hearing submissions.
              All parties shall have the opportunity to file post-hearing submissions that may include findings of fact and conclusions of law, supporting evidence and legal arguments, exceptions to the ALJ's rulings or to the admissibility of evidence, and proposed orders and settlements.

              § 719.18
              Decisions.
              (a) Initial decision. After considering the entire record in the case, the ALJ will issue an initial decision based on a preponderance of the evidence. The decision will include findings of fact, conclusions of law, and a decision based thereon as to whether the respondent has violated the Act. If the ALJ finds that the evidence of record is insufficient to sustain a finding that a violation has occurred with respect to one or more allegations, the ALJ shall order dismissal of the allegation(s) in whole or in part, as appropriate. If the ALJ finds that one or more violations have been committed, the ALJ shall issue an order imposing administrative sanctions.
              (b) Factors considered in assessing penalties. In determining the amount of a civil penalty, the ALJ shall take into account the nature, circumstances, extent and gravity of the violation(s), and, with respect to the respondent, the respondent's ability to pay the penalty, the effect of a civil penalty on the respondent's ability to continue to do business, the respondent's history of prior violations, the respondent's degree of culpability, the existence of an internal compliance program, and such other matters as justice may require.
              (c) Certification of initial decision. The ALJ shall immediately certify the initial decision and order to the Executive Director of the Office of Legal Adviser, U.S. Department of State, 2201 C Street, NW., Room 5519, Washington, DC 20520, to the Office of Chief Counsel at the address in § 719.8, and to the respondent, by personal delivery or overnight mail.
              (d) Review of initial decision. The initial decision shall become the final agency decision and order unless, within 30 days, the Secretary of State modifies or vacates it, with or without conditions, in accordance with 22 CFR 103.8.

              § 719.19
              Settlement.
              (a) Settlements before issuance of a NOVA. When the parties have agreed to a settlement of the case, the Director of the Office of Export Enforcement will recommend the settlement to the Secretary of State, forwarding a proposed settlement agreement and order, which, in accordance with 22 CFR 103.9(a), the Secretary of State will approve and sign if the recommended settlement is in accordance with applicable law.
              (b) Settlements following issuance of a NOVA. The parties may enter into settlement negotiations at any time during the time a case is pending before the ALJ. If necessary, the parties may extend applicable time limitations or otherwise request that the ALJ stay the proceedings while settlement negotiations continue. When the parties have agreed to a settlement of the case, the Office of Chief Counsel will recommend the settlement to the Secretary of State, forwarding a proposed settlement agreement and order, which, in accordance with 22 CFR 103.9(b), the Secretary will approve and sign if the recommended settlement is in accordance with applicable law.
              (c) Settlement scope. Any respondent who agrees to an order imposing any administrative sanction does so solely for the purpose of resolving the claims in the administrative enforcement proceeding brought under this part. This reflects the fact that the government officials involved have neither the authority nor the responsibility for initiating, conducting, settling, or otherwise disposing of criminal proceedings. That authority and responsibility are vested in the Attorney General and the Department of Justice.

              (d) Finality. Cases that are settled may not be reopened or appealed.

              § 719.20
              Record for decision.
              (a) The record. The transcript of hearings, exhibits, rulings, orders, all papers and requests filed in the proceedings, and, for purposes of any appeal under § 719.18 or under 22 CFR 103.8, the decision of the ALJ and such submissions as are provided for under § 719.18 or 22 CFR 103.8 will constitute the record and the exclusive basis for decision. When a case is settled, the record will consist of any and all of the foregoing, as well as the NOVA or draft NOVA, settlement agreement, and order.
              (b) Restricted access. On the ALJ's own motion, or on the motion of any party, the ALJ may direct that there be a restricted access portion of the record for any material in the record to which public access is restricted by law or by the terms of a protective order entered in the proceedings. A party seeking to restrict access to any portion of the record is responsible, prior to the close of the proceeding, for submitting a version of the document(s) proposed for public availability that reflects the requested deletion. The restricted access portion of the record will be placed in a separate file and the file will be clearly marked to avoid improper disclosure and to identify it as a portion of the official record in the proceedings. The ALJ may act at any time to permit material that becomes declassified or unrestricted through passage of time to be transferred to the unrestricted access portion of the record.
              (c) Availability of documents—(1) Scope. All NOVAs and draft NOVAs, answers, settlement agreements, decisions and orders disposing of a case will be displayed on the BIS Freedom of Information Act (FOIA) Web site, at http://www.bis.doc.gov/foia, which is maintained by the Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce. This office does not maintain a separate inspection facility. The complete record for decision, as defined in paragraphs (a) and (b) of this section will be made available on request.
              (2) Timing. The record for decision will be available only after the final administrative disposition of a case. Parties may seek to restrict access to any portion of the record under paragraph (b) of this section.

              § 719.21
              Payment of final assessment.
              (a) Time for payment. Full payment of the civil penalty must be made within 30 days of the effective date of the order or within such longer period of time as may be specified in the order. Payment shall be made in the manner specified in the NOVA.
              (b) Enforcement of order. The government party may, through the Attorney General, file suit in an appropriate district court if necessary to enforce compliance with a final order issued under the CWCR. This suit will include a claim for interest at current prevailing rates from the date payment was due or ordered.
              (c) Offsets. The amount of any civil penalty imposed by a final order may be deducted from any sum(s) owed by the United States to a respondent.

              § 719.22
              Reporting a violation.
              If a person learns that a violation of the Convention, the Act, or the CWCR has occurred or may occur, that person may notify: Office of Export Enforcement, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-4520, Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964.

            Pt. 720
            PART 720—DENIAL OF EXPORT PRIVILEGES

              Sec.
              720.1
              Denial of export privileges for convictions under 18 U.S.C. 229.
              720.2
              Initiation of administrative action denying export privileges.
              720.3
              Final decision on administrative action denying export privileges.
              720.4
              Effect of denial.

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 720.1
              Denial of export privileges for convictions under 18 U.S.C. 229.
              Any person in the United States or any U.S. national may be denied export privileges after notice and opportunity for hearing if that person has been convicted under Title 18, Section 229 of the United States Code of knowingly:
              (a) Developing, producing, otherwise acquiring, transferring directly or indirectly, receiving, stockpiling, retaining, owning, possessing, or using, or threatening to use, a chemical weapon; or
              (b) Assisting or inducing, in any way, any person to violate paragraph (a) of this section, or attempting or conspiring to violate paragraph (a) of this section.

              § 720.2
              Initiation of administrative action denying export privileges.
              (a) Notice. BIS will notify any person convicted under Section 229, Title 18, United States Code, of BIS's intent to deny that person's export privileges. The notification letter shall reference the person's conviction, specify the number of years for which BIS intends to deny export privileges, set forth the statutory and regulatory authority for the action, state whether the denial order will be standard or non-standard pursuant to supplement no. 1 to part 764 of the Export Administration Regulations (15 CFR parts 730 through 774), and provide that the person may request a hearing before the Administrative Law Judge within 30 days from the date of the notification letter.
              (b) Waiver. The failure of the notified person to file a request for a hearing within the time provided constitutes a waiver of the person's right to contest the denial of export privileges that BIS intends to impose.
              (c) Order of Assistant Secretary. If no hearing is requested, the Assistant Secretary for Export Enforcement will order that export privileges be denied as indicated in the notification letter.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

              § 720.3
              Final decision on administrative action denying export privileges.
              (a) Hearing. Any hearing that is granted by the ALJ shall be conducted in accordance with the procedures set forth in § 719.14 of the CWCR.
              (b) Initial decision and order. After considering the entire record in the proceeding, the ALJ will issue an initial decision and order, based on a preponderance of the evidence. The ALJ may consider factors such as the seriousness of the criminal offense that is the basis for conviction, the nature and duration of the criminal sanctions imposed, and whether the person has undertaken any corrective measures. The ALJ may dismiss the proceeding if the evidence is insufficient to sustain a denial of export privileges, or may issue an order imposing a denial of export privileges for the length of time the ALJ deems appropriate. An order denying export privileges may be standard or non-standard, as provided in supplement no. 1 to part 764 of the Export Administration Regulations (15 CFR parts 730 through 774). The initial decision and order will be served on each party, and will be published in the Federal Register as the final decision of BIS 30 days after service, unless an appeal is filed in accordance with paragraph (c) of this section.
              (c) Grounds for appeal. (1) A party may, within 30 days of the ALJ's initial decision and order, petition the Under Secretary, Bureau of Industry and Security, for review of the initial decision and order. A petition for review must be filed with the Office of Under Secretary, Bureau of Industry and Security, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, and shall be served on the Office of Chief Counsel for Industry and Security or on the respondent. Petitions for review may be filed only on one or more of the following grounds:
              (i) That a necessary finding of fact is omitted, erroneous or unsupported by substantial evidence of record;
              (ii) That a necessary legal conclusion or finding is contrary to law;
              (iii) That prejudicial procedural error occurred; or
              (iv) That the decision or the extent of sanctions is arbitrary, capricious or an abuse of discretion.

              (2) The appeal must specify the grounds on which the appeal is based and the provisions of the order from which the appeal was taken.
              (d) Appeal procedure. The Under Secretary, Bureau of Industry and Security, normally will not hold hearings or entertain oral arguments on appeals. A full written statement in support of the appeal must be filed with the appeal and be simultaneously served on all parties, who shall have 30 days from service to file a reply. At his/her discretion, the Under Secretary may accept new submissions, but will not ordinarily accept those submissions filed more than 30 days after the filing of the reply to the appellant's first submission.
              (e) Decisions. The Under Secretary's decision will be in writing and will be accompanied by an order signed by the Under Secretary, Bureau of Industry and Security, giving effect to the decision. The order may either dispose of the case by affirming, modifying or reversing the order of the ALJ, or may refer the case back to the ALJ for further proceedings. Any order that imposes a denial of export privileges will be published in the Federal Register.

              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

              § 720.4
              Effect of denial.

              Any person denied export privileges pursuant to this part shall be considered a “person denied export privileges” for purposes of the Export Administration Regulations (EAR) (15 CFR parts 730 through 774). Orders denying export privileges pursuant to Parts 764 and 766 of the EAR are published in the Federal Register when they are issued and are legally controlling documents in accordance with their terms. BIS maintains unofficial compilations of persons denied export privileges on its Web site.
              [71 FR 24929, Apr. 27, 2006, as amended at 73 FR 78183, Dec. 22, 2008]

            Pt. 721
            PART 721—INSPECTION OF RECORDS AND RECORDKEEPING

              Sec.
              721.1
              Inspection of records.
              721.2
              Recordkeeping.
              721.3
              Destruction or disposal of records.

              Authority:
              22 U.S.C. 6701 et seq.; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199.

              Source:
              71 FR 24929, Apr. 27, 2006, unless otherwise noted.

              § 721.1
              Inspection of records.
              Upon request by BIS or any other agency of competent jurisdiction, you must permit access to and copying of any record relating to compliance with the requirements of the CWCR. This requires that you make available the equipment and, if necessary, knowledgeable personnel for locating, reading, and reproducing any record.

              § 721.2
              Recordkeeping.
              (a) Requirements. Each person, facility, plant site or trading company required to submit a declaration, report, or advance notification under parts 712 through 715 of the CWCR must retain all supporting materials and documentation used by a unit, plant, facility, plant site or trading company to prepare such declaration, report, or advance notification to determine production, processing, consumption, export or import of chemicals. Each facility subject to inspection under Part 716 of the CWCR must retain all supporting materials and documentation associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock. In the event that a declared facility is sold, the previous owner of the facility must retain all such supporting materials and documentation that were not transferred to the current owner of the facility (e.g., as part of the contract involving the sale of the facility)—otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation. Whenever the previous owner of a declared facility retains such supporting materials and documentation, the owner must inform BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to inspection activities involving the facility (see § 716.4 of the CWCR).

              (b) Five year retention period. All supporting materials and documentation required to be kept under paragraph (a) of this section must be retained for five years from the due date of the applicable declaration, report, or advance notification, or for five years from the date of submission of the applicable declaration, report or advance notification, whichever is later. Due dates for declarations, reports and advance notifications are provided in parts 712 through 715 of the CWCR.
              (c) Location of records. If a facility is subject to inspection under part 716 of the CWCR, records retained under this section must be maintained at the facility or must be accessible electronically at the facility for purposes of inspection of the facility by Inspection Teams. If a facility is not subject to inspection under part 716 of the CWCR, records retained under this section may be maintained either at the facility subject to a declaration, report, or advance notification requirement, or at a remote location, but all records must be accessible to any authorized agent, official or employee of the U.S. Government under § 721.1 of the CWCR.
              (d) Reproduction of original records. (1) You may maintain reproductions instead of the original records provided all of the requirements of paragraph (b) of this section are met.
              (2) If you must maintain records under this part, you may use any photostatic, miniature photographic, micrographic, automated archival storage, or other process that completely, accurately, legibly and durably reproduces the original records (whether on paper, microfilm, or through electronic digital storage techniques). The process must meet all of the following requirements, which are applicable to all systems:
              (i) The system must be capable of reproducing all records on paper.
              (ii) The system must record and be able to reproduce all marks, information, and other characteristics of the original record, including both obverse and reverse sides (unless blank) of paper documents in legible form.
              (iii) When displayed on a viewer, monitor, or reproduced on paper, the records must exhibit a high degree of legibility and readability. For purposes of this section, legible and legibility mean the quality of a letter or numeral that enable the observer to identify it positively and quickly to the exclusion of all other letters or numerals. Readable and readability mean the quality of a group of letters or numerals being recognized as complete words or numbers.
              (iv) The system must preserve the initial image (including both obverse and reverse sides, unless blank, of paper documents) and record all changes, who made them and when they were made. This information must be stored in such a manner that none of it may be altered once it is initially recorded.
              (v) You must establish written procedures to identify the individuals who are responsible for the operation, use and maintenance of the system.
              (vi) You must keep a record of where, when, by whom, and on what equipment the records and other information were entered into the system.
              (3) Requirements applicable to a system based on digital images. For systems based on the storage of digital images, the system must provide accessibility to any digital image in the system. The system must be able to locate and reproduce all records according to the same criteria that would have been used to organize the records had they been maintained in original form.
              (4) Requirements applicable to a system based on photographic processes. For systems based on photographic, photostatic, or miniature photographic processes, the records must be maintained according to an index of all records in the system following the same criteria that would have been used to organize the records had they been maintained in original form.
              [71 FR 24929, Apr. 27, 2006, as amended at 72 FR 14410, Mar. 28, 2007]

              § 721.3
              Destruction or disposal of records.

              If BIS or other authorized U.S. government agency makes a formal or informal request for a certain record or records, such record or records may not be destroyed or disposed of without the written authorization of the requesting entity.

            PART 722—INTERPRETATIONS [RESERVED]

              Note:
              This part is reserved for interpretations of parts 710 through 721 and also for applicability of decisions by the Organization for the Prohibition of Chemical Weapons (OPCW).

            PARTS 723-729 [RESERVED]

          SUBCHAPTER C—EXPORT ADMINISTRATION REGULATIONS

            Pt. 730
            PART 730—GENERAL INFORMATION

              Sec.
              730.1
              What these regulations cover.
              730.2
              Statutory authority.
              730.3
              “Dual use” and other types of items subject to the EAR.
              730.4
              Other control agencies and departments.
              730.5
              Coverage of more than exports.
              730.6
              Control purposes.
              730.7
              License requirements and exceptions.
              730.8
              How to proceed and where to get help.
              730.9
              Organization of the Bureau of Industry and Security.
              730.10
              Advisory information.
              Supplement No. 1 to Part 730—Information Collection Requirements Under the Paperwork Reduction Act: OMB Control Numbers
              Supplement No. 2 to Part 730—Technical Advisory Committees
              Supplement No. 3 to Part 730—Other U.S. Government Departments and Agencies With Export Control Responsibilities

              Authority:
              50 U.S.C. 4601 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; 42 U.S.C. 2139a; 15 U.S.C. 1824a; 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. 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, 3 CFR, 2004 Comp., p 168; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice of September 15, 2016, 81 FR 64343 (September 19, 2016); Notice of November 8, 2016, 81 FR 79379 (November 10, 2016); Notice of January 13, 2017, 82 FR 6165 (January 18, 2017); Notice of May 9, 2017, 82 FR 21909 (May 10, 2017); Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).

              Source:
              61 FR 12734, Mar. 25, 1996, unless otherwise noted.

              § 730.1
              What these regulations cover.
              In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C. The EAR are issued by the United States Department of Commerce, Bureau of Industry and Security (BIS) under laws relating to the control of certain exports, reexports, and activities. In addition, the EAR implement antiboycott law provisions requiring regulations to prohibit specified conduct by United States persons that has the effect of furthering or supporting boycotts fostered or imposed by a country against a country friendly to United States. Supplement no. 1 to part 730 lists the control numbers assigned to information collection requirements under the EAR by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995.

              § 730.2
              Statutory authority.

              The EAR have been designed primarily to implement the Export Administration Act of 1979, as amended, 50 U.S.C. app. 2401-2420 (EAA). There are numerous other legal authorities underlying the EAR. These are listed in the Federal Register documents promulgating the EAR and at the beginning of each part of the EAR in the Code of Federal Regulations (CFR). From time to time, the President has exercised authority under the International Emergency Economic Powers Act with respect to the EAR (50 U.S.C. 1701-1706 (IEEPA)). The EAA is not permanent legislation, and when it has lapsed, Presidential executive orders under IEEPA have directed and authorized the continuation in force of the EAR.

              § 730.3
              “Dual use” and other types of items subject to the EAR.

              The term “dual use” is often used to describe the types of items subject to the EAR. A “dual-use” item is one that has civil applications as well as terrorism and military or weapons of mass destruction (WMD)-related applications. The precise description of what is “subject to the EAR” is in § 734.3, which does not limit the EAR to controlling only dual-use items. In essence, the EAR control any item warranting control that is not exclusively controlled for export, reexport, or transfer (in-country) by another agency of the U.S. Government or otherwise excluded from being subject to the EAR pursuant to § 734.3(b) of the EAR. Thus, items subject to the EAR include purely civilian items, items with both civil and military, terrorism or potential WMD-related applications, and items that are exclusively used for military applications but that do not warrant control under the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 et seq.).
              [78 FR 22705, Apr. 16, 2013]

              § 730.4
              Other control agencies and departments.
              In addition to the departments and agencies mentioned in § 730.3 of this part, other departments and agencies have jurisdiction over certain narrower classes of exports and reexports. These include the Department of Treasury's Office of Foreign Assets Control (OFAC), which administers controls against certain countries that are the object of sanctions affecting not only exports and reexports, but also imports and financial dealings. For your convenience, supplement no. 3 to part 730 identifies other departments and agencies with regulatory jurisdiction over certain types of exports and reexports. This is not a comprehensive list, and the brief descriptions are only generally indicative of the types of controls administered and/or enforced by each agency.

              § 730.5
              Coverage of more than exports.
              The core of the export control provisions of the EAR concerns exports from the United States. You will find, however, that some provisions give broad meaning to the term “export”, apply to transactions outside of the United States, or apply to activities other than exports.
              (a) Reexports. Commodities, software, and technology that have been exported from the United States are generally subject to the EAR with respect to reexport. Many such reexports, however, may go to many destinations without a license or will qualify for an exception from licensing requirements.
              (b) Foreign products. In some cases, authorization to export technology from the United States will be subject to assurances that items produced abroad that are the direct product of that technology will not be exported to certain destinations without authorization from BIS.
              (c) Scope of “exports”. Certain actions that you might not regard as an “export” in other contexts do constitute an export subject to the EAR. The release of technology to a foreign national in the United States through such means as demonstration or oral briefing is deemed an export. Other examples of exports under the EAR include the return of foreign equipment to its country of origin after repair in the United States, shipments from a U.S. foreign trade zone, and the electronic transmission of non-public data that will be received abroad.
              (d) U.S. person activities. To counter the proliferation of weapons of mass destruction, the EAR restrict the involvement of “United States persons” anywhere in the world in exports of foreign-origin items, or in providing services or support, that may contribute to such proliferation.
              [61 FR 12734, Mar. 25, 1996, as amended at 61 FR 68577, Dec. 30, 1996; 74 FR 52882, Oct. 15, 2009]

              § 730.6
              Control purposes.

              The export control provisions of the EAR are intended to serve the national security, foreign policy, nonproliferation of weapons of mass destruction, and other interests of the United States, which in many cases are reflected in international obligations or arrangements. Some controls are designed to restrict access to items subject to the EAR by countries or persons that might apply such items to uses inimical to U.S. interests. These include controls designed to stem the proliferation of weapons of mass destruction and controls designed to limit the military and terrorism support capability of certain countries. The effectiveness of many of the controls under the EAR is enhanced by their being maintained as part of multilateral control arrangements. Multilateral export control cooperation is sought through arrangements such as the Nuclear Suppliers Group, the Australia Group, and the Missile Technology Control Regime. The EAR also include some export controls to protect the United States from the adverse impact of the unrestricted export of commodities in short supply.
              [61 FR 12734, Mar. 25, 1996, as amended at 78 FR 22705, Apr. 16, 2013]

              § 730.7
              License requirements and exceptions.
              A relatively small percentage of exports and reexports subject to the EAR require an application to BIS for a license. Many items are not on the Commerce Control List (CCL) (supplement no. 1 to § 774.1 of the EAR), or, if on the CCL, require a license to only a limited number of countries. Other transactions may be covered by one or more of the License Exceptions in the EAR. In such cases no application need be made to BIS.

              § 730.8
              How to proceed and where to get help.
              (a) How the EAR are organized. The Export Administration Regulations (EAR) are structured in a logical manner. In dealing with the EAR you may find it helpful to be aware of the overall organization of these regulations. In order to determine what the rules are and what you need to do, review the titles and the introductory sections of the parts of the EAR.
              (1) How do you go about determining your obligations under the EAR? Part 732 of the EAR provides steps you may follow to determine your obligations under the EAR. You will find guidance to enable you to tell whether or not your transaction is subject to the EAR and, if it is, whether it qualifies for a License Exception or must be authorized through issuance of a license.
              (2) Are your items or activities subject to the EAR at all? Part 734 of the EAR defines the items and activities that are subject to the EAR. Note that the definition of “items subject to the EAR” includes, but is not limited to, items listed on the Commerce Control List in part 774 of the EAR.
              (3) If subject to the EAR, what do the EAR require? Part 736 of the EAR lists all the prohibitions that are contained in the EAR. Note that certain prohibitions (General Prohibitions One through Three) apply to items as indicated on the CCL, and others (General Prohibitions Four through Ten) prohibit certain activities and apply to all items subject to the EAR unless otherwise indicated.
              (4) Do you need a license for your item or activity? What policies will BIS apply if you do need to submit license application? The EAR have four principal ways of describing license requirements:
              (i) The EAR may require a license to a country if your item is listed on the CCL and the Country Chart in part 738 of the EAR tells that a license is required to that country. Virtually all Export Control Classification Numbers (ECCN) on the CCL are covered by the Country Chart in part 738 of the EAR. That part identifies the limited number of entries that are not included on the Chart. These ECCNs will state the specific countries that require a license or refer you to a self-contained section, i.e., Short Supply in part 754 of the EAR, or Embargoes in part 746 of the EAR. If a license is required, you should consult part 740 of the EAR which describes the License Exception that may be available for items on the CCL. Part 742 of the EAR describes the licensing policies that BIS will apply in reviewing an application you file. Note that part 754 of the EAR on short supply controls and part 746 on embargoes are self-contained parts that include the available exceptions and licensing policy.
              (ii) A license requirement may be based on the end-use or end-user in a transaction, primarily for proliferation reasons. Part 744 of the EAR describes such requirements and relevant licensing policies and includes both restrictions on items and restrictions on the activities of U.S. persons.

              (iii) A license is required for virtually all exports to embargoed destinations, such as Cuba. Part 746 of the EAR describes all the licensing requirements, license review policies and License Exceptions that apply to such destinations. If your transaction involves one of these countries, you should first look at this part. This part also describes controls that may be maintained under the EAR to implement UN sanctions.
              (iv) In addition, under §§ 736.2(b)(9) and (10) of the EAR, you may not engage in a transaction knowing a violation is about to occur or violate any orders, terms, and conditions under the EAR. Part 764 of the EAR describes prohibited transactions with a person denied export privileges or activity that violates the terms or conditions of a denial order.
              (5) How do you file a license application and what will happen to the application once you do file it? What if you need authorization for multiple transactions? Parts 748 and 750 of the EAR provide information on license submission and processing. If your application is denied, part 756 of the EAR provides rules for filing appeals.
              (6) How do you clear shipments with the U.S. Customs Service? Part 758 of the EAR describes the requirements for clearance of exports.
              (7) Where do you find the rules on restrictive trade practices and boycotts? Part 760 of the EAR deals with restrictive trade practices and boycotts.
              (8) Where are the rules on recordkeeping and enforcement? Part 762 of the EAR sets out your recordkeeping requirements, and parts 764 and 766 of the EAR deal with violations and enforcement proceedings.
              (9) What is the effect of foreign availability? Part 768 of the EAR provides rules for determining foreign availability of items subject to controls.
              (10) Do the EAR provide definitions and interpretations? Part 770 of the EAR contains interpretations and part 772 of the EAR lists definitions used.
              (b) Why the EAR are so detailed. Some people will find the great length of the EAR and their extensive use of technical terms intimidating. BIS believes, however, that such detail and precision can and does serve the interests of the public. The detailed listing of technical parameters in the CCL establishes precise, objective criteria. This should, in most cases, enable you to ascertain the appropriate control status. Broader, more subjective criteria would leave exporters and reexporters more dependent upon interpretations and rulings by BIS officials. Moreover, much of the detail in the CCL is derived from multilaterally adopted lists, and the specificity serves to enhance the uniformity and effectiveness of international control practices and to promote a “level playing field”. The detailed presentation of such elements as licensing and export clearance procedures enables you to find in one place what you need to know to comply with pertinent requirements. Of special importance is the detailed listing of License Exception criteria, as these will enable you to determine quickly, and with confidence, that you may proceed with a transaction without delay. Finally, some of the detail results from the need to draft the EAR with care in order to avoid loop-holes and to permit effective enforcement.
              (c) Where to get help. Throughout the EAR you will find information on offices you can contact for various purposes and types of information. General information including assistance in understanding the EAR, information on how to obtain forms, electronic services, publications, and information on training programs offered by BIS, is available from the Office of Export Services at the following locations: Outreach and Educational Services Division, U.S. Department of Commerce, 14th and Pennsylvania Avenue, NW., Room H1099D, Washington, DC 20230, Tel: (202) 482-4811, Fax: (202) 482-2927, and Bureau of Industry and Security, Western Regional Office, U.S. Department of Commerce, 2302 Martin St., Suite 330, Irvine, CA 92612, Tel: (949) 660-0144, Fax: (949) 660-9347, and Bureau of Industry and Security, Western Regional Office, Northern California Branch, U.S. Department of Commerce, 160 W. Santa Clara Street, Suite 725, San Jose, CA 95113, Tel: (408) 998-8806, Fax: (408) 998-8677.
              [61 FR 12734, Mar. 25, 1996, as amended at 69 FR 5687, Feb. 6, 2004; 70 FR 14386, Mar. 22, 2005; 70 FR 22249, Apr. 29, 2005; 72 FR 3945, Jan. 29, 2007; 73 FR 35, Jan. 2, 2008; 73 FR 75944, Dec. 15, 2008; 76 FR 40604, July 11, 2011; 80 FR 51729, Aug. 26, 2015]

              § 730.9
              Organization of the Bureau of Industry and Security.

              The head of the Bureau of Industry and Security is the Under Secretary for Industry and Security. The Under Secretary is assisted by a Deputy Under Secretary for Industry and Security, the Assistant Secretary for Export Administration, the Assistant Secretary for Export Enforcement, the Director of Administration, the Director of the Office of Congressional and Public Affairs, and the Chief Information Officer. The functions and authorities of the Under Secretary are described in the Department's Organizational Order 10-16. The Department's organizational and administrative orders are available via Office of Management and Organization's Web page on the Department's Web site at http://www.osec.doc.gov/omo/DMPHome.htm. The principal functions of the Bureau that directly affect the public are carried out by two units: Export Administration and Export Enforcement.

              (a) Export Administration is headed by the Assistant Secretary for Export Administration, who is assisted by a Deputy Assistant Secretary. Its substantive work is carried out by six sub-units: the Office of Nonproliferation and Treaty Compliance, the Office of National Security and Technology Transfer Controls, the Office of Exporter Services, the Operating Committee, the Office of Strategic Industries and Economic Security, and the Office of Technology Evaluation. The functions of the Operating Committee are described in § 750.4(f)(1) of the EAR. The roles of the other units are described on BIS's Web site at http://www.bis.doc.gov/about/programoffices.htm.

              (b) Export Enforcement is headed by the Assistant Secretary for Export Enforcement who is assisted by a Deputy Assistant Secretary. Its substantive work is carried out by three sub-units: the Office of Export Enforcement, the Office of Enforcement Analysis and the Office of Antiboycott Compliance. The roles of these units are described on BIS's Web site at http://www.bis.doc.gov/about/programoffices.htm.

              (c) BIS is also assisted in its work by six technical advisory committees. The procedures and criteria for establishing and operating the technical advisory committees is at supplement No. 2 to this part. Information about the specific roles of each committee, meeting schedules, and membership selection is available on BIS's Web site at http://tac.bis.doc.gov/.

              [70 FR 8248, Feb. 18, 2005, as amended at 72 FR 25196, May 4, 2007]

              § 730.10
              Advisory information.
              The general information in this part is just that—general. To achieve brevity, so as to give you a quick overview, the information in this part is selective, incomplete, and not expressed with regulatory precision. The controlling language is the language of succeeding parts of the EAR and of any other laws or regulations referred to or applicable. The content of this part is not to be construed as modifying or interpreting any other language or as in any way, limiting the authority of BIS, any of its components or any other government department or agency. You should not take any action based solely on what you read in this part.

              Pt. 730, Supp. No. 1
              Supplement No. 1 to Part 730—Information Collection Requirements Under the Paperwork Reduction Act: OMB Control Numbers
              This supplement lists the control numbers assigned to the information collection requirements for the Bureau of Industry and Security by the Office of Management and Budget (OMB), pursuant to the Paperwork Reduction Act of 1995. This supplement complies with the requirements of section 3506(c)(1)(B)(i) of the Paperwork Reduction Act requiring agencies to display current control numbers assigned by the Director of OMB for each agency information collection requirement.

                  Collection number
                  Title
                  Reference in the EAR

                  0694-0004
                  Foreign Availability Procedures and Criteria
                  part 768.

                  0694-0009
                  Approval of Triangular Transactions Involving Commodities Covered by a U.S. Import Certificate
                  § 748.10(e).

                  0694-0012
                  Report of Requests for Restrictive Trade Practice or Boycott—Single or Multiple Transactions
                  part 760 and § 762.2(b).

                  0694-0013
                  Computers and Related Equipment EAR Supplement 2 to Part 748
                  part 774.

                  0694-0016
                  Delivery Verification Certificate
                  §§ 748.13 and 762.2(b).

                  0694-0017
                  International Import Certificate
                  § 748.10

                  0694-0021
                  Statement by Ultimate Consignee and Purchaser
                  §§ 748.11 and 762.2(b).

                  0694-0026
                  Short Supply Regulations—Petroleum Products
                  § 754.3.

                  0694-0047
                  Technology Letter of Explanation
                  Supplement No. 2 to part 748, paragraph (o)(2).

                  0694-0058
                  Procedure for Voluntary Self-Disclosure of Violations
                  §§ 762.2(b) and 764.5.

                  0694-0073
                  Export Controls of High Performance Computers
                  Supplement No. 2 to part 748, paragraph (c)(2), and § 762.2(b).

                  0694-0088
                  Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application
                  Parts 746 and 748, and § 762.2(b).

                  0694-0093
                  Import Certificates And End-User Certificates
                  §§ 748.9, 748.10, 762.5(d), 762.6 764.2(g)(2).

                  0694-0096
                  Five Year Records Retention Period
                  part 760, § 762.6(a).

                  0694-0100
                  Requests for Appointment of Technical Advisory Committee
                  Supplement No. 1 to part 730.

                  0694-0102
                  Registration of U.S. Agricultural Commodities For Exemption From Short Supply Limitations on Export, and Petitions For The Imposition of Monitoring Or Controls On Recyclable Metallic Materials; Public Hearings
                  §§ 754.6 and 754.7.

                  0694-0107
                  National Defense Authorization Act (NDAA)
                  §§ 740.7, 742.12.

                  0694-0117
                  Chemical Weapons Convention Provisions of the Export Administration Regulations (Schedule 1 Advance Notifications and Reports and Schedule 3 End-use Certificates)
                  Part 745.

                  0694-0122
                  Licensing Responsibilities and Enforcement
                  §§ 744.15(b) and 748.4 and Part 758.

                  0694-0125
                  BIS Seminar Evaluation
                  N/A

                  0694-0126
                  Export License Services—Transfer of License Ownership, Requests for a Duplicate License
                  § 750.9.

                  0694-0129
                  Export and Reexport Controls For Iraq
                  §§ 732.3, 738, 744.18, 746.3(b)(1), 750, 758, 762, 772, 774.

                  0694-0132
                  Voluntary Self-Disclosure of Antiboycott Violations
                  § 764.8.

                  0694-0134
                  Procedure for parties on the Entity List or the Unverified List to Request Removal or Modification of their Listing
                  §§ 744.15 and 744.16

                  0694-0137
                  License Exceptions and Exclusions
                  § 734.4, Supplement No. 2 to part 734, §§ 740.3(d), 740.4(c), 740.9(a)(2)(viii)(B), 740.9(c), 740.12(b)(7), 740.17, 740.18, Supp. No. 2 to part 740, §§ 742.15, 743.1, 743.3, 754.4, 762.2(b) and Supplement No. 1 to part 774.

                  0607-0152
                  Automated Export System (AES) Program
                  §§ 740.1(d), 740.3(a)(3), 754.4(c), 758.1, 758.2, and 758.3 of the EAR.

              [61 FR 12734, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting supplement no. 1 to part 730, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              Pt. 730, Supp. No. 2
              Supplement No. 2 to Part 730—Technical Advisory Committees
              (a) Purpose. The purpose of this supplement is to describe the procedures and criteria for the establishment and operation of Technical Advisory Committees.
              (b) Technical advisory committees. Any producer of articles, materials, or supplies, including technology, software, and other information, that are subject to export controls, or are being considered for such controls because of their significance to the national security of the United States, may request the Secretary of Commerce to establish a technical advisory committee, under the provisions of section 5(h) of the Export Administration Act of 1979, as amended (EAA) to advise and assist the Department of Commerce and other appropriate U.S. Government agencies or officials with respect to questions involving technical matters; worldwide availability and actual utilization of production technology; licensing procedures that affect the level of export controls applicable to a clearly defined grouping of articles, materials, or supplies, including technology, software, or other information; and exports and reexports subject to all controls that the United States maintains including proposed revisions of any such controls. If producers of articles, materials, or supplies, including technology, software, and other information, that are subject to export controls because of their significance to the national security of the United States, wish a trade association or other representative to submit a written request on their behalf for the appointment to a TAC, such request shall be submitted in accordance with paragraph (b)(4) of this supplement.
              (1) Form and substance of requests. Each request for the appointment of a TAC shall be submitted in writing to: Assistant Secretary for Export Administration, 14th Street and Pennsylvania Ave., NW., Room 2099B, Washington, DC 20230.
              The request shall include:
              (i) A description of the articles, materials, or supplies including technology and software, in terms of a clear, cohesive grouping (citing the applicable Export Control Classification Numbers where practical);
              (ii) A statement of the reasons for requesting the appointment of a TAC; and
              (iii) Any information in support of any contention that may be made that the request meets the criteria described in paragraph (b)(2) of this supplement.
              (2) Consideration of request for establishment of a TAC. The Department of Commerce will review all requests for the establishment of a TAC to determine if the following criteria are met:
              (i) That a substantial segment of the industry producing the specified articles, materials, or supplies including technology desires such a committee; and
              (ii) That the evaluation of such articles, materials, or supplies including technology and software for export control purposes is difficult because of questions involving technical matters, worldwide availability and actual utilization of production and software technology, or licensing procedures.
              (3) Requests by a substantial segment of an industry. In determining whether or not a substantial segment of any industry has requested the appointment of a TAC, the Department of Commerce will consider:
              (i) The number of persons or firms requesting the establishment of a TAC for a particular grouping of commodities, software and technology in relation to the total number of U.S. producers of such items; and
              (ii) The volume of annual production by such persons or firms of each item in the grouping in relation to the total U.S. production. Generally, a substantial segment of an industry (for purposes of this supplement) shall consist of:
              (A) Not less than 30 percent of the total number of U.S. producers of the items concerned; or
              (B) Three or more U.S. producers who produce a combined total of not less than 30 percent of the total U.S. annual production, by dollar value of the items concerned; or
              (C) Not less than 20 percent of the total number of U.S. producers of the items concerned, provided that the total of their annual production thereof is not less than 20 percent of the total U.S. annual production, by dollar value.
              (iii) If it is determined that a substantial segment of the industry concerned has requested the establishment of a TAC concerning a specific grouping of items that the Department of Commerce determines difficult to evaluate for export control purposes, BIS will establish and use the TAC requested.
              (4) Requests from trade associations or other representatives. Requests from trade associations or other representatives of U.S. producers for the establishment of a TAC must comply with the provisions of paragraphs (b) (1) through (3) of this supplement. In addition, in order to assist BIS in determining whether the criteria described in paragraph (b)(3) of this supplement have been met, a trade association or other representative submitting a request for the establishment of a TAC should include the following information:
              (i) The total number of firms in the particular industry;
              (ii) The total number of firms in the industry that have authorized the trade association or other representative to act in their behalf in this matter;
              (iii) The approximate amount of total U.S. annual production by dollar value of the items concerned produced by those firms that have authorized the trade association or other representative to act in their behalf; and
              (iv) A description of the method by which authorization to act on behalf of these producers was obtained.
              (5) Nominations for membership on TACs. When the Department of Commerce determines that the establishment of a TAC is warranted, it will request nominations for membership on the committee among the producers of the items and from any other sources that may be able to suggest well-qualified nominees.
              (6) Selection of industry members of committee. Industry members of a TAC will be selected by the Department of Commerce from a list of the nominees who have indicated their availability for service on the committee. To the extent feasible, the Department of Commerce will select a committee balanced to represent all significant facets of the industry involved, taking into consideration such factors as the size of the firms, their geographical distribution, and their product lines. No industry representative shall serve on a TAC for more than four consecutive years. The membership of a member who is absent from four consecutive meetings shall be terminated.

              (7) Government members. Government members of a TAC will be selected by the Department of Commerce from the agencies having an interest in the subject matter concerned.
              (8) Invitation to serve on committee. Invitations to serve on a TAC will be sent by letter to the selected nominees.
              (9) Election of Chair. The Chair of each TAC shall be elected by a vote of the majority of the members of the committee present and voting.
              (c) Charter. (1) No TAC established pursuant to this supplement shall meet or take any action until an advisory committee charter has been filed with the Assistant Secretary for Export Administration of the Department of Commerce and with the standing committees of the Senate and of the House of Representatives having legislative jurisdiction over the Department. Such charter shall contain the following information:
              (i) The committee's official designation;
              (ii) The committee's objectives and the scope of its activities;
              (iii) The period of time necessary for the committee to carry out its purposes;
              (iv) The agency or official to whom the committee reports;
              (v) The agency responsible for providing the necessary support for the committee;
              (vi) A description of the duties for which the committee is responsible, and, if such duties are not solely advisory, a specification of the authority for such functions;
              (vii) The estimated annual operating costs in dollars and years for such committee;
              (viii) The estimated number and frequency of committee meetings;
              (ix) The committee's termination date, if less than two years from the date of the committee's establishment; and
              (x) The date the charter is filed.
              (d) Meetings. (1) Each TAC established under the provisions of the EAA and paragraph (b) of this supplement shall meet at least once every three months at the call of its Chair unless it is specifically determined by the Chair, in consultation with other members of the committee, that a particular meeting is not necessary.
              (2) No TAC may meet except at the call of its Chair.
              (3) Each meeting of a TAC shall be conducted in accordance with an agenda approved by a designated Federal government employee.
              (4) No TAC shall conduct a meeting in the absence of a designated Federal government employee who shall be authorized to adjourn any advisory committee meeting, whenever the Federal government employee determines adjournment to be in the public interest.
              (e) Public notice. Notice to the public of each meeting of a TAC will be issued at least 20 days in advance and will be published in the Federal Register. The notice will include the time and place of the meeting and the agenda.
              (f) Public attendance and participation. (1) Any member of the public who wishes to do so may file a written statement with any TAC before or after any meeting of a committee.
              (2) A request for an opportunity to deliver an oral statement relevant to matters on the agenda of a meeting of a TAC will be granted to the extent that the time available for the meeting permits. A committee may establish procedures requiring such persons to obtain advance approval for such participation.
              (3) Attendance at meetings of TACs will be open to the public unless it is determined pursuant to section 10(d) of the Federal Advisory Committee Act to be necessary to close all, or some portion, of the meeting to the public. A determination that a meeting or portion thereof be closed to the public may be made if all or a specific portion of a meeting of a TAC is concerned with matters described in section 552(b) of Title 5, U.S.C.
              (4) Participation by members of the public in open TAC meetings or questioning of committee members or other participants shall not be permitted except in accordance with procedures established by the committee.
              (5) Every effort will be made to accommodate all members of the public who wish to attend.
              (g) Minutes. (1) Detailed minutes of each meeting of each TAC will be kept and will contain a record of the persons present, a complete and accurate description of the matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the TAC.
              (2) The accuracy of all the minutes will be certified to by the TAC Chair.
              (h) Records. (1) Subject to section 552 of Title 5, U.S.C. and Department of Commerce Administrative Order 205-12, “Public Information,” and “Public Information” regulations issued by the Department of Commerce that are contained in 15 CFR part 4, Subtitle A, the records, reports, transcripts, minutes, appendices, working papers, draft, studies, agenda, or other documents that were made available to or prepared for or by each TAC will be available for public inspection and copying.
              (2) Each TAC will prepare once each year a report describing its membership, functions, activities, and such related matters as would be informative to the public consistent with the policy of section 552(b) of Title 5, U.S.C.
              (3)(i) Requests for records should be addressed to: Bureau of Industry and Security, Freedom of Information, Records Inspection Facility, U.S. Department of Commerce, Room 4513, Washington, DC 20230, Telephone (202) 482-2593.

              (ii) Rules concerning the use of the Records Inspection Facility are contained in 15 CFR part 4, Subtitle A, or may be obtained from this facility.
              (i) Compensation. If the Department of Commerce deems it appropriate, a member of a TAC may be reimbursed for travel, subsistence, and other necessary expenses incurred in connection with the member's duties.
              (j) Scope of advisory committee functions. All TACs are limited to the functions described in their charters.
              (k) Duration of committees. Each TAC will terminate at the end of two years from the date the committee was established or two years from the effective date of its most recent extension, whichever is later. Committees may be continued only for successive two-year periods by appropriate action taken by the authorized officer of the Department of Commerce prior to the date on which such advisory committee would otherwise terminate. TACs may be extended or terminated only after consultation with the committee.
              (l) Miscellaneous. (1) TACs established in accordance with paragraph (b) of this supplement must conform to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463), Office of Management and Budget Circular A-63 (Revision of March 1974), “Advisory Committee Management,” Department of Commerce Administrative Order 205-12, “Public Information,” the applicable provisions of the EAA, and any other applicable Department of Commerce regulations or procedures affecting the establishment or operation of advisory committees.
              (2) Whenever the Department of Commerce desires the advice or assistance of a particular segment of an industry with respect to any export control problem for which the service of a TAC, as described in paragraph (b) of this supplement is either unavailable or impracticable, an advisory committee may be established pursuant to the provisions of section 9 of the Federal Advisory Committee Act. Such committees will be subject to the requirements of the Federal Advisory Committee Act, OMB Circular A-63 (Revision of March 1974), “Advisory Committee Management,” Department of Commerce Administrative Order 205-12, “Public Information,” and any other applicable Department of Commerce regulations or procedures affecting the establishment or operation of advisory committees.
              (3) Nothing in the provisions of this supplement shall be construed to restrict in any manner the right of any person or firm to discuss any export control matter with the Department of Commerce or to offer advice or information on export control matters. Similarly, nothing in these provisions shall be construed to restrict the Department of Commerce in consulting any person or firm relative to any export control matter.
              [61 FR 12734, Mar. 25, 1996, as amended at 73 FR 35, Jan. 2, 2008; 73 FR 75945, Dec. 15, 2008; 78 FR 13468, Feb. 28, 2013]

              Pt. 730, Supp. No. 3
              Supplement No. 3 to Part 730—Other U.S. Government Departments and Agencies With Export Control Responsibilities

                Note:
                The departments and agencies identified with an asterisk control exports for foreign policy or national security reasons and, in certain cases, such controls may overlap with the controls described in the EAR (see part 734 of the EAR).

              Defense Services and Defense Articles

              *Department of State, Directorate of Defense Trade Controls, Tel. (202) 663-2700, Fax: (202) 261-8695, Internet: http://www.pmddtc.state.gov/index.html.

              22 CFR parts 120 through 130.
              Drugs, Chemicals and Precursors

              Chemicals: Drug Enforcement Administration, Office of Diversion Control, Import-Export Unit, Tel. (202) 307-4916, Fax: 202-307-4702, Internet: http://www.deadiversion.usdoj.gov/imp_exp/index.html.

              21 CFR Parts 1311 Through 1313

              Controlled Substances: Drug Enforcement Administration, Office of Diversion Control, Import-Export Unit, Tel. (202) 307-7182 or (202) 307-7181, Fax: (202) 307-7503, Internet: http://www.deadiversion.usdoj.gov/imp_exp/index.html.

              21 CFR Parts 1311 Through 1313
              Drugs and Biologics: Food and Drug Administration, Import/Export, Tel. (301) 594-3150, Fax: (301) 594-0165.
              21 U.S.C. 301 et seq .
              Investigational drugs permitted: Food and Drug Administration, International Affairs, Tel. (301) 443-4480, Fax: (301) 443-0235.
              21 CFR 312.1106
              Fish and Wildlife Controls; Endangered Species
              Department of the Interior, Chief Office of Management Authority, Tel. (703) 358-2093, Fax: (703) 358-2280.
              50 CFR 17.21, 17.22, 17.31, 17.32.
              Foreign Assets and Transactions Controls
              * Department of Treasury, Office of Foreign Assets Control, Licensing, Tel. (202) 622-2480, Fax: (202) 622-1657.
              31 CFR parts 500 through 590.

              Medical Devices
              Food and Drug Administration, Office of Compliance, Tel. (301) 594-4699, Fax: (301) 594-4715.
              21 U.S.C. 301 et seq.

              Natural Gas and Electric Power
              Department of Energy, Office of Fuels Programs, Tel. (202) 586-9482, Fax: (202) 586-6050.
              10 CFR 205.300 through 205.379 and part 590.
              Nuclear Materials and Equipment
              * Nuclear Regulatory Commission, Office of International Programs, Tel. (301) 415-2344, Fax: (301) 415-2395.
              10 CFR part 110.
              Nuclear Technologies and Services Which Contribute to the Production of Special Nuclear Material (Snm). Technologies Covered Include Nuclear Reactors, Enrichment, Reprocessing, Fuel Fabrication, and Heavy Water Production.
              Department of Energy Office of Export Control Policy & Cooperation (NA-24) Tel. (202) 586-2331, Fax (202) 586-1348.
              10 CFR part 810.
              Ocean Freight Forwarders
              Federal Maritime Commission, Office of Freight Forwarders, Tel. (202) 523-5843, Fax: (202) 523-5830.
              46 CFR part 510.
              Patent Filing Data Sent Abroad
              * Department of Commerce, Patent and Trademark Office, Licensing and Review; Tel. (703) 308-1722, Fax: (703) 305-3603, 3604.
              37 CFR part 5.
              U.S. Flagged or U.S. Manufactured Vessels Over 1,000 Gross Tons
              U.S. Maritime Administration, Division of Vessel Transfer and Disposal, Tel. (202) 366-5821, Fax: (202) 366-3889.
              46 CFR part 221.
              [61 FR 12734, Mar. 25, 1996, as amended at 65 FR 38149, June 19, 2000; 69 FR 5687, Feb. 6, 2004; 72 FR 20222, Apr. 24, 2007; 78 FR 13468, Feb. 28, 2013]

            Pt. 732
            PART 732—STEPS FOR USING THE EAR

              Sec.
              732.1
              Steps overview.
              732.2
              Steps regarding scope of the EAR.
              732.3
              Steps regarding the ten general prohibitions.
              732.4
              Steps regarding License Exceptions.
              732.5
              Steps regarding Electronic Export Information (EEI) requirements, Destination Control Statements, and recordkeeping.
              732.6
              Steps for other requirements.
              Supplement No. 1 to Part 732—Export Control Decision Tree
              Supplement No. 2 to Part 732—Subject to the Ear?
              Supplement No. 3 to Part 732—BIS's “Know Your Customer” Guidance and Red Flags

              Authority:
              50 U.S.C. 4601 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 August 15, 2017, 82 FR 39005 (August 16, 2017).

              Source:
              61 FR 12740, Mar. 25, 1996, unless otherwise noted.

              § 732.1
              Steps overview.
              (a)(1) Introduction. In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part is intended to help you determine your obligations under the EAR by listing logical steps in §§ 732.2 through 732.5 of this part that you can take in reviewing these regulations. A flow chart describing these steps is contained in supplement no. 1 to part 732. By cross-references to the relevant provisions of the EAR, this part describes the suggested steps for you to determine applicability of the following:
              (i) The scope of the EAR (part 734 of the EAR);
              (ii) Each of the general prohibitions (part 736 of the EAR);
              (iii) The License Exceptions (part 740 of the EAR); and
              (iv) Other requirements such as clearing your export with the U.S. Customs Service, keeping records, and completing and documenting license applications.
              (2) These steps describe the organization of the EAR, the relationship among the provisions of the EAR, and the appropriate order for you to consider the various provisions of the EAR.

              (3) The general information in this part is intended to provide an overview of the steps to be taken for certain requirements in the EAR, though not all of them. Nothing in this part shall be construed as altering or affecting any other authority, regulation, investigation or other enforcement measure provided by or established under any other provision of federal law, including provisions of the EAR.
              (b) Facts about your transaction. The following five types of facts determine your obligations under the EAR and will be of help to you in reviewing these steps:
              (1) What is it? What an item is, for export control purposes, depends on its classification, which is its place on the Commerce Control List (see part 774 of the EAR).
              (2) Where is it going? The country of ultimate destination for an export or reexport also determines licensing requirements (see parts 738 and 774 of the EAR concerning the Country Chart and the Commerce Control List).
              (3) Who will receive it? The ultimate end-user of your item cannot be a bad end-user. See General Prohibition Four (Denial Orders) in § 736.2(b)(4) and parts 744 and 764 of the EAR for a reference to the list of persons you may not deal with.
              (4) What will they do with it? The ultimate end-use of your item cannot be a bad end-use. See General Prohibition Five (End-Use End-User) in § 736.2(b)(5) and part 744 of the EAR for general end-use and end-user restrictions.
              (5) What else do they do? Conduct such as contracting, financing, and freight forwarding in support of a proliferation project (as described in § 744.6 of the EAR) may prevent you from dealing with someone.
              (c) Are your items and activities subject to the EAR? You should first determine whether your commodity, software, or technology is subject to the EAR (see part 734 of the EAR concerning scope), and Steps 1 through 6 help you do that. For exports from the United States, only Steps 1 and 2 are relevant. If you already know that your item or activity is subject to the EAR, you should go on to consider the ten general prohibitions in part 736 of the EAR. If your item or activity is not subject to the EAR, you have no obligations under the EAR and may skip the remaining steps.
              (d) Does your item or activity require a license under one or more of the ten general prohibitions?—(1) Brief summary of the ten general prohibitions. The general prohibitions are found in part 736 of the EAR and referred to in these steps. They consist, very briefly, of the following:
              (i) General Prohibition One (Exports and Reexports): Export and reexport of controlled items to listed countries.

              (ii) General Prohibition Two (Parts and Components Reexports): Reexport and export from abroad of foreign-made items incorporating more than a de minimis amount of controlled U.S. content.
              (iii) General Prohibition Three (Foreign-produced Direct Product Reexports): Reexport and export from abroad of the foreign-produced direct product of U.S. technology and software.
              (iv) General Prohibition Four (Denial Orders): Engaging in actions prohibited by a denial order.
              (v) General Prohibition Five (End-Use End-User): Export or reexport to prohibited end uses or end users.
              (vi) General Prohibition Six (Embargo): Export or reexport to embargoed destinations.
              (vii) General Prohibition Seven (U.S. Person Proliferation Activity): Support of proliferation activities.
              (viii) General Prohibition Eight (In-Transit): In-transit shipments and items to be unladen from vessels and aircraft.
              (ix) General Prohibition Nine (Orders, Terms and Conditions): Violation of any orders, terms, or conditions.
              (x) General Prohibition Ten (Knowledge Violation to Occur): Proceeding with transactions with knowledge that a violation has occurred or is about to occur.
              (2) Controls on items on the Commerce Control List (CCL). If your item or activity is subject to the EAR, you should determine whether any one or more of the ten general prohibitions require a license for your export, reexport, or activity. Steps 7 through 11 refer to classification of your item on the Commerce Control List (CCL) (part 774 of the EAR) and how to use the Country Chart (supplement no. 1 to part 738 of the EAR) to determine whether a license is required based upon the classification of your item. These steps refer to General Prohibitions One (Exports and Reexports), Two (Parts and Components Reexports) , and Three (Foreign-Produced Direct Product Reexports) for all countries except: Cuba, Iran, North Korea, and Syria. For these countries, you may skip Steps 7 through 11 and go directly to Step 12.
              (3) Controls on activities. Steps 12 through 18 refer to General Prohibitions Four through Ten. Those general prohibitions apply to all items subject to the EAR, not merely those items listed on the CCL in part 774 of the EAR. For example, they refer to the general prohibitions for persons denied export privileges, prohibited end-uses and end-users, countries subject to a comprehensive embargo (e.g., Cuba, Iran, North Korea and Syria), prohibited activities of U.S. persons in support of proliferation of weapons of mass destruction, prohibited unlading of shipments, compliance with orders, terms and conditions, and activities when a violation has occurred or is about to occur.
              (4) General prohibitions. If none of the ten general prohibitions applies, you should skip the steps concerning License Exceptions and for exports from the United States, review Steps 27 through 29 concerning Shipper's Export Declarations to be filed with the U.S. Customs Service, Destination Control Statements for export control documents, and recordkeeping requirements.
              (e) Is a License Exception available to overcome the license requirement? If you decide by reviewing the CCL in combination with the Country Chart that a license is required for your destination, you should determine whether a License Exception will except you from that requirement. Steps 20 through 24 help you determine whether a License Exception is available. Note that generally License Exceptions are not available to overcome General Prohibitions Four through Ten. However, selected License Exceptions for embargoed destinations are specified in part 746 of the EAR and License Exceptions for short supply controls are specified in part 754 of the EAR. If a License Exception is available and the export is from the United States, you should review Steps 26 through 28 concerning Shipper's Export Declarations to be filed with the U.S. Customs Service, Destination Control Statements for export control documents and recordkeeping requirements. If a License Exception is not available, go on to Steps 25 through 29.
              (f) How do you apply for a license? If you must file a license application, you should review the requirements of part 748 of the EAR as suggested by Step 26. Then you should review Steps 27 through 29 concerning Shipper's Export Declarations to be filed with the U.S. Customs Service, Destination Control Statements for export control documents, and recordkeeping requirements.
              [61 FR 12740, Mar. 25, 1996, as amended at 62 FR 25453, May 9, 1997; 65 FR 38150, June 19, 2000; 69 FR 23628, Apr. 29, 2004; 69 FR 46074, July 30, 2004; 72 FR 3724, Jan. 26, 2007; 76 FR 77116, Dec. 12, 2011; 78 FR 22705, Apr. 16, 2013; 79 FR 77865, Dec. 29, 2014]

              § 732.2
              Steps regarding scope of the EAR.
              Steps 1 though 6 are designed to aid you in determining the scope of the EAR. A flow chart describing these steps is contained in supplement no. 2 to part 732.
              (a) Step 1: Items subject to the exclusive jurisdiction of another Federal agency. This step is relevant for both exports and reexports. Determine whether your item is subject to the exclusive jurisdiction of another Federal Agency as provided in § 734.3 of the EAR.
              (1) If your item is subject to the exclusive jurisdiction of another Federal agency, comply with the regulations of that agency. You need not comply with the EAR and may skip the remaining steps.
              (2) If your item is not subject to the exclusive jurisdiction of another federal agency, then proceed to Step 2 in paragraph (b) of this section.
              (b) Step 2: Publicly available technology and software. This step is relevant for both exports and reexports. Determine if your technology or software is publicly available as defined and explained at part 734 of the EAR. Supplement no. 1 to part 734 of the EAR contains several practical examples describing publicly available technology and software that are outside the scope of the EAR. The examples are illustrative, not comprehensive. Note that encryption software classified under ECCN 5D002 on the Commerce Control List (refer to supplement no.1 to Part 774 of the EAR) is subject to the EAR even if publicly available, except for publicly available encryption object code software classified under ECCN 5D002 when the corresponding source code meets the criteria specified in § 740.13(e) of the EAR.
              (1) If your technology or software is publicly available, and therefore outside the scope of the EAR, you may proceed with the export or reexport if you are not a U.S. person subject to General Prohibition Seven. If you are a U.S. person, go to Step 15 at § 732.3(j) of this part. If you are a U.S. person and General Prohibition Seven concerning proliferation activity of U.S. persons does not apply, then you may proceed with the export or reexport of your publicly available technology or software. Note that all U.S. persons are subject to the provisions of General Prohibition Seven.
              (2) If your technology or software is not publicly available and you are exporting from the United States, skip to the Step 7 in § 732.3(b) of this part concerning the general prohibitions.
              (3) If you are exporting items from a foreign country, you should then proceed to Step 3 in paragraph (c) of this section and the other steps concerning the scope of the EAR.
              (c) Step 3: Reexport of U.S.-origin items. This step is appropriate only for reexporters. For an item in a foreign country, you should determine whether the item is of U.S. origin. If it is of U.S.-origin, skip to Step 7 in § 732.3(b) of this part. If it is not of U.S. origin, then proceed to Step 4 in paragraph (d) of this section.
              (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 foreign-produced 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.
              (e) [Reserved]
              (f) Step 6: Direct product rule. Foreign items that are the direct product of U.S. technology, software, or plant or major component of a plant made from U.S. technology or software may be subject to the EAR if they meet the conditions of General Prohibition Three in § 736.2(b)(3) of the EAR. Direct products that are subject to the EAR may require a license to be exported from abroad or reexported to certain countries.
              (1) Subject to the EAR. If your foreign item is captured by the direct product rule (General Prohibition Three), then the item is subject to the EAR and its export from abroad or reexport may require a license. You should next consider the steps regarding all other general prohibitions, license exceptions, and other requirements. If the item is not captured by General Prohibition Three, then you have completed the steps necessary to determine whether the item is subject to the EAR, and you may skip the remaining steps. As described in part 734 of the EAR, items outside the U.S. are subject to the EAR when they are:

              (i) U.S.-origin commodities, software, or technology, unless controlled for export exclusively by another U.S. Federal agency or unless publicly available;

              (ii) Foreign-origin commodities, software, or technology that are within the scope of General Prohibition Two (De minimis rules), or General Prohibition Three (Direct Product rule). However, such foreign-origin items are also outside the scope of the EAR if they are controlled for export exclusively by another U.S. Federal Agency or, if technology or software, are publicly available as described in paragraph (b) of this section.
              (2) [Reserved]
              [61 FR 12740, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 732.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 732.3
              Steps regarding the ten general prohibitions.
              (a) Introduction. If your item or activity is subject to the scope of the EAR, you should then consider each of the ten general prohibitions listed in part 736 of the EAR. General Prohibitions One ((Exports and Reexports), Two (Parts and Components Reexports), and Three (Foreign-Produced Direct Product Reexports) (§ 736.2(b) (1), (2), and (3) of the EAR) are product controls that are shaped and limited by parameters specified on the CCL and Country Chart. General Prohibitions Four through Ten are prohibitions on certain activities that are not allowed without authorization from BIS, and these prohibitions apply to all items subject to the EAR unless otherwise specified (§ 736.2(b) (4) through (10) of the EAR).
              (b) Step 7: Classification. (1) You should classify your items “subject to the EAR” in the relevant entry on the CCL, and you may do so on your own without BIS assistance. The CCL includes a supplement no. 4 to part 774—Commerce Control List Order of Review. This supplement establishes the steps (i.e., the order of review) that should be followed in classifying items that are “subject to the EAR.” The exporter, reexporter, or transferor is responsible for correctly classifying the items in a transaction, which may involve submitting a classification request to BIS. Failure to classify or have classified the item correctly does not relieve the person of the obligation to obtain a license when one is required by the EAR.
              (2) You have a right to request the applicable classification of your item from BIS, and BIS has a duty to provide that classification to you. For further information on how to obtain classification assistance from BIS, see part 748 of the EAR.
              (3) For items subject to the EAR but not listed on the CCL, the proper classification is EAR99. This number is a “basket” for items not specified under any CCL entry and appears at the end of each Category on the CCL.
              (4) Items subject to temporary CCL controls are classified under the ECCN 0Y521 series (i.e., 0A521, 0B521, 0C521, 0D521 and 0E521) pursuant to § 742.6(a)(7) of the EAR while a determination is being made as to whether classification under a revised or new ECCN or EAR99 designation is appropriate .
              (c) Step 8: Country of ultimate destination. You should determine the country of ultimate destination. The country of destination determines the applicability of several general prohibitions, License Exceptions, and other requirements. Note that part 754 of the EAR concerning short supply controls is self-contained and is the only location in the EAR that contains both the prohibitions and exceptions applicable to short supply controls.
              (d) Step 9: Reason for control and the Country Chart—(1) Reason for control and column identifier within the Export Control Classification Number (ECCN). Once you have determined that your item is controlled by a specific ECCN, you must use information contained in the “License Requirements” section of that ECCN in combination with the Country Chart to decide whether a license is required under General Prohibitions One, Two, or Three to a particular destination. The CCL and the Country Chart are taken together to define these license requirements. The applicable ECCN will indicate the reason or reasons for control for items within that ECCN. For example, ECCN 6A007 is controlled for national security, missile technology, and anti-terrorism reasons.

              (2) Reason for control within the Country Chart. With each of the applicable Country Chart column identifiers noted in the correct ECCN, turn to the Country Chart. Locate the correct Country Chart column identifier on the horizontal axis, and determine whether an “X” is marked in the cell next to the destination in question. Consult § 738.4 of the EAR for comprehensive instructions on using the Country Chart and a detailed example.
              (i) An “X” in the cell or cells for the relevant country and reason(s) for control column indicates that a license is required for General Prohibitions One (Exports and Reexports in the Form Received), Two (Parts and Components Reexports), and Three (Foreign-Produced Direct Product Reexports). (See § 736.2 (b)(1), (b)(2), and (b)(3) of the EAR).
              (ii) If one or more cells have an “X” in the relevant column, a license is required unless you qualify for a License Exception described in part 740 of the EAR. If a cell does not contain an “X” for your destination in one or more relevant columns, a license is not required under the CCL and the Country Chart.
              (iii) Additional controls may apply to your export. You must go on to steps 12 through 18 described in paragraphs (g) to (m) of this section to determine whether additional limits described in General Prohibition Two (Parts and Components Reexports) and General Prohibition Three (Foreign-Produced Direct Product Reexports) apply to your proposed transaction. If you are exporting an item from the United States, you should skip Step 10 and Step 11. Proceed directly to Step 12 in paragraph (g) of this section.
              (3) License requirements not on the Country Chart. There are two instances where the Country Chart cannot be used to determine if a license is required. Items controlled for short supply reasons are not governed by the Country Chart. Part 754 of the EAR contains license requirements and License Exceptions for items subject to short supply controls. A limited number of ECCNs contained on the CCL do not identify a Country Chart column identifier. In these instances, the ECCN states whether a license is required and for which destinations. See § 738.3(a) of the EAR for a list of the ECCNs for which you do not need to consult the Country Chart to determine licensing requirements.
              (4) Destinations subject to embargo and other special controls provisions. The Country Chart does not apply to Cuba, Iran, North Korea, and Syria. For those countries you should review the provisions at part 746 of the EAR and may skip this step concerning the Country Chart. For Iraq and Russia, the Country Chart provides for certain license requirements, and part 746 of the EAR provides additional requirements.
              (5) Items subject to the EAR but not on the CCL. Items subject to the EAR that are not on the CCL are properly classified EAR99. For such items, you may skip this step and proceed directly with Step 12 in paragraph (g) of this section.
              (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, foreign-made 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.
              (f) Step 11: Direct product rule—General Prohibition Three. Items located outside the U.S. that are also produced outside the U.S. from U.S. technology or software or a plant or major component of a plant made from U.S. technology or software may be subject to the EAR if they meet the conditions of General Prohibition Three in § 736.2(b)(3) of the EAR. Direct products that are subject to the EAR may require a license to be exported from abroad or reexported to specified countries. If your foreign item is captured by the direct product rule (General Prohibition Three), then your export from abroad or reexport is subject to the EAR. You should next consider the steps regarding all other general prohibitions, license exceptions, and other requirements. If your item is not captured by General Prohibition Three, then your export from abroad or reexport is not subject to the EAR. You have completed the steps necessary to determine whether your transaction is subject to the EAR, and you may skip the remaining steps.
              (g) Step 12: Persons denied export privileges. (1) Determine whether your transferee, ultimate end-user, any intermediate consignee, or any other party to a transaction is a person denied export privileges (see part 764 of the EAR). It is a violation of the EAR to engage in any activity that violates the terms or conditions of a denial order. General Prohibition Four (Denial Orders) applies to all items subject to the EAR, i.e., both items on the CCL and within EAR99.
              (2) There are no License Exceptions to General Prohibition Four (Denial Orders). The prohibition concerning persons denied export privileges may be overcome only by a specific authorization from BIS, something that is rarely granted.
              (h) STEP 13: Prohibited end-uses and end-users. (1) Review the end-uses and end-users prohibited under General Prohibition Five (End-Use and End-User) (§ 736.2(b)(5) of the EAR) described in part 744 of the EAR. Part 744 of the EAR contains all the end-use and end-user license requirements, and those are in addition to the license requirements under General Prohibitions One (Exports and Reexports), Two (Parts and Components Reexports), and Three (Foreign-produced Direct Product Reexports). Unless otherwise indicated, the license requirements of General Prohibition Five (End-Use and End-User) described in part 744 of the EAR apply to all items subject to the EAR, i.e. both items on the CCL and within EAR99. Moreover, the requirements of General Prohibition Five (End-Use and End-User) are in addition to various end-use and end-user limitations placed on certain License Exceptions.
              (2) Under License Exception TSU (§ 740.13 of the EAR), operation technology and software, sales technology, and software updates overcome General Prohibition Five (End-Use and End-User) (§ 736.2(b)(5) of the EAR) if all terms and conditions of these provisions are met by the exporter or reexporter.
              (i) Step 14: Embargoed countries and special destinations. If your destination for any item is Cuba, Iran, Iraq, North Korea, or Syria, you must consider the requirements of parts 742 and 746 of the EAR. Unless otherwise indicated, General Prohibition Six (Embargo) applies to all items subject to the EAR, i.e. both items on the CCL and within EAR99. See § 746.1(b) for destinations subject to limited sanctions under United Nations Security Council arms embargoes. See § 746.5 for Russian Industry Sector Sanctions. You may not make an export or reexport contrary to the provisions of part 746 of the EAR without a license unless:
              (1) You are exporting or reexporting only publicly available technology or software or other items outside the scope of the EAR, or

              (2) You qualify for a License Exception referenced in part 746 of the EAR concerning embargoed destinations. You may not use a License Exception described in part 740 of the EAR to overcome General Prohibition Six (Embargo) (§ 736.2(b)(6) of the EAR) unless it is specifically authorized in part 746 of the EAR. Note that part 754 of the EAR concerning short supply controls is self-contained and is the only location in the EAR for both the prohibitions and exceptions applicable to short supply controls.
              (j) Step 15: Proliferation activity of U.S. persons unrelated to exports and reexports. (1) Review the scope of activity prohibited by General Prohibition Seven (U.S. Person Proliferation Activity) (§ 736.2(b)(7) of the EAR) as that activity is described in § 744.6 of the EAR. Keep in mind that such activity is not limited to exports and reexports and is not limited to items subject to General Prohibition One (Exports and Reexports), Two (Parts and Components Reexports), and Three (Foreign-Produced Direct Product Reexports). Moreover, such activity extends to services and dealing in wholly foreign-origin items in support of the specified proliferation activity and is not limited to items listed on the CCL or included in EAR99.
              (2) Review the definition of U.S. Person in part 744 of the EAR.
              (k) Step 16: In-transit. Shippers and operators of vessels or aircraft should review General Prohibition Eight (In-Transit) to determine the countries in which you may not unladen or ship certain items in-transit. General Prohibition Eight applies to all items subject to the EAR, i.e. both items on the CCL and within EAR99.
              (l) Step 17: Review orders, terms, and conditions. Review the orders, terms, and conditions applicable to your transaction. General Prohibition Nine (Orders, Terms, and Conditions) prohibits the violation of any orders, terms, and conditions imposed under the EAR. Terms and conditions are frequently contained in licenses. In addition, the ten general prohibitions (part 736 of the EAR) and the License Exceptions (part 740 of the EAR) impose terms and conditions or limitations on your proposed transactions and use of License Exceptions. A given license or License Exception may not be used unless each relevant term or condition is met.
              (m) Step 18: Review the “Know Your Customer” Guidance and General Prohibition Ten (Knowledge Violation to Occur). License requirements under the EAR are determined solely by the classification, end-use, end-user, ultimate destination, and conduct of U.S. persons. Supplement no. 1 to part 732 of the EAR is intended to provide helpful guidance regarding the process for the evaluation of information about customers, end-uses, and end-users. General Prohibition Ten (Knowledge Violation to Occur) prohibits anyone from proceeding with a transaction with knowledge that a violation of the EAR has occurred or is about to occur. It also prohibits related shipping, financing, and other services. General Prohibition Ten applies to all items subject to the EAR, i.e. both items on the CCL and within EAR99.
              (n) Step 19: Complete the review of the general prohibitions. After completion of Steps described in this section and review of all ten general prohibitions in part 736 of the EAR, including cross-referenced regulations in the EAR, you will know which, if any, of the ten general prohibitions of the EAR apply to you and your contemplated transaction or activity.
              (1) If none of the ten general prohibitions is applicable to your export from the United States, no license from BIS is required, you do not need to qualify for a License Exception under part 740 of the EAR. You should skip the Steps in § 732.4 of this part regarding License Exceptions and proceed directly to the Steps in § 732.5 of this part regarding recordkeeping, clearing the Bureau of Customs and Border Protection with the appropriate Shipper's Export Declaration or Automated Export System record, and using the required Destination Control Statement.
              (2) If none of the ten general prohibitions is applicable to your reexport or export from abroad, no license is required and you should skip all remaining Steps.
              (3) If one or more of the ten general prohibitions are applicable, continue with the remaining steps.
              [61 FR 12740, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 732.3, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 732.4
              Steps regarding License Exceptions.
              (a) Introduction to Steps for License Exceptions. If your export or reexport is subject to the EAR and is subject to General Prohibitions One (Exports and Reexports), Two (Parts and Components Reexports), or Three (Foreign-Produced Direct Product Reexports), consider the steps listed in paragraph (b) of this section. If your export or reexport is subject to General Prohibitions Four (Denial Orders), Seven (U.S. Person Proliferation Activity), Eight (In-Transit), Nine (Orders, Terms, and Conditions), or Ten (Knowledge Violation to Occur), there are no License Exceptions available for your export or reexport. If your export is subject to General Prohibition Five (End-Use End-User), consult part 744 of the EAR. If your export or reexport is subject to General Prohibition Six (Embargo), consult part 746 of the EAR for applicable License Exceptions.
              (b) Steps for License Exceptions—(1) Step 20: Applicability of General Prohibitions. Determine whether any one or more of the general prohibitions described in § 736.2(b) of the EAR apply to your export or reexport. If no general prohibition applies to your export or reexport, then you may proceed with your export or reexport and need not review part 740 of the EAR regarding License Exceptions. You are reminded of your recordkeeping obligations related to the clearance of the U.S. Customs Service provided in parts 762 and 758 of the EAR.
              (2) Step 21: Applicability of restrictions on all License Exceptions. Determine whether any one or more of the restrictions in § 740.2 of the EAR applies to your export or reexport. If any one or more of these restrictions apply, there are no License Exceptions available to you, and you must either obtain a license or refrain from the export or reexport.
              (3) Step 22: Terms and conditions of the License Exceptions. (i) If none of the restrictions in § 740.2 of the EAR applies, then review each of the License Exceptions to determine whether any one of them authorizes your export or reexport. Eligibility for License Exceptions is based on the item, the country of ultimate destination, the end-use, and the end-user, along with any special conditions imposed within a specific License Exception.
              (ii) You may meet the conditions for more than one License Exception. Moreover, although you may not qualify for some License Exceptions you may qualify for others. Review the broadest License Exceptions first, and use any License Exception available to you. You are not required to use the most restrictive applicable License Exception. If you fail to qualify for the License Exception that you first consider, you may consider any other License Exception until you have determined that no License Exception is available.
              (iii) License Exceptions TMP, RPL, BAG, AVS, GOV, and TSU authorize exports notwithstanding the provisions of the CCL. List-based License Exceptions (LVS, GBS, CIV, TSR, and APP) are available only to the extent specified on the CCL. Part 740 of the EAR provides authorization for reexports only to the extent each License Exception expressly authorizes reexports. Some ECCNs contain License Exception STA exclusion paragraphs. Those paragraphs delineate items excluded from the License Exception STA provisions in § 740.20(c)(2) of the EAR. License Exception APR authorizes reexports only.
              (iv) If you are exporting under License Exceptions GBS, CIV, LVS, STA, APP, TSR or GOV, you should review § 743.1 of the EAR to determine the applicability of certain reporting requirements. If you are exporting under License Exceptions LVS, TMP, RPL, STA, or GOV and your item is classified in the “600 series,” you should review § 743.4 of the EAR to determine the applicability of certain reporting requirements for conventional arms exports.
              (4) Step 23: Scope of License Exceptions. Some License Exceptions are limited by country or by type of item.

              (i) Countries are arranged in country groups for ease of reference. For a listing of country groups, please refer to supplement no. 1 to part 740 of the EAR. Unless otherwise indicated in a License Exception, License Exceptions do not apply to any exports or reexports to embargoed destinations. If your export or reexport is subject to General Prohibition Six (Embargo) for embargoed destinations, License Exceptions are only available to the extent specifically provided in part 746 of the EAR concerning embargoed destinations.
              (ii) Special commodity controls apply to short supply items. No License Exceptions described in part 740 of the EAR may be used for items listed on the CCL as controlled for Short Supply reasons. License Exceptions for short supply items are found in part 754 of the EAR.
              (5) Step 24: Compliance with all terms and conditions. If a License Exception is available, you may proceed with your export or reexport. However, you must meet all the terms and conditions required by the License Exception that you determined authorized your export or reexport. You must also consult part 758 and 762 of the EAR to determine your recordkeeping and documentation requirements.
              (6) Step 25: License requirements. If no License Exception is available, then you must either obtain a license before proceeding with your export or reexport or you must refrain from the proposed export or reexport.
              (7) Step 26: License applications. (i) If you are going to file a license application with BIS, you should first review the requirements in part 748 of the EAR. Exporters, reexporters, and transferors should review the instructions concerning applications and required support documents prior to submitting an application for a license.

              (ii) If you are going to file a license application with BIS for the export, reexport, or in-country transfer for aircraft or military vessels controlled under ECCNs 0A606.a, 8A609.a, 8A620.a, 8A620.b, certain “spacecraft” controlled under ECCN subparagraphs 9A515.a.1, a.2, a.3, a.4 or 9A515.g, ECCN 9A610.a, or technology under ECCNs 9E515.b, .d, .e, or .f, § 740.20(g) permits you to request in the application that subsequent exports of the type of aircraft, spacecraft, military vessels, or technology at issue be eligible for export under License Exception STA. The types of “items” controlled under ECCNs 0A606.a, 8A609.a, 8A620.a, 8A620.b, certain spacecraft controlled under ECCN subparagraphs 9A515.a.1, a.2, a.3, a.4 or 9A515.g, ECCN 9A610.a, and technology ECCNs 9E515.b, .d, .e, or .f, that have been determined to be eligible for License Exception STA pursuant to § 740.20(g) are identified in the License Exceptions paragraphs of ECCNs 0A606, 8A609, 8A620, 9A610, 9A515, and 9E515. Supplement No. 2 to part 748, paragraph (w) (License Exception STA eligibility requests), contains the instructions for such applications.

                Note 1 to paragraph (b)(7)(ii):
                If you intend to use License Exception STA, return to paragraphs (a) and then (b) of this section to review the Steps regarding the use of license exceptions.

              [61 FR 12740, Mar. 25, 1996, as amended at 61 FR 64274, Dec. 4, 1996; 63 FR 2456, Jan. 15, 1998; 71 FR 20883, Apr. 24, 2006; 76 FR 35286, June 16, 2011; 78 FR 22706, Apr. 16, 2013; 82 FR 61155, Dec. 27, 2017]

              § 732.5
              Steps regarding Electronic Export Information (EEI) requirements, Destination Control Statements, and recordkeeping.
              (a) Step 27: Electronic Export Information (EEI) filing requirements. Exporters or agents authorized to file EEI to the Automated Export System (AES), should review § 758.1 of the EAR to determine when the EAR requires EEI to be filed and what EEI data elements the EAR requires to be included. More detailed information about EEI filing procedures and requirements may be found in the Bureau of Census Foreign Trade Regulations (FTR) at 15 CFR Part 30. Reexporters and firms exporting from abroad may skip Steps 27 through 29 and proceed directly to § 732.6 of the EAR.
              (1) License code/license exception code (license code). You must report the correct license code that corresponds with your license authority (license or license exception) or designation (No License Required (NLR)) for your export on the EEI filing, as appropriate. See § 758.1(g) of the EAR and 15 CFR 30.6(a)(23) and Part III of Appendix B to 15 CFR Part 30 of the FTR. Generally, conflicts of data elements with license exception criteria, e.g., ECCN or destination, will result in a fatal error in the AES system. By reporting a license code for a license exception on an EEI filing you are certifying that your transaction meets the criteria of that license exception. By reporting a license code of NLR you are certifying that no license is required for your export.
              (2) License number. If you are exporting under the authority of a license, you must report the license number on the EEI filing. See 15 CFR 30.6(b)(5) of the FTR.
              (3) Item description. You must report an item description identical to the item description on the license when a license is required, or report an item description sufficient in detail to permit review by the U.S. Government and verification of the Schedule B Number or the Harmonized Tariff Schedule of the United States (HTS) for license exception exports or exports for which No License is Required (NLR). See § 758.1(g) of the EAR; and 15 CFR 30.6(a)(13) of the FTR.
              (4) Entering the ECCN. You must report the correct Export Control Classification Number (ECCN) or “EAR99” for items that are not classified under an ECCN on the EEI filing for all licensed and license exception exports, and “No License Required” (NLR) exports of items having a reason for control other than or in addition to anti-terrorism (AT). The only exception to this requirement would be the return of unwanted foreign origin items, meeting the provisions of License Exception TMP, under § 740.9(b)(3) of the EAR. See § 758.1(g) of the EAR and 15 CFR 30.6(b)(6) of the FTR.
              (b) Step 28: Destination Control Statement. The Destination Control Statement (DCS) must be entered on the invoice and on the bill of lading, air waybill, or other export control document that accompanies the shipment from its point of origin in the United States to the ultimate consignee or end-user abroad. The person responsible for preparation of those documents is responsible for entry of the DCS. The DCS is required for all exports from the United States of items on the Commerce Control List and is not required for items classified as EAR99, unless the export may be made under License Exception BAG or GFT (see part 740 of the EAR). DCS requirements do not apply to reexports. See § 758.6 of the EAR.
              (c) Step 29: Recordkeeping. Records of transactions subject to the EAR must be maintained for five years in accordance with the recordkeeping provisions of part 762 of the EAR.
              [65 FR 42568, July 10, 2000, as amended at 79 FR 4615, Jan. 29, 2014; 80 FR 51730, Aug. 26, 2015]

              § 732.6
              Steps for other requirements.
              Sections 732.1 through 732.4 of this part are useful in determining the license requirements that apply to you. Other portions of the EAR impose other obligations and requirements. Some of them are:
              (a) Requirements relating to the use of a license in § 758.4 of the EAR.
              (b) Obligations of carriers, forwarders, exporters and others to take specific steps and prepare and deliver certain documents to assure that items subject to the EAR are delivered to the destination to which they are licensed or authorized by a License Exception or some other provision of the regulations in § 758.1 through § 758.6 of the EAR.
              (c) Duty of carriers to return or unload shipments at the direction of U.S. Government officials (see § 758.8 of the EAR).
              (d) [Reserved]
              (e) Recordkeeping requirements imposed in part 762 of the EAR.
              (f) Requirements of part 764 of the EAR to disclose facts that may come to your attention after you file a license application or make other statements to the government concerning a transaction or proposed transaction that is subject to the EAR.
              (g) Certain obligations imposed by part 760 of the EAR on parties who receive requests to take actions related to foreign boycotts and prohibits certain actions relating to those boycotts.
              [61 FR 12740, Mar. 25, 1996, as amended at 65 FR 42568, July 10, 2000; 80 FR 51730, Aug. 26, 2015]

              Pt. 732, Supp. No. 1
              Supplement No. 1 to Part 732—Export Control Decision Tree

                ER27DE17.004

              [82 FR 61155, Dec, 27, 2017]

              Pt. 732, Supp. No. 2
              Supplement No. 2 to Part 732—Subject to the Ear?

                ER06FE04.001

              [69 FR 5687, Feb. 6, 2004]

              Pt. 732, Supp. No. 3
              Supplement No. 3 to Part 732—BIS's “Know Your Customer” Guidance and Red Flags
              “Know Your Customer” Guidance
              Various requirements of the EAR are dependent upon a person's knowledge of the end-use, end-user, ultimate destination, or other facts relating to a transaction or activity. These provisions include the nonproliferation-related “catch-all” sections and the prohibition against proceeding with a transaction with knowledge that a violation of the EAR has occurred or is about to occur.
              (a) BIS provides the following guidance on how individuals and firms should act under this knowledge standard. This guidance does not change or interpret the EAR.
              (1) Decide whether there are “red flags”. Take into account any abnormal circumstances in a transaction that indicate that the export may be destined for an inappropriate end-use, end-user, or destination. Such circumstances are referred to as “red flags”. Included among examples of red flags are orders for items that are inconsistent with the needs of the purchaser, a customer declining installation and testing when included in the sales price or when normally requested, or requests for equipment configurations that are incompatible with the stated destination (e.g., 120 volts in a country with 220 volts). Commerce has developed lists of such red flags that are not all-inclusive but are intended to illustrate the types of circumstances that should cause reasonable suspicion that a transaction will violate the EAR.
              (2) If there are “red flags”, inquire. If there are no “red flags” in the information that comes to your firm, you should be able to proceed with a transaction in reliance on information you have received. That is, absent “red flags” (or an express requirement in the EAR), there is no affirmative duty upon exporters to inquire, verify, or otherwise “go behind” the customer's representations. However, when “red flags” are raised in information that comes to your firm, you have a duty to check out the suspicious circumstances and inquire about the end-use, end-user, or ultimate country of destination. The duty to check out “red flags” is not confined to the use of License Exceptions affected by the “know” or “reason to know” language in the EAR. Applicants for licenses are required by part 748 of the EAR to obtain documentary evidence concerning the transaction, and misrepresentation or concealment of material facts is prohibited, both in the licensing process and in all export control documents. You can rely upon representations from your customer and repeat them in the documents you file unless red flags oblige you to take verification steps.
              (3) Do not self-blind. Do not cut off the flow of information that comes to your firm in the normal course of business. For example, do not instruct the sales force to tell potential customers to refrain from discussing the actual end-use, end-user, and ultimate country of destination for the product your firm is seeking to sell. Do not put on blinders that prevent the learning of relevant information. An affirmative policy of steps to avoid “bad” information would not insulate a company from liability, and it would usually be considered an aggravating factor in an enforcement proceeding.
              (4) Employees need to know how to handle “red flags”. Knowledge possessed by an employee of a company can be imputed to a firm so as to make it liable for a violation. This makes it important for firms to establish clear policies and effective compliance procedures to ensure that such knowledge about transactions can be evaluated by responsible senior officials. Failure to do so could be regarded as a form of self-blinding.
              (5) Reevaluate all the information after the inquiry. The purpose of this inquiry and reevaluation is to determine whether the “red flags” can be explained or justified. If they can, you may proceed with the transaction. If the “red flags” cannot be explained or justified and you proceed, you run the risk of having had “knowledge” that would make your action a violation of the EAR.
              (6) Refrain from the transaction or advise BIS and wait. If you continue to have reasons for concern after your inquiry, then you should either refrain from the transaction or submit all the relevant information to BIS in the form of an application for a license or in such other form as BIS may specify.
              (b) Industry has an important role to play in preventing exports and reexports contrary to the national security and foreign policy interests of the United States. BIS will continue to work in partnership with industry to make this front line of defense effective, while minimizing the regulatory burden on exporters. If you have any question about whether you have encountered a “red flag”, you may contact the Office of Export Enforcement at 1-800-424-2980 or the Office of Exporter Services at (202) 482-4532.
              Red Flags
              Possible indicators that an unlawful diversion might be planned by your customer include the following:
              1. The customer or purchasing agent is reluctant to offer information about the end-use of a product.
              2. The product's capabilities do not fit the buyer's line of business; for example, a small bakery places an order for several sophisticated lasers.

              3. The product ordered is incompatible with the technical level of the country to which the product is being shipped. For example, semiconductor manufacturing equipment would be of little use in a country without an electronics industry.
              4. The customer has little or no business background.
              5. The customer is willing to pay cash for a very expensive item when the terms of the sale call for financing.
              6. The customer is unfamiliar with the product's performance characteristics but still wants the product.
              7. Routine installation, training or maintenance services are declined by the customer.
              8. Delivery dates are vague, or deliveries are planned for out-of-the-way destinations.
              9. A freight forwarding firm is listed as the product's final destination.
              10. The shipping route is abnormal for the product and destination.
              11. Packaging is inconsistent with the stated method of shipment or destination.
              12. When questioned, the buyer is evasive or unclear about whether the purchased product is for domestic use, export or reexport.
              13. You receive an order for “parts” or “components” for an end item in 9x515 or the “600 series.” The requested “parts” or “components” may be eligible for License Exception STA, another authorization, or may not require a destination-based license requirement for the country in question. However, the requested “parts” or “components” would be sufficient to service one hundred of the 9x515 or “600 series” end items, but you “know” the country does not have those types of end items or only has two of those end items.
              14. The customer indicates or the facts pertaining to the proposed export suggest that a 9x515 or “600 series” item may be reexported to a destination listed in Country Group D:5 (see supplement no. 1 to part 740 of the EAR).
              [61 FR 12740, Mar. 25, 1996. Redesignated and amended at 62 FR 25453, 25456, May 9, 1997; 78 FR 22706, Apr. 16, 2013; 79 FR 27434, May 13, 2014]

            Pt. 734
            PART 734—SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS

              Sec.
              734.1
              Introduction.
              734.2
              Subject to the EAR.
              734.3
              Items subject to the EAR.
              734.4

                De minimis U.S. content.
              734.5
              Activities of U.S. and foreign persons subject to the EAR.
              734.6
              Assistance available from BIS for determining licensing and other requirements.
              734.7
              Published.
              734.8
              “Technology” or “software” that arises during, or results from, fundamental research.
              734.9
              [Reserved]
              734.10
              Patents.
              734.11
              [Reserved]
              734.12
              Effect on foreign laws and regulations.
              734.13
              Export.
              734.14
              Reexport.
              734.15
              Release.
              734.16
              Transfer (in-country).
              734.17
              Export of encryption source code and object code software.
              734.18
              Activities that are not exports, reexports, or transfers.
              734.19
              Transfer of access information.
              734.20
              Activities that are not deemed reexports.
              Supplement No. 1 to Part 734 [Reserved]
              Supplement No. 2 to Part 734—Guidelines for De Minimis Rules

              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 8, 2018, 83 FR 56253 (November 9, 2018).

              § 734.1
              Introduction.

              (a) In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C. This part describes the scope of the Export Administration Regulations (EAR) and explains certain key terms and principles used in the EAR. This part provides the rules you need to use to determine whether items and activities are subject to the EAR. This part is the first step in determining your obligations under the EAR. If neither your item nor your activity is subject to the EAR, then you do not have any obligations under the EAR and you do not need to review other parts of the EAR. If you already know that your item or activity is subject to the EAR, you do not need to review this part and you can go on to review other parts of the EAR to determine your obligations. This part also describes certain key terms and principles used in the EAR. Specifically, it includes the following terms: “subject to the EAR,” “items subject to the EAR,” “export,” and “reexport.” These and other terms are also included in part 772 of the EAR, Definitions of Terms, and you should consult part 772 of the EAR for the meaning of terms used in the EAR. Finally, this part makes clear that compliance with the EAR does not relieve any obligations imposed under foreign laws.
              (b) This part does not address any of the provisions set forth in part 760 of the EAR, Restrictive Trade Practices or Boycotts.
              (c) This part does not define the scope of legal authority to regulate exports, including reexports, or activities found in the Export Administration Act and other statutes. What this part does do is set forth the extent to which such legal authority has been exercised through the EAR.
              [61 FR 12746, Mar. 25, 1996, as amended at 69 FR 5690, Feb. 6, 2004]

              § 734.2
              Subject to the EAR.
              (a) Subject to the EAR—Definition. (1) “Subject to the EAR” is a term used in the EAR to describe those items and activities over which BIS exercises regulatory jurisdiction under the EAR. Conversely, items and activities that are not subject to the EAR are outside the regulatory jurisdiction of the EAR and are not affected by these regulations. The items and activities subject to the EAR are described in §§ 734.2 through 734.5 of this part. You should review the Commerce Control List (CCL) and any applicable parts of the EAR to determine whether an item or activity is subject to the EAR. However, if you need help in determining whether an item or activity is subject to the EAR, see § 734.6 of this part. Publicly available technology and software not subject to the EAR are described in §§ 734.7 through 734.11 and supplement no. 1 to this part.
              (2) Items and activities subject to the EAR may also be controlled under export-related programs administered by other agencies. Items and activities subject to the EAR are not necessarily exempted from the control programs of other agencies. Although BIS and other agencies that maintain controls for national security and foreign policy reasons try to minimize overlapping jurisdiction, you should be aware that in some instances you may have to comply with more than one regulatory program.
              (3) The term “subject to the EAR” should not be confused with licensing or other requirements imposed in other parts of the EAR. Just because an item or activity is subject to the EAR does not mean that a license or other requirement automatically applies. A license or other requirement applies only in those cases where other parts of the EAR impose a licensing or other requirement on such items or activities.
              (b) [Reserved]
              [61 FR 12746, Mar. 25, 1996, as amended at 61 FR 68578, Dec. 30, 1996; 63 FR 50520, Sept. 22, 1998; 64 FR 13339, Mar. 18, 1999; 65 FR 2496, Jan. 14, 2000; 67 FR 38860, June 6, 2002; 72 FR 3945, Jan. 29, 2007; 76 FR 1062, Jan. 7, 2011; 81 FR 35602, June 3, 2016]

              § 734.3
              Items subject to the EAR.
              (a) Except for items excluded in paragraph (b) of this section, the following items are subject to the EAR:
              (1) All items in the United States, including in a U.S. Foreign Trade Zone or moving intransit through the United States from one foreign country to another;
              (2) All U.S. origin items wherever located;
              (3) Foreign-made commodities that incorporate controlled U.S.-origin commodities, foreign-made commodities that are ‘bundled’ with controlled U.S.-origin software, foreign-made 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;

              (4) Certain foreign-made direct products of U.S. origin technology or software, as described in § 736.2(b)(3) of the EAR. The term “direct product” means the immediate product (including processes and services) produced directly by the use of technology or software; and

                Note to paragraph (a)(4):
                Certain foreign-manufactured items developed or produced from U.S.-origin encryption items exported pursuant to License Exception ENC are subject to the EAR. See § 740.17(a) of the EAR.

              (5) Certain commodities produced by any plant or major component of a plant located outside the United States that is a direct product of U.S.-origin technology or software, as described in § 736.2(b)(3) of the EAR.
              (b) The following are not subject to the EAR:
              (1) Items that are exclusively controlled for export or reexport by the following departments and agencies of the U.S. Government which regulate exports or reexports for national security or foreign policy purposes:
              (i) Department of State. The International Traffic in Arms Regulations (22 CFR parts 120-130) administered by the Directorate of Defense Trade Controls relate to defense articles and defense services on the U.S. Munitions List (22 CFR part 121). Section 38 of the Arms Export Control Act (22 U.S.C. 2778). (Also see paragraph (b)(1)(vi) of this section).

                Note to paragraph (b)(1)(i):
                If a defense article or service is controlled by the U.S. Munitions List set forth in the International Traffic in Arms Regulations, its export and temporary import is regulated by the Department of State. The President has delegated the authority to control defense articles and services for purposes of permanent import to the Attorney General. The defense articles and services controlled by the Secretary of State and the Attorney General collectively comprise the U.S. Munitions List under the Arms Export Control Act (AECA). As the Attorney General exercises independent delegated authority to designate defense articles and services for purposes of permanent import controls, the permanent import control list administered by the Department of Justice has been separately labeled the U.S. Munitions Import List (27 CFR Part 447) to distinguish it from the list set out in the International Traffic in Arms Regulations. In carrying out the functions delegated to the Attorney General pursuant to the AECA, the Attorney General shall be guided by the views of the Secretary of State on matters affecting world peace, and the external security and foreign policy of the United States.

              (ii) Treasury Department, Office of Foreign Assets Control (OFAC). Regulations administered by OFAC implement broad controls and embargo transactions with certain foreign countries. These regulations include controls on exports and reexports to certain countries (31 CFR chapter V). Trading with the Enemy Act (50 U.S.C. app. section 1 et seq.), and International Emergency Economic Powers Act (50 U.S.C. 1701, et seq.)
              (iii) U.S. Nuclear Regulatory Commission (NRC). Regulations administered by NRC control the export and reexport of commodities related to nuclear reactor vessels (10 CFR part 110). Atomic Energy Act of 1954, as amended (42 U.S.C. part 2011 et seq.).
              (iv) Department of Energy (DOE). Regulations administered by DOE control the export and reexport of technology related to the production of special nuclear materials (10 CFR part 810). Atomic Energy Act of 1954, as amended (42 U.S.C. section 2011 et seq.).
              (v) Patent and Trademark Office (PTO). Regulations administered by PTO provide for the export to a foreign country of unclassified technology in the form of a patent application or an amendment, modification, or supplement thereto or division thereof (37 CFR part 5). BIS has delegated authority under the Export Administration Act to the PTO to approve exports and reexports of such technology which is subject to the EAR. Exports and reexports of such technology not approved under PTO regulations must comply with the EAR.
              (vi) Department of Defense (DoD) and Department of State Foreign Military Sales (FMS) Program. Items that are subject to the EAR that are sold, leased or loaned by the Department of Defense to a foreign country or international organization under the FMS Program of the Arms Export Control Act pursuant to a Letter of Offer and Acceptance (LOA) authorizing such transfers are not “subject to the EAR,” but rather, are subject to the authority of the Arms Export Control Act.

              (2) Prerecorded phonograph records reproducing in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals; printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals; children's picture and painting books; newspaper and periodicals, unbound, excluding waste; music books; sheet music; calendars and calendar blocks, paper; maps, hydrographical charts, atlases, gazetteers, globe covers, and globes (terrestrial and celestial); exposed and developed microfilm reproducing, in whole or in part, the content of any of the above; exposed and developed motion picture film and soundtrack; and advertising printed matter exclusively related thereto.
              (3) Information and “software” that:
              (i) Are published, as described in § 734.7;
              (ii) Arise during, or result from, fundamental research, as described in § 734.8;
              (iii) Are released by instruction in a catalog course or associated teaching laboratory of an academic institution;
              (iv) Appear in patents or open (published) patent applications available from or at any patent office, unless covered by an invention secrecy order, or are otherwise patent information as described in § 734.10;
              (v) Are non-proprietary system descriptions; or

              (vi) Are telemetry data as defined in Note 2 to Category 9, Product Group E (see supplement no. 1 to part 774 of the EAR).

                Note to paragraphs (b)(2) and (b)(3):

                A printed book or other printed material setting forth encryption source code is not itself subject to the EAR (see § 734.3(b)(2)). However, notwithstanding § 734.3(b)(2), encryption source code in electronic form or media (e.g., computer diskette or CD ROM) remains subject to the EAR (see § 734.17)). Publicly available encryption object code “software” classified under ECCN 5D002 is not subject to the EAR when the corresponding source code meets the criteria specified in § 742.15(b) of the EAR.

                Note to paragraph (b)(3):
                Except as set forth in part 760 of this title, information that is not within the scope of the definition of “technology” (see § 772.1 of the EAR) is not subject to the EAR.

              (c) “Items subject to the EAR” consist of the items listed on the Commerce Control List (CCL) in part 774 of the EAR and all other items which meet the definition of that term. For ease of reference and classification purposes, items subject to the EAR which are not listed on the CCL are designated as “EAR99.” Items subject to temporary CCL controls are classified under the ECCN 0Y521 series (i.e., 0A521, 0B521, 0C521, 0D521, and 0E521) pursuant to § 742.6(a)(7) of the EAR, while a determination is made as to whether classification under a revised or new ECCN, or an EAR99 designation, is appropriate.
              (d) Commodity classification determinations and advisory opinions issued by BIS are not, and may not be relied upon as, determinations that the items in question are “subject to the EAR,” as described in § 748.3 of the EAR.
              (e) Items subject to the EAR may be exported, reexported, or transferred in country under licenses, agreements, or other approvals from the Department of State's Directorate of Defense Trade Controls pursuant to §§ 120.5(b) and 126.6(c) of the International Traffic in Arms Regulations (ITAR) (22 CFR 120.5(b) and 126.6(c)). Exports, reexports, or in-country transfers not in accordance with the terms and conditions of a license, agreement, or other approval under § 120.5(b) of the ITAR requires separate authorization from BIS. Exports, reexports, or in-country transfers of items subject to the EAR under a Foreign Military Sales case that exceed the scope of § 126.6(c) of the ITAR or the scope of actions made by the Department of State's Office of Regional Security and Arms Transfers require separate authorization from BIS.
              [61 FR 12746, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 734.3, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 734.4

                De minimis U.S. content.
              (a) Items for which there is no de minimis level. (1) There is no de minimis level for the export from a foreign country of a foreign-made computer with an Adjusted Peak Performance (APP) exceeding that listed in ECCN 4A003.b and containing U.S.-origin controlled semiconductors (other than memory circuits) classified under ECCN 3A001 to Computer Tier 3 destinations; or exceeding an APP listed in ECCN 4A994.b and containing U.S.-origin controlled semiconductors (other than memory circuits) classified under ECCN 3A001 or high speed interconnect devices (ECCN 4A994.j) to Cuba, Iran, North Korea, Sudan, and Syria.

              (2) Foreign produced encryption technology that incorporates U.S. origin encryption technology controlled by ECCN 5E002 is subject to the EAR regardless of the amount of U.S. origin content.
              (3) [Reserved]
              (4) There is no de minimis level for U.S.-origin technology controlled by ECCN 9E003.a.1 through a.8,.h, .i., and .j., when redrawn, used, consulted, or otherwise commingled abroad.
              (5) There is no de minimis level for foreign-made “military commodities” incorporating one or more of the commodities described in ECCN 0A919.a.1 when destined for a country listed in Country Group D:5 of supplement no. 1 to part 740 of the EAR.
              (6) 9x515 and “600 series.”
              (i) There is no de minimis level for foreign-made items that incorporate U.S.-origin 9x515 or “600 series” items enumerated or otherwise described in paragraphs .a through .x of a 9x515 or “600 series” ECCN when destined for a country listed in Country Group D:5 of supplement no. 1 to part 740 of the EAR.
              (ii) There is no de minimis level for foreign-made items that incorporate U.S.-origin 9x515 or “600 series” .y items when destined for a country listed in Country Group E:1 or E:2 of supplement no. 1 to part 740 of the EAR or for the People's Republic of China (PRC).

              (7) 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.
              (b) Special requirements for certain encryption items. Non-U.S.-made items that incorporate U.S.-origin items that are listed in this paragraph are subject to the EAR unless they meet the de minimis level and destination requirements of paragraph (c) or (d) of this section and the requirements of this paragraph.
              (1) The U.S.-origin commodities or software, if controlled under ECCN 5A002, ECCN 5B002, equivalent or related software therefor classified under ECCN 5D002, and “cryptanalytic items” classified under ECCN 5A004 or 5D002, must have been:

              (i) Publicly available encryption source code classified under ECCN 5D002 that has met the notification requirement of § 742.15(b), see § 734.3(b)(3) of the EAR. Such source code does not have to be counted as controlled U.S.-origin content in a de minimis calculation;
              (ii) Authorized for License Exception ENC by BIS after classification pursuant to § 740.17(b)(3) of the EAR;
              (iii) Authorized for License Exception ENC by BIS after classification pursuant to § 740.17(b)(2) of the EAR, and the non-U.S.-made product will not be sent to any destination in Country Groups E:1 and E:2 in Supplement No. 1 to part 740 of the EAR; or
              (iv) Authorized for License Exception ENC pursuant to § 740.17(b)(1) of the EAR.

              (2) U.S.-origin encryption items classified under ECCNs 5A992.c, 5D992.c, or 5E992.b.

                Note to paragraph (b):
                See Supplement No. 2 to this part for de minimis calculation procedures and reporting requirements.

              (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 foreign-made 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 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.

              (2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 10% or less of the total value of the foreign-made software; or

              (3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 10% or less of the total value of the foreign technology. Before you may rely upon the de minimis exclusion for foreign-made 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 or E:2 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 foreign-made 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.

              (2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 25% or less of the total value of the foreign-made software; or

              (3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 25% or less of the total value of the foreign technology. Before you may rely upon the de minimis exclusion for foreign-made 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.

              (e) You are responsible for making the necessary calculations to determine whether the de minimis provisions apply to your situation. See supplement no. 2 to part 734 for guidance regarding calculation of U.S. controlled content.
              (f) See § 770.3 of the EAR for principles that apply to commingled U.S.-origin technology and software.
              (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.
              [61 FR 12746, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 734.4, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 734.5
              Activities of U.S. and foreign persons subject to the EAR.
              The following kinds of activities are subject to the EAR:
              (a) Certain activities of U.S. persons related to the proliferation of nuclear explosive devices, chemical or biological weapons, missile technology as described in § 744.6 of the EAR, and the proliferation of chemical weapons as described in part 745 of the EAR.

              (b) Activities of U.S. or foreign persons prohibited by any order issued under the EAR, including a Denial Order issued pursuant to part 766 of the EAR.
              [61 FR 12746, Mar. 25, 1996, as amended at 61 FR 68578, Dec. 30, 1996; 64 FR 27141, May 18, 1999; 64 FR 47105, Aug. 30, 1999; 74 FR 52883, Oct. 15, 2009]

              § 734.6
              Assistance available from BIS for determining licensing and other requirements.
              (a) If you are not sure whether a commodity, software, technology, or activity “subject to the EAR” is subject to licensing or other requirements under the EAR, you may ask BIS for an advisory opinion or a commodity classification determination. In order to determine whether an item is “subject to the ITAR,” you should review the ITAR's United States Munitions List (see 22 CFR 120.3, 120.6 and 121.1). You may also submit a request to the Department of State, Directorate of Defense Trade Controls, for a formal jurisdictional determination regarding the commodity, software, technology, or activity at issue; or in ITAR terms, the defense article, technical data or defense service at issue (see 22 CFR 120.4).
              (b) As the agency responsible for administering the EAR, BIS is the only agency that has the responsibility for determining whether an item or activity is subject to the EAR and, if so, what licensing or other requirements apply under the EAR. Such a determination only affects EAR requirements, and does not affect the applicability of any other regulatory programs.
              (c) If you need help in determining BIS licensing or other requirements you may ask BIS for help by following the procedures described in § 748.3 of the EAR.
              [61 FR 12746, Mar. 25, 1996, as amended at 78 FR 61900, Oct. 4, 2013]

              § 734.7
              Published.
              (a) Except as set forth in paragraph (b) of this section, unclassified “technology” or “software” is “published,” and is thus not “technology” or “software” subject to the EAR, when it has been made available to the public without restrictions upon its further dissemination such as through any of the following:
              (1) Subscriptions available without restriction to any individual who desires to obtain or purchase the published information;
              (2) Libraries or other public collections that are open and available to the public, and from which the public can obtain tangible or intangible documents;
              (3) Unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the interested public;
              (4) Public dissemination (i.e., unlimited distribution) in any form (e.g., not necessarily in published form), including posting on the Internet on sites available to the public; or
              (5) Submission of a written composition, manuscript, presentation, computer-readable dataset, formula, imagery, algorithms, or some other representation of knowledge with the intention that such information will be made publicly available if accepted for publication or presentation:
              (i) To domestic or foreign co-authors, editors, or reviewers of journals, magazines, newspapers or trade publications;
              (ii) To researchers conducting fundamental research; or
              (iii) To organizers of open conferences or other open gatherings.
              (b) Published encryption software classified under ECCN 5D002 remains subject to the EAR unless it is publicly available encryption object code software classified under ECCN 5D002 and the corresponding source code meets the criteria specified in § 742.15(b) of the EAR.
              [81 FR 35602, June 3, 2016, as amended at 81 FR 64668, Sept. 20, 2016]

              § 734.8
              “Technology” or “software” that arises during, or results from, fundamental research.
              (a) Fundamental research. “Technology” or “software” that arises during, or results from, fundamental research and is intended to be published is not subject to the EAR.

                Note 1 to paragraph (a):

                This paragraph does not apply to “technology” or “software” subject to the EAR that is released to conduct fundamental research. (See § 734.7(a)(5)(ii) for information released to researchers that is “published.”)

                Note 2 to paragraph (a):
                There are instances in the conduct of research where a researcher, institution or company may decide to restrict or protect the release or publication of “technology” or “software” contained in research results. Once a decision is made to maintain such “technology” or “software” as restricted or proprietary, the “technology” or “software,” if within the scope of § 734.3(a), becomes subject to the EAR.

              (b) Prepublication review. “Technology” or “software” that arises during, or results, from fundamental research is intended to be published to the extent that the researchers are free to publish the “technology” or “software” contained in the research without restriction. “Technology” or “software” that arises during or results from fundamental research subject to prepublication review is still intended to be published when:
              (1) Prepublication review is conducted solely to ensure that publication would not compromise patent rights, so long as the review causes no more than a temporary delay in publication of the research results;
              (2) Prepublication review is conducted by a sponsor of research solely to insure that the publication would not inadvertently divulge proprietary information that the sponsor has furnished to the researchers; or

              (3) With respect to research conducted by scientists or engineers working for a Federal agency or a Federally Funded Research and Development Center (FFRDC), the review is conducted within any appropriate system devised by the agency or the FFRDC to control the release of information by such scientists and engineers.

                Note 1 to paragraph (b):
                Although “technology” or “software” arising during or resulting from fundamental research is not considered intended to be published if researchers accept restrictions on its publication, such “technology” or “software” will nonetheless qualify as “technology” or “software” arising during or resulting from fundamental research once all such restrictions have expired or have been removed.

                Note 2 to paragraph (b):
                Research that is voluntarily subjected to U.S. government prepublication review is considered “intended to be published” when the research is released consistent with the prepublication review and any resulting controls.

                Note 3 to paragraph (b):
                “Technology” or “software” resulting from U.S. government funded research that is subject to government-imposed access and dissemination or other specific national security controls qualifies as “technology” or “software” resulting from fundamental research, provided that all government-imposed national security controls have been satisfied and the researchers are free to publish the “technology” or “software” contained in the research without restriction. Examples of specific national security controls include requirements for prepublication review by the Government, with right to withhold permission for publication; restrictions on prepublication dissemination of information to non-U.S. citizens or other categories of persons; or restrictions on participation of non-U.S. citizens or other categories of persons in the research. A general reference to one or more export control laws or regulations or a general reminder that the Government retains the right to classify is not a specific national security control.

              (c) Fundamental research definition. Fundamental research means research in science, engineering, or mathematics, the results of which ordinarily are published and shared broadly within the research community, and for which the researchers have not accepted restrictions for proprietary or national security reasons.
              [81 FR 35603, June 3, 2016]

              § 734.9
              [Reserved]

              § 734.10
              Patents.
              “Technology” is not subject to the EAR if it is contained in any of the following:
              (a) A patent or an open (published) patent application available from or at any patent office;
              (b) A published patent or patent application prepared wholly from foreign-origin “technology” where the application is being sent to the foreign inventor to be executed and returned to the United States for subsequent filing in the U.S. Patent and Trademark Office;

              (c) A patent application, or an amendment, modification, supplement or division of an application, and authorized for filing in a foreign country in accordance with the regulations of the Patent and Trademark Office, 37 CFR part 5; or

              (d) A patent application when sent to a foreign country before or within six months after the filing of a United States patent application for the purpose of obtaining the signature of an inventor who was in the United States when the invention was made or who is a co-inventor with a person residing in the United States.
              [81 FR 35603, June 3, 2016]

              § 734.11
              [Reserved]

              § 734.12
              Effect on foreign laws and regulations.
              Any person who complies with any of the license or other requirements of the EAR is not relieved of the responsibility of complying with applicable foreign laws and regulations. Conversely, any person who complies with the license or other requirements of a foreign law or regulation is not relieved of the responsibility of complying with U.S. laws and regulations, including the EAR.

              § 734.13
              Export.
              (a) Except as set forth in § 734.17 or § 734.18, Export means:
              (1) An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner;
              (2) Releasing or otherwise transferring “technology” or source code (but not object code) to a foreign person in the United States (a “deemed export”);
              (3) Transferring by a person in the United States of registration, control, or ownership of:

              (i) A spacecraft subject to the EAR that is not eligible for export under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or
              (ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country.
              (b) Any release in the United States of “technology” or source code to a foreign person is a deemed export to the foreign person's most recent country of citizenship or permanent residency.
              (c) The export of an item that will transit through a country or countries to a destination identified in the EAR is deemed to be an export to that destination.
              [81 FR 35603, June 3, 2016]

              § 734.14
              Reexport.
              (a) Except as set forth in §§ 734.18 and 734.20, Reexport means:
              (1) An actual shipment or transmission of an item subject to the EAR from one foreign country to another foreign country, including the sending or taking of an item to or from such countries in any manner;
              (2) Releasing or otherwise transferring “technology” or source code subject to the EAR to a foreign person of a country other than the foreign country where the release or transfer takes place (a deemed reexport);
              (3) Transferring by a person outside the United States of registration, control, or ownership of:

              (i) A spacecraft subject to the EAR that is not eligible for reexport under License Exception STA (i.e., spacecraft that provide space-based logistics, assembly or servicing of any spacecraft) to a person in or a national of any other country; or
              (ii) Any other spacecraft subject to the EAR to a person in or a national of a Country Group D:5 country.
              (b) Any release outside of the United States of “technology” or source code subject to the EAR to a foreign person of another country is a deemed reexport to the foreign person's most recent country of citizenship or permanent residency, except as described in § 734.20.
              (c) The reexport of an item subject to the EAR that will transit through a country or countries to a destination identified in the EAR is deemed to be a reexport to that destination.
              [81 FR 35604, June 3, 2016]

              § 734.15
              Release.
              (a) Except as set forth in § 734.18, “technology” and “software” are “released” through:

              (1) Visual or other inspection by a foreign person of items that reveals “technology” or source code subject to the EAR to a foreign person; or

              (2) Oral or written exchanges with a foreign person of “technology” or source code in the United States or abroad.
              (b) Any act causing the “release” of “technology” or “software,” through use of “access information” or otherwise, to yourself or another person requires an authorization to the same extent an authorization would be required to export or reexport such “technology” or “software” to that person.
              [81 FR 35604, June 3, 2016]

              § 734.16
              Transfer (in-country).
              Except as set forth in § 734.18(a)(3), a Transfer (in-country) is a change in end use or end user of an item within the same foreign country. Transfer (in-country) is synonymous with In-country transfer.

              [81 FR 35604, June 3, 2016]

              § 734.17
              Export of encryption source code and object code software.
              (a) For purposes of the EAR, the Export of encryption source code and object code “software” means:

              (1) An actual shipment, transfer, or transmission out of the United States (see also paragraph (b) of this section); or
              (2) A transfer of such “software” in the United States to an embassy or affiliate of a foreign country.
              (b) The export of encryption source code and object code “software” controlled for “EI” reasons under ECCN 5D002 on the Commerce Control List (see supplement no. 1 to part 774 of the EAR) includes:
              (1) Downloading, or causing the downloading of, such “software” to locations (including electronic bulletin boards, Internet file transfer protocol, and World Wide Web sites) outside the U.S., or
              (2) Making such “software” available for transfer outside the United States, over wire, cable, radio, electromagnetic, photo optical, photoelectric or other comparable communications facilities accessible to persons outside the United States, including transfers from electronic bulletin boards, Internet file transfer protocol and World Wide Web sites, unless the person making the “software” available takes precautions adequate to prevent unauthorized transfer of such code. See § 742.15(b) of the EAR for notification requirements for export or reexports of encryption source code “software” considered to be publicly available or published consistent with the provisions of § 734.3(b)(3). Publicly available encryption source code “software” and corresponding object code are not subject to the EAR, when the encryption source code “software” meets the notification requirements in § 742.15(b) of the EAR.
              (c) Subject to the General Prohibitions described in part 736 of the EAR, such precautions for Internet transfers of products eligible for export under § 740.17(b)(2) of the EAR (encryption “software” products, certain encryption source code and general purpose encryption toolkits) shall include such measures as:

              (1) The access control system, either through automated means or human intervention, checks the address of every system outside of the U.S. or Canada requesting or receiving a transfer and verifies such systems do not have a domain name or Internet address of a foreign government end-user (e.g., “.gov,” “.gouv,” “.mil” or similar addresses);
              (2) The access control system provides every requesting or receiving party with notice that the transfer includes or would include cryptographic “software” subject to export controls under the Export Administration Regulations, and anyone receiving such a transfer cannot export the “software” without a license or other authorization; and

              (3) Every party requesting or receiving a transfer of such “software” must acknowledge affirmatively that the “software” is not intended for use by a government end user, as defined in part 772 of the EAR, and he or she understands the cryptographic “software” is subject to export controls under the Export Administration Regulations and anyone receiving the transfer cannot export the “software” without a license or other authorization. BIS will consider acknowledgments in electronic form provided they are adequate to assure legal undertakings similar to written acknowledgments.
              [81 FR 35604, June 3, 2016, as amended at 81 FR 64668, Sept. 20, 2016]

              § 734.18
              Activities that are not exports, reexports, or transfers.
              (a) Activities that are not exports, reexports, or transfers. The following activities are not exports, reexports, or transfers:
              (1) Launching a spacecraft, launch vehicle, payload, or other item into space.
              (2) Transmitting or otherwise transferring “technology” or “software” to a person in the United States who is not a foreign person from another person in the United States.
              (3) Transmitting or otherwise making a transfer (in-country) within the same foreign country of “technology” or “software” between or among only persons who are not “foreign persons,” so long as the transmission or transfer does not result in a release to a foreign person or to a person prohibited from receiving the “technology” or “software.”
              (4) Shipping, moving, or transferring items between or among the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Commonwealth of the Northern Mariana Islands or any territory, dependency, or possession of the United States as listed in Schedule C, Classification Codes and Descriptions for U.S. Export Statistics, issued by the Bureau of the Census.
              (5) Sending, taking, or storing “technology” or “software” that is:
              (i) Unclassified;
              (ii) Secured using 'end-to-end encryption;'
              (iii) Secured using cryptographic modules (hardware or “software”) compliant with Federal Information Processing Standards Publication 140-2 (FIPS 140-2) or its successors, supplemented by “software” implementation, cryptographic key management and other procedures and controls that are in accordance with guidance provided in current U.S. National Institute for Standards and Technology publications, or other equally or more effective cryptographic means; and

              (iv) Not intentionally stored in a country listed in Country Group D:5 (see supplement no. 1 to part 740 of the EAR) or in the Russian Federation.

                Note 1 to paragraph (a)(5)(iv):
                Data in-transit via the Internet is not deemed to be stored.

              (b) Definitions. For purposes of this section, End-to-end encryption means (i) the provision of cryptographic protection of data such that the data is not in unencrypted form between an originator (or the originator's in-country security boundary) and an intended recipient (or the recipient's in-country security boundary), and (ii) the means of decryption are not provided to any third party. The originator and the recipient may be the same person.
              (c) Ability to access “technology” or “software” in encrypted form. The ability to access “technology” or “software” in encrypted form that satisfies the criteria set forth in paragraph (a)(5) of this section does not constitute the release or export of such “technology” or “software.”
              [81 FR 35604, June 3, 2016, as amended at 82 FR 61156, Dec. 27, 2017]

              § 734.19
              Transfer of access information.
              To the extent an authorization would be required to transfer “technology” or “software,” a comparable authorization is required to transfer access information if done with “knowledge” that such transfer would result in the release of such “technology” or “software” without a required authorization.
              [81 FR 35605, June 3, 2016]

              § 734.20
              Activities that are not deemed reexports.
              The following activities are not deemed reexports (see “deemed reexport” definition in § 734.14(b)):
              (a) Authorized Release of “technology” or source code. Release of “technology” or source code by an entity outside the United States to a foreign person of a country other than the foreign country where the release takes place if:

              (1) The entity is authorized to receive the “technology” or source code at issue, whether by a license, license exception, or situation where no license is required under the EAR for such “technology” or source code; and
              (2) The entity has “knowledge” that the foreign national's most recent country of citizenship or permanent residency is that of a country to which export from the United States of the “technology” or source code at issue would be authorized by the EAR either under a license exception or in situations where no license under the EAR would be required.
              (b) Release to Country Group A:5 nationals. Without limiting the scope of paragraph (a), release of “technology” or source code by an entity outside the United States to a foreign person of a country other than the foreign country where the release takes place if:
              (1) The entity is authorized to receive the “technology” or source code at issue, whether by a license, license exception, or through situations where no license is required under the EAR;
              (2) The foreign person is a bona fide 'permanent and regular employee' of the entity and is not a proscribed person (see § 772.1 for definition of proscribed person);
              (3) Such employee is a national exclusively of a country in Country Group A:5; and
              (4) The release of “technology” or source code takes place entirely within the physical territory of any such country, or within the United States.
              (c) Release to other than Country Group A:5 nationals. Without limiting the scope of paragraph (a), release of “technology” or source code by an entity outside the United States to a foreign person of a country other than the foreign country where the release takes place if:
              (1) The entity is authorized to receive the “technology” or source code at issue, whether by a license, license exception, or situations where no license is required under the EAR;
              (2) The foreign person is a bona fide 'permanent and regular employee' of the entity and is not a proscribed person (see § 772.1 for definition of proscribed person);
              (3) The release takes place entirely within the physical territory of the country where the entity is located, conducts official business, or operates, or within the United States;
              (4) The entity has effective procedures to prevent diversion to destinations, entities, end users, and end uses contrary to the EAR; and
              (5) Any one of the following six (i.e., paragraphs (c)(5)(i), (ii), (iii), (iv), (v), or (vi) of this section) situations is applicable:
              (i) The foreign person has a security clearance approved by the host nation government of the entity outside the United States;
              (ii) The entity outside the United States:
              (A) Has in place a process to screen the foreign person employee and to have the employee execute a non-disclosure agreement that provides assurances that the employee will not disclose, transfer, or reexport controlled “technology” contrary to the EAR;
              (B) Screens the employee for substantive contacts with countries listed in Country Group D:5 (see supplement no. 1 to part 740 of the EAR). Although nationality does not, in and of itself, prohibit access to “technology” or source code subject to the EAR, an employee who has substantive contacts with foreign persons from countries listed in Country Group D:5 shall be presumed to raise a risk of diversion, unless BIS determines otherwise;
              (C) Maintains a technology security or clearance plan that includes procedures for screening employees for such substantive contacts;
              (D) Maintains records of such screenings for the longer of five years or the duration of the individual's employment with the entity; and
              (E) Will make such plans and records available to BIS or its agents for civil and criminal law enforcement purposes upon request;
              (iii) The entity is a U.K. entity implementing § 126.18 of the ITAR (22 CFR 126.18) pursuant to the U.S.-U.K. Exchange of Notes regarding § 126.18 of the ITAR for which the U.K. has provided appropriate implementation guidance;

              (iv) The entity is a Canadian entity implementing § 126.18 of the ITAR pursuant to the U.S.-Canadian Exchange of Letters regarding § 126.18 of the ITAR for which Canada has provided appropriate implementation guidance;

              (v) The entity is an Australian entity implementing the exemption at paragraph 3.7b of the ITAR Agreements Guidelines; or
              (vi) The entity is a Dutch entity implementing the exemption at paragraph 3.7c of the ITAR Agreements Guidelines.
              (d) Definitions. (1) Substantive contacts include regular travel to countries in Country Group D:5; recent or continuing contact with agents, brokers, and nationals of such countries; continued demonstrated allegiance to such countries; maintenance of business relationships with persons from such countries; maintenance of a residence in such countries; receiving salary or other continuing monetary compensation from such countries; or acts otherwise indicating a risk of diversion.
              (2) Permanent and regular employee is an individual who:
              (i) Is permanently (i.e., for not less than a year) employed by an entity, or
              (ii) Is a contract employee who:
              (A) Is in a long-term contractual relationship with the company where the individual works at the entity's facilities or at locations assigned by the entity (such as a remote site or on travel);
              (B) Works under the entity's direction and control such that the company must determine the individual's work schedule and duties;
              (C) Works full time and exclusively for the entity; and

              (D) Executes a nondisclosure certification for the company that he or she will not disclose confidential information received as part of his or her work for the entity.

                Note to paragraph (d)(2):
                If the contract employee has been seconded to the entity by a staffing agency, then the staffing agency must not have any role in the work the individual performs other than to provide the individual for that work. The staffing agency also must not have access to any controlled “technology” or source code other than that authorized by the applicable regulations or a license.

              [81 FR 35605, June 3, 2016]

              Supplement No. 1 to Part 734 [Reserved]

              Pt. 734, Supp. No. 2
              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 foreign-made 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 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: U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th and Pennsylvania Avenue NW., Room 2099B, 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.
              [73 FR 56969, Oct. 1, 2008, as amended at 78 FR 13468, Feb. 28, 2013]

            Pt. 736
            PART 736—GENERAL PROHIBITIONS

              Sec.
              736.1
              Introduction.
              736.2
              General prohibitions and determination of applicability.
              Supplement No. 1 to Part 736—General Orders
              Supplement No. 2 to Part 736—Administrative Orders

              Authority:
              50 U.S.C. 4601 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, 3 CFR, 2004 Comp., p. 168; Notice of November 8, 2016, 81 FR 79379 (November 10, 2016); Notice of May 9, 2017, 82 FR 21909 (May 10, 2017); Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).

              Source:
              61 FR 12754, Mar. 25, 1996, unless otherwise noted.

              § 736.1
              Introduction.
              In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. A person may undertake transactions subject to the EAR without a license or other authorization, unless the regulations affirmatively state such a requirement. As such, if an export, reexport, or activity is subject to the EAR, the general prohibitions contained in this part and the License Exceptions specified in part 740 of the EAR must be reviewed to determine if a license is necessary. In the case of all exports from the United States, you must document your export as described in part 762 of the EAR regarding recordkeeping and clear your export through the U.S. Customs Service as described in part 758 of the EAR regarding export clearance requirements. Also note that for short supply controls all prohibitions and License Exceptions are in part 754 of the EAR.
              (a) In this part we tell you:
              (1) The facts that make your proposed export, reexport, or conduct subject to these general prohibitions, and
              (2) The ten general prohibitions.
              (b) Your obligations under the ten general prohibitions and under the EAR depend in large part upon the five types of information described in § 736.2(a) of this part and upon the general prohibitions described in § 736.2(b) of this part. The ten general prohibitions contain cross-references to other parts of the EAR that further define the breadth of the general prohibitions. For that reason, this part is not freestanding. In part 732, we provide certain steps you may follow in proper order to help you understand the general prohibitions and their relationship to other parts of the EAR.
              (c) If you violate any of these ten general prohibitions, or engage in other conduct contrary to the Export Administration Act, the EAR, or any order, license, License Exception, or authorization issued thereunder, as described in part 764 of the EAR regarding enforcement, you will be subject to the sanctions described in that part.

              § 736.2
              General prohibitions and determination of applicability.
              (a) Information or facts that determine the applicability of the general prohibitions. The following five types of facts determine your obligations under the ten general prohibitions and the EAR generally:
              (1) Classification of the item. The classification of the item on the Commerce Control List (see part 774 of the EAR);
              (2) Destination. The country of ultimate destination for an export or reexport (see parts 738 and 774 of the EAR concerning the Country Chart and the Commerce Control List);
              (3) End-user. The ultimate end user (see General Prohibition Four (paragraph (b)(4) of this section) and supplement no. 1 to part 764 of the EAR for references to persons with whom your transaction may not be permitted; see General Prohibition Five (Paragraph (b)(5) of this section) and part 744 for references to end-users for whom you may need an export or reexport license).
              (4) End-use. The ultimate end-use (see General Prohibition Five (paragraph (b)(5) of this section) and part 744 of the EAR for general end-use restrictions); and

              (5) Conduct. Conduct such as contracting, financing, and freight forwarding in support of a proliferation project as described in part 744 of the EAR.
              (b) General prohibitions. The following ten general prohibitions describe certain exports, reexports, and other conduct, subject to the scope of the EAR, in which you may not engage unless you either have a license from the Bureau of Industry and Security (BIS) or qualify under part 740 of the EAR for a License Exception from each applicable general prohibition in this paragraph. The License Exceptions at part 740 of the EAR apply only to General Prohibitions One (Exports and Reexports in the Form Received), Two (Parts and Components Reexports), and Three (Foreign-Produced Direct Product Reexports); however, selected License Exceptions are specifically referenced and authorized in part 746 of the EAR concerning embargo destinations and in § 744.2(c) of the EAR regarding nuclear end-uses.
              (1) General Prohibition One—Export and reexport of controlled items to listed countries (Exports and Reexports). You may not, without a license or License Exception, export any item subject to the EAR to another country or reexport any item of U.S.-origin if each of the following is true:
              (i) The item is controlled for a reason indicated in the applicable Export Control Classification Number (ECCN), and
              (ii) Export to the country of destination requires a license for the control reason as indicated on the Country Chart at part 738 of the EAR. (The scope of this prohibition is determined by the correct classification of your item and the ultimate destination as that combination is reflected on the Country Chart.) 1
                 Note that each License Exception described at part 740 of the EAR supersedes General Prohibition One if all terms and conditions of a given License Exception are met by the exporter or reexporter.

                  1 See part 738 of the EAR for selected controls that are not specified on the Country Chart.

              (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, foreign-made 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.
              (A) It incorporates more than the de minimis amount of controlled U.S. content, as defined in § 734.4 of the EAR concerning the scope of the EAR;
              (B) It is controlled for a reason indicated in the applicable ECCN; and
              (C) Its export to the country of destination requires a license for that control reason as indicated on the Country Chart. (The scope of this prohibition is determined by the correct classification of your foreign-made item and the ultimate destination, as that combination is reflected on the Country Chart.)
              (ii) Each License Exception described in part 740 of the EAR supersedes General Prohibition Two if all terms and conditions of a given License Exception are met by the exporter or reexporter.
              (3) General Prohibition Three—Reexport and export from abroad of the foreign-produced direct product of U.S. technology and software (Foreign-Produced Direct Product Reexports)—(i) Country scope of prohibition. You may not, without a license or license exception, reexport any item subject to the scope of this General Prohibition Three to a destination in Country Group D:1, E:1, or E:2 (See supplement no.1 to part 740 of the EAR). Additionally, you may not, without a license or license exception, reexport or export from abroad any ECCN 0A919 commodities subject to the scope of this General Prohibition Three to a destination in Country Group D:1, D:3, D:4, D:5, E:1, or E:2.

              (ii) Product scope of foreign-made items subject to prohibition. This General Prohibition 3 applies if an item meets either the Conditions defining the direct product of technology or the Conditions defining the direct product of a plant in paragraph (b)(3)(ii)(A) of this section:
              (A) Conditions defining direct product of technology. Foreign-made items are subject to this General Prohibition 3 if they meet both of the following conditions:
              (1) They are the direct product of technology or software that requires a written assurance as a supporting document for a license, as defined in paragraph (o)(3)(i) of supplement no. 2 to part 748 of the EAR, or as a precondition for the use of License Exception TSR at § 740.6 of the EAR, and
              (2) They are subject to national security controls as designated on the applicable ECCN of the Commerce Control List at part 774 of the EAR.
              (B) Conditions defining direct product of a plant. Foreign-made items are also subject to this General Prohibition 3 if they are the direct product of a complete plant or any major component of a plant if both of the following conditions are met:
              (1) Such plant or component is the direct product of technology that requires a written assurance as a supporting document for a license or as a precondition for the use of License Exception TSR in § 740.6 of the EAR, and
              (2) Such foreign-made direct products of the plant or component are subject to national security controls as designated on the applicable ECCN of the Commerce Control List at part 774 of the EAR.
              (iii) Country scope of prohibition for 9x515 or “600 series” items. You may not, except as provided in paragraphs (b)(3)(v) or (vi) of this section, reexport or export from abroad without a license any “600 series” item subject to the scope of this General Prohibition Three to a destination in Country Groups D:1, D:3, D:4, D:5, E:1, or E:2 (see supplement no. 1 to part 740 of the EAR). You may not, except as provided in paragraphs (b)(3)(v) or (vi) of this section, reexport or export from abroad without a license any 9x515 item subject to the scope of this General Prohibition Three to a destination in Country Groups D:5, E:1, or E:2 (see supplement no. 1 to part 740 of the EAR).
              (iv) Product scope of 9x515 and “600 series” items subject to this prohibition. This General Prohibition Three applies if a 9x515 or “600 series” item meets either of the following conditions:
              (A) Conditions defining direct product of “technology” or “software” for 9x515 and “600 series” items. Foreign-made 9x515 and “600 series” items are subject to this General Prohibition Three if the foreign-made items meet both of the following conditions:
              (1) They are the direct product of “technology” or “software” that is in the 9x515 or “600 series” as designated on the applicable ECCN of the Commerce Control List in supplement no. 1 to part 774 of the EAR; and
              (2) They are in the 9x515 or “600 series” as designated on the applicable ECCN of the Commerce Control List in part 774 of the EAR.
              (B) Conditions defining direct product of a plant for 9x515 and “600 series” items. Foreign-made 9x515 and “600 series” items are also subject to this General Prohibition Three if they are the direct product of a complete plant or any major component of a plant if both of the following conditions are met:
              (1) Such plant or major component is the direct product of 9x515 or “600 series” “technology” as designated on the applicable ECCN of the Commerce Control List in part 774 of the EAR, and
              (2) Such foreign-made direct products of the plant or major component are in the 9x515 or “600 series” as designated on the applicable ECCN of the Commerce Control List in part 774 of the EAR.
              (v) 9x515 and “600 series” foreign-produced direct products of U.S. “technology” or “software” subject to this General Prohibition Three do not require a license for reexport or export from abroad to the new destination unless the same item, if exported from the U.S. to the new destination would have been prohibited or made subject to a license requirement by part 742, 744, 746, or 764 of the EAR.
              (vi) License Exceptions. Each license exception described in part 740 of the EAR supersedes this General Prohibition Three if all terms and conditions of a given exception are met and the restrictions in § 740.2 do not apply.
              (4) General Prohibition Four (Denial Orders)—Engaging in actions prohibited by a denial order. (i) You may not take any action that is prohibited by a denial order issued under part 766 of the EAR, Administrative Enforcement Proceedings. These orders prohibit many actions in addition to direct exports by the person denied export privileges, including some transfers within a single country, either in the United States or abroad, by other persons. You are responsible for ensuring that any of your transactions in which a person who is denied export privileges is involved do not violate the terms of the order. Orders denying export privileges are published in the Federal Register when they are issued and are the legally controlling documents in accordance with their terms. BIS also maintains compilations of persons denied export privileges on its Web site at http://www.bis.doc.gov. BIS may, on an exceptional basis, authorize activity otherwise prohibited by a denial order. See § 764.3(a)(2) of the EAR.
              (ii) There are no License Exceptions described in part 740 of the EAR that authorize conduct prohibited by this General Prohibition Four.
              (5) General Prohibition Five—Export or reexport to prohibited end-uses or end-users (End-Use End-User). You may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.
              (6) General Prohibition Six—Export or reexport to embargoed destinations (Embargo). (i) You may not, without a license or License Exception authorized under part 746, export or reexport any item subject to the EAR to a country that is embargoed by the United States or otherwise made subject to controls as both are described at part 746 of the EAR.
              (ii) License Exceptions to General Prohibition Six are described in part 746 of the EAR, on Embargoes and Other Special Controls. Unless a License Exception or other authorization is authorized in part 746 of the EAR, the License Exceptions described in part 740 of the EAR are not available to overcome this general prohibition.
              (7) General Prohibition Seven—Support of proliferation activities (U.S. person proliferation activity)—(i) Support of proliferation activities (U.S. person proliferation activity). (A) If you are a U.S. person as that term is defined in § 744.6(c) of the EAR, you may not engage in any activities prohibited by § 744.6(a) or (b) of the EAR, which prohibits the performance, without a license from BIS, of certain financing, contracting, service, support, transportation, freight forwarding, or employment that you know will assist in certain proliferation activities described further in part 744 of the EAR. There are no License Exceptions to this General Prohibition Seven in part 740 of the EAR unless specifically authorized in that part.
              (B) If you are a U.S. person as that term is defined in § 744.6(c) of the EAR, you may not export a Schedule 1 chemical listed in supplement no. 1 to Part 745 without first complying with the provisions of §§ 742.18 and 745.1 of the EAR.
              (C) If you are a U.S. person as that term is defined in § 744.6(c) of the EAR, you may not export a Schedule 3 chemical listed in supplement no. 1 to part 745 to a destination not listed in supplement no. 2 to Part 745 without complying with the End-Use Certificate requirements in § 745.2 of the EAR that apply to Schedule 3 chemicals controlled for CW reasons in ECCN 1C350, ECCN 1C355, or ECCN 1C395.
              (8) General Prohibition Eight—In transit shipments and items to be unladen from vessels or aircraft (Intransit)—(i) Unlading and shipping in transit. You may not export or reexport an item through, or transit through a country listed in paragraph (b)(8)(ii) of this section, unless a license exception or license authorizes such an export or reexport directly to or transit through such a country of transit, or unless such an export or reexport is eligible to such a country of transit without a license.
              (ii) Country scope. This General Prohibition Eight applies to Armenia, Azerbaijan, Belarus, Cambodia, Cuba, Georgia, Kazakhstan, Kyrgyzstan, Laos, Mongolia, North Korea, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam.
              (9) General Prohibition Nine—Violation of any order, terms, and conditions (Orders, Terms, and Conditions). You may not violate terms or conditions of a license or of a License Exception issued under or made a part of the EAR, and you may not violate any order issued under or made a part of the EAR. There are no License Exceptions to this General Prohibition Nine in part 740 of the EAR. Supplements Nos. 1 and 2 to this part provide for certain General Orders and Administrative Orders.
              (10) General Prohibition Ten—Proceeding with transactions with knowledge that a violation has occurred or is about to occur (Knowledge Violation to Occur). You may not sell, transfer, export, reexport, finance, order, buy, remove, conceal, store, use, loan, dispose of, transport, forward, or otherwise service, in whole or in part, any item subject to the EAR and exported or to be exported with knowledge that a violation of the Export Administration Regulations, the Export Administration Act or any order, license, License Exception, or other authorization issued thereunder has occurred, is about to occur, or is intended to occur in connection with the item. Nor may you rely upon any license or License Exception after notice to you of the suspension or revocation of that license or exception. There are no License Exceptions to this General Prohibition Ten in part 740 of the EAR.
              [61 FR 12754, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 736.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              Pt. 736, Supp. No. 1
              Supplement No. 1 to Part 736—General Orders
              (a) General Order No. 1:
              General Order No. 1 of September 16, 1998; Establishing a 24-month validity period on reexport authorizations issued without a validity period and revoking those exceeding that period.
              (1) Reexport authorizations issued within 24-months of the General Order. All reexport authorizations issued with no validity period within the 24-months preceding September 16, 1998 shall be deemed to have an expiration date which shall be the date 24-months from the date of issuance of the reexport authorization or November 16, 1998, whichever is longer.
              (2) Reexport authorizations issued before the 24-month period preceding the General Order. For reexport authorizations issued with no validity period before the 24-month period preceding September 16, 1998:
              (i) Effective September 16, 1998, all such outstanding reexport authorizations for terrorist-supporting countries (see parts 742 and 746 of the EAR) are revoked.
              (ii) Effective November 16, 1998, all other such outstanding reexport authorizations are revoked.
              (3) Extensions. If necessary, you may request extensions of such authorizations according to procedures set forth in § 750.7(g) of the EAR.
              (4) Specific Notice from BIS. If you have received, or should you receive, specific notice from BIS with regard to a reexport authorization covered by this General Order, informing you of a revocation, suspension, or revision (including validity period) of any such reexport authorization, then the terms of that specific notice will be controlling.
              (5) Definition of “authorization”. The term “authorization” as used in this General Order encompasses the range of reexport authorizations granted by BIS, which includes licenses, individual letters, and other types of notifications.
              (b) General Order No. 2:

              General Order No. 2; section 5(b) of the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003 (SAA) gives the President authority to waive the application of certain prohibitions set forth in the SAA if the President determines that it is in the national security interest of the United States to do so. The President made such a determination in Executive Order 13338, finding that it was “in the national security interest of the United States to waive application of subsection 5(a)(1) and 5(a)(2)(A) of the SAA so as to permit the exportation or reexportation of certain items as specified in the Department of Commerce's General Order No. 2.” The President's reference to General Order No. 2 addresses applications to export and reexport the following items, which are considered on a case-by-case basis as opposed to the general policy of denial set forth in section 746.9 of the Regulations: Items in support of activities, diplomatic or otherwise, of the United States Government (to the extent that regulation of such exportation or reexportation would not fall within the President's constitutional authority to conduct the nation's foreign affairs); medicine (on the CCL) and medical devices (both as defined in part 772 of the EAR); parts and components intended to ensure the safety of civil aviation and the safe operation of commercial passenger aircraft; aircraft chartered by the Syrian Government for the transport of Syrian Government officials on official Syrian Government business; telecommunications equipment and associated computers, software and technology; items in support of United Nations operations in Syria; and items necessary for the support of the Syrian people, including, but not limited to, items related to water supply and sanitation, agricultural production and food processing, power generation, oil and gas production, construction and engineering, transportation, and educational infrastructure. The total dollar value of each approved license for aircraft parts for flight safety normally will be limited to no more than $2 million over the 24-month standard license term, except in the case of complete overhauls.

                Note to General Order No. 2:
                The controls for exports and reexports to Syria are set forth in § 746.9 of the EAR.

              (c) General Order No. 3:
              General Order No. 3 of July 22, 2015. Certain licenses issued by BIS prior to July 22, 2015 contain conditions that restrict the export, reexport, or transfer (in-country) to or within Country Group E:1 as specified in supplement no. 1 to part 740 of the EAR. At the time those license were issued, Cuba was in Country Group E:1. Many of those restrictions were intended to apply to Cuba, not only as a State Sponsor of Terrorism but also as a country subject to unilateral embargo. However, BIS did not always list both Country Groups E:1 and E:2 in license conditions because, at the time, doing so would have been redundant. However, with the rescission of Cuba's designation as a State Sponsor of Terrorism and resultant removal from Country Group E:1, continuing those conditions with respect to Cuba is consistent with the embargo. Accordingly, all conditions that apply to Country Group E:1 on licenses issued prior to July 22, 2015 that are in effect on that date, are revised to apply to Country Groups E:1 and E:2 as specified in supplement no. 1 to part 740 of the EAR. Licensees who seek authorization for transactions that are affected by this General Order No. 3 may submit license applications that refer to General Order No. 3 and explain the reason for the request in Block 24 of the application. All license applications involving Cuba are reviewed pursuant to the licensing policy in § 746.2(b) of the EAR. The request should provide any available information in support of the argument that the transaction would be consistent with the licensing policy in § 746.2(b) of the EAR.
              (d) General Order No. 4 [Reserved]
              (e) General Order No. 5:
              General Order No. 5 of April 16, 2013; Authorization for Items the President Determines No Longer Warrant Control under the United States Munitions List (USML).
              (1) Continued use of DDTC approvals from the Department of State's Directorate of Defense Trade Controls (DDTC) for items that become subject to the EAR. Items the President has determined no longer warrant control under the USML will become subject to the EAR as published final rules that transfer the items to the CCL become effective. DDTC licenses, agreements, or other approvals that contain items transitioning from the USML to the CCL and that are issued prior to the effective date of the final rule transferring such items to the CCL may continue to be used in accordance with the Department of State's final rule, Amendments to the International Traffic in Arms Regulations: Initial Implementation of Export Control Reform, published on April 16, 2013 in the Federal Register.

              (2) BIS authorization.

              (i) Where continued use of DDTC authorization is not or is no longer an available option, or a holder of an existing DDTC authorization returns or terminates that authorization, any required authorization to export, reexport, or transfer (in-country) a transitioned item on or after the effective date of the applicable final rule must be obtained under the EAR. Following the publication date and prior to the effective date of a final rule moving an item from the USML to the CCL, applicants may submit license applications to BIS for authorization to export, reexport, or transfer (in-country) the transitioning item. BIS will process the license applications in accordance with § 750.4 of the EAR, hold the license application without action (HWA) if necessary, and issue a license, if approved, to the applicant no sooner than the effective date of the final rule transitioning the items to the CCL.
              (ii) Following the effective date of a final rule moving items from the USML to the CCL, exporters, reexporters, and transferors of such items may return DDTC licenses in accordance with § 123.22 of the ITAR or terminate Technical Assistance Agreements, Manufacturing License Agreements, or Warehouse and Distribution Agreements in accordance with § 124.6 of the ITAR and thereafter export, reexport, or transfer (in-country) such items under applicable provisions of the EAR, including any applicable license requirements. No transfer (in-country) may be made of an item exported under a DDTC authorization containing provisos or other limitations without a license issued by BIS unless (i) the transfer (in-country) is authorized by an EAR license exception and the terms and conditions of the License Exception have been satisfied, or (ii) no license would otherwise be required under the EAR to export or reexport the item to the new end user.
              (3) Prior commodity jurisdiction determinations. If the U.S. State Department has previously determined that an item is not subject to the jurisdiction of the ITAR and the item was not listed in a then existing “018” series ECCN (for purposes of the “600 series” ECCNs) or in a then existing ECCN 9A004.b or related software or technology ECCN (for purposes of the 9x515 ECCNs), then the item is per se not within the scope of a “600 series” ECCN or a 9x515 ECCN. If the item was not listed elsewhere on the CCL at the time of such determination (i.e., the item was designated EAR99), the item shall remain designated as EAR99 unless specifically enumerated by BIS or DDTC in an amendment to the CCL or to the USML, respectively.
              (4) Voluntary Self-Disclosure. Parties to transactions involving transitioning items are cautioned to monitor closely their compliance with the EAR and the ITAR. Should a possible or actual violation of the EAR, or of any license or authorization issued thereunder, be discovered, the person or persons involved are strongly encouraged to submit a Voluntary Self-Disclosure to the Office of Export Enforcement, in accordance with § 764.5 of the EAR. Permission from the Office of Exporter Services, in accordance with § 764.5(f) of the EAR, to engage in further activities in connection with that item may also be necessary. Should a possible or actual violation of the ITAR, or of any license or authorization issued thereunder, be discovered, the person or persons involved are strongly encouraged to submit a Voluntary Disclosure to DDTC, in accordance with § 127.12 of the ITAR. For possible or actual violations of both the EAR and ITAR, the person or persons involved are strongly encouraged to submit disclosures to both BIS and DDTC, indicating to each agency that they also have made a disclosure to the other agency.
              [78 FR 13468, Feb. 28, 2013, as amended at 78 FR 22707, Apr. 16, 2013; 78 FR 43973, July 23, 2013; 78 FR 61745, Oct. 3, 2013; 79 FR 32623, June 5, 2014; 79 FR 77865, Dec. 29, 2014; 80 FR 2289, Jan. 16, 2015; 80 FR 43318, July 22, 2015]

              Pt. 736, Supp. No. 2
              Supplement No. 2 to Part 736—Administrative Orders

                Administrative Order One: Disclosure of License Issuance and Other Information. Consistent with section 12(c) of the Export Administrati on Act of 1979, as amended, information obtained by the U.S. Department of Commerce for the purpose of consideration of or concerning license applications, as well as related information, will not be publicly disclosed without the approval of the Secretary of Commerce. Electronic Export Information (EEI) filings via the Automated Export System (AES) are also exempt from public disclosure, except with the approval of the Secretary of Commerce, in accordance with § 301(g) of Title 13, United States Code.

                Administrative Order Two: Conduct of Business and Practice in Connection with Export Control Matters.

              (a) Exclusion of persons guilty of unethical conduct or not possessing required integrity and ethical standards.
              (1) Who may be excluded. Any person, whether acting on his own behalf or on behalf of another, who shall be found guilty of engaging in any unethical activity or who shall be demonstrated not to possess the required integrity and ethical standards, may be excluded from (denied) export privileges on his own behalf, or may be excluded from practice before BIS on behalf of another, in connection with any export control matter, or both, as provided in part 764 of the EAR.
              (2) Grounds for exclusion. Among the grounds for exclusion are the following:
              (i) Inducing or attempting to induce by gifts, promises, bribes, or otherwise, any officer or employee of BIS or any customs or post office official, to take any action with respect to the issuance of licenses or any other aspects of the administration of the Export Administration Act, whether or not in violation of any regulation;
              (ii) Offering or making gifts or promises thereof to any such officer or employee for any other reason;
              (iii) Soliciting by advertisement or otherwise the handling of business before BIS on the representation, express or implied, that such person, through personal acquaintance or otherwise, possesses special influence over any officer or employee of BIS;
              (iv) Charging, or proposing to charge, for any service performed in connection with the issuance of any license, any fee wholly contingent upon the granting of such license and the amount or value thereof. This provision will not be construed to prohibit the charge of any fee agreed to by the parties; provided that the out-of-pocket expenditures and the reasonable value of the services performed, whether or not the license is issued and regardless of the amount thereof, are fairly compensated; and
              (v) Knowingly violating or participating in the violation of, or an attempt to violate, any regulation with respect to the export of commodities or technical data, including the making of or inducing another to make any false representations to facilitate any export in violation of the Export Administration Act or any order or regulation issued thereunder.
              (3) Definition. As used in this Administrative Order, the terms “practice before BIS” and “appear before BIS” include:
              (i) The submission on behalf of another of applications for export licenses or other documents required to be filed with BIS, or the execution of the same;

              (ii) Conferences or other communications on behalf of another with officers or employees of BIS for the purpose of soliciting or expediting approval by BIS of applications for export licenses or other documents, or with respect to quotas, allocations, requirements or other export control actions, pertaining to matters within the jurisdiction of BIS;
              (iii) Participating on behalf of another in any proceeding pending before BIS;
              (iv) Submission on behalf of another of a license or other export control document to U.S. Customs and Border Protection (CBP); and
              (v) Reporting on behalf of another Electronic Export Information via the Automated Export System (AES) to CBP.
              (4) Proceedings. All proceedings under this Administrative Order shall be conducted in the same manner as provided in part 766 of the EAR.
              (b) Employees and former employees. Persons who are or at any time have been employed on a full-time or part-time, compensated or uncompensated, basis by the U.S. Government are subject to the provisions of 18 U.S.C. 203, 205, and 207 (Pub. L. 87-849, 87th Congress) in connection with representing a private party or interest before the U.S. Department of Commerce in connection with any export control matter.
              [61 FR 12754, Mar. 25, 1996, as amended at 70 FR 54628, Sept. 16, 2005; 70 FR 62238, Oct. 31, 2005; 79 FR 4615, Jan. 29, 2014; 79 FR 32623, June 5, 2014]

            Pt. 738
            PART 738—COMMERCE CONTROL LIST OVERVIEW AND THE COUNTRY CHART

              Sec.
              738.1
              Introduction.
              738.2
              Commerce Control List (CCL) structure.
              738.3
              Commerce Country Chart structure.
              738.4
              Determining whether a license is required.
              Supplement No. 1 to Part 738—Commerce Country Chart

              Authority:
              Pub. L. 115-232, 132 Stat. 2208 (50 U.S.C. 4801 et seq.); 50 U.S.C. 4601 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; 42 U.S.C. 2139a; 15 U.S.C. 1824a; 50 U.S.C. 4305; 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 August 8, 2018, 83 FR 39871 (August 13, 2018).

              § 738.1
              Introduction.
              (a) Commerce Control List scope. (1) In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. The Bureau of Industry and Security (BIS) maintains the Commerce Control List (CCL) within the Export Administration Regulations (EAR), which includes items (i.e., commodities, software, and technology) subject to the export licensing authority of BIS. The CCL does not include those items exclusively controlled for export or reexport by another department or agency of the U.S. Government. In instances where agencies other than the Department of Commerce administer controls over related items, entries in the CCL contain a reference to these controls.
              (2) The CCL is contained in supplement no. 1 to part 774 of the EAR. Supplement no. 2 to part 774 of the EAR contains the General Technology and Software Notes relevant to entries contained in the CCL.
              (3) Items that warrant control for export or reexport but currently are not permanently classified on the CCL. Items subject to temporary CCL controls are classified under the ECCN 0Y521 series (i.e., 0A521, 0B521, 0C521, 0D521, and 0E521) pursuant to § 742.6(a)(7) of the EAR while a determination is made as to whether classification under a revised or new ECCN, or an EAR99 designation, is appropriate.
              (b) Commerce Country Chart scope. BIS also maintains the Commerce Country Chart. The Commerce Country Chart, located in supplement no. 1 to part 738, contains licensing requirements based on destination and Reason for Control. In combination with the CCL, the Commerce Country Chart allows you to determine whether a license is required for items on the CCL to any country in the world.
              [61 FR 12756, Mar. 25, 1996, as amended at 77 FR 22198, Apr. 13, 2012]

              § 738.2
              Commerce Control List (CCL) structure.
              (a) Categories. The CCL is divided into 10 categories, numbered as follows:

                0—Nuclear Materials, Facilities and Equipment and Miscellaneous
                1—Materials, Chemicals, “Microorganisms,” and Toxins
                2—Materials Processing
                3—Electronics
                4—Computers
                5—Telecommunications and Information Security
                6—Lasers and Sensors
                7—Navigation and Avionics
                8—Marine
                9—Aerospace and Propulsion

              (b) Groups. Within each category, items are arranged by group. Each category contains the same five groups. Each Group is identified by the letters A through E, as follows:

                A—Equipment, Assemblies and Components
                B—Test, Inspection and Production Equipment
                C—Materials
                D—Software
                E—Technology

              (c) Order of review. The CCL includes a supplement no. 4 to part 774—Commerce Control List Order of Review. This supplement establishes the steps (i.e., the order of review) that should be followed in classifying items that are “subject to the EAR.”
              (d) Entries—(1) Composition of an entry. Within each group, individual items are identified by an Export Control Classification Number (ECCN). Each number consists of a set of digits and a letter. The first digit identifies the general category within which the entry falls (e.g., 3A001). The letter immediately following this first digit identifies under which of the five groups the item is listed (e.g., 3 A001). The second digit differentiates individual entries by identifying the type of controls associated with the items contained in the entry (e.g., 3A001). Listed below are the Reasons for Control associated with this second digit.

                0: National Security reasons (including Dual Use and Wassenaar Arrangement Munitions List) and Items on the NSG Dual Use Annex and Trigger List
                1: Missile Technology reasons
                2: Nuclear Nonproliferation reasons
                3: Chemical & Biological Weapons reasons
                5: Items warranting national security or foreign policy controls at the determination of the Department of Commerce.
                6: “600 series” controls items because they are items on the Wassenaar Arrangement Munitions List (WAML) or formerly on the U.S. Munitions List (USML).
                9: Anti-terrorism, Crime Control, Regional Stability, Short Supply, UN Sanctions, etc.

              (i) Since Reasons for Control are not mutually exclusive, numbers are assigned in order of precedence. As an example, if an item is controlled for both National Security and Missile Technology reasons, the entry's third alphanumeric character will be a “0”. If the item is controlled only for Missile Technology the third alphanumeric character will be “1”.

              (ii) The numbers in either the second or third digit (e.g., 3A001) serve to differentiate between multilateral and unilateral entries. An entry with the number “9” as the second digit, identifies the entire entry as controlled for a unilateral concern (e.g., 2B991 for anti-terrorism reasons). If the number “9” appears as the third digit, the item is controlled for unilateral purposes based on a proliferation concern (e.g., 2A290 is controlled for unilateral purposes based on nuclear nonproliferation concerns).
              (iii) The last digit within each entry (e.g., 3A001) is used for the sequential numbering of ECCNs to differentiate between entries on the CCL.
              (iv) Last two characters in a “600 series” ECCN. The last two characters of each “600 series” ECCN generally track the Wassenaar Arrangement Munitions List (WAML) categories for the types of items at issue. The WAML ML21 (“software”) and ML22 (“technology”) are, however, included in D (“software”) and E (“technology”) CCL product groups to remain consistent with the structure of the CCL.
              (2) Reading an ECCN. An ECCN is made up of four sections, the “Heading,” “License Requirements,” “License Exceptions,” and “List of Items Controlled” sections. A brief description of each section and its use follows:
              (i) Heading. A description of the items controlled is provided next to each ECCN. In certain ECCNs, the description is a summary and will direct you to “see List of Items Controlled” for a complete list of items classified under those respective ECCNs. The “Items” paragraph in the List of Items Controlled section will describe all of the items that the ECCN controls for the portions of the heading that precede the “see List of Items Controlled” phrase. Portions of the heading that follow the phrase are complete descriptions of the items controlled by that portion of the heading. If “see List of Items Controlled” appears at the end of the heading, the “Items” paragraph in the List of Items Controlled section is the exclusive, complete list of the items the ECCN controls.

              (ii) License Requirements. This section contains a separate line identifying all possible Reasons for Control in order of precedence, and two columns entitled “Control(s)” and “Country Chart”.

              (A) The “Controls” header identifies all applicable Reasons for Control, in order of restrictiveness, and to what extent each applies (e.g., to the entire entry or only to certain subparagraphs). Those requiring licenses for a larger number of countries and/or items are listed first. As you read down the list the number of countries and/or items requiring a license declines. Since Reasons for Control are not mutually exclusive, items controlled within a particular ECCN may be controlled for more than one reason. The following is a list of all possible Reasons for Control:

                AT Anti-Terrorism
                CB Chemical & Biological Weapons
                CC Crime Control
                CW Chemical Weapons Convention
                EI Encryption Items
                FC Firearms Convention
                MT Missile Technology
                NS National Security
                NP Nuclear Nonproliferation
                RS Regional Stability
                SS Short Supply
                UN United Nations Embargo
                SI Significant Items
                SL Surreptitious Listening

              (B) The “Country Chart” header identifies, for each applicable Reason for Control, a column name and number (e.g., CB Column 1). These column identifiers are used to direct you from the CCL to the appropriate column identifying the countries requiring a license. Consult part 742 of the EAR for an indepth discussion of the licensing requirements and policies applicable to each Country Chart column.
              (iii) License Exceptions. This section provides a brief eligibility statement for each ECCN-driven License Exception that may be applicable to your transaction, and should be consulted only AFTER you have determined a license is required based on an analysis of the entry and the Country Chart. The brief eligibility statement in this section is provided to assist you in deciding which ECCN-driven License Exception related to your particular item and destination you should explore prior to submitting an application. The term “Yes” (followed in some instances by the scope of Yes) appears next to each available ECCN-driven License Exception. Some ECCNs have License Exception STA exclusion paragraphs. These paragraphs identify items for which the License Exception STA provisions in § 740.20(c)(2) of the EAR may not be used, but do not otherwise affect License Exception STA availability. The term “N/A” will be noted for License Exceptions that are not available within a particular entry. In some “600 series” ECCNs, the STA license exception paragraph or a note to the License Exceptions section contains additional information on the availability of License Exception STA for that ECCN. If one or more License Exceptions appear to apply to your transaction, you must consult part 740 of the EAR to review the conditions and restrictions applicable to each available License Exception. The list of License Exceptions contained within each ECCN is not an all-exclusive list. Other License Exceptions, not based on particular ECCNs, may be available. Consult part 740 of the EAR to determine eligibility for non-ECCN-driven License Exceptions.
              (iv) List of Items Controlled—(A) Related definitions. This header identifies, where appropriate, definitions or parameters that apply to all items controlled by the entry. The information provided in this section is unique to the entry, and hence not listed in the definitions contained in part 772 of the EAR.
              (B) Related controls. If another U.S. government agency or department has export licensing authority over items related to those controlled by an entry, a statement is included identifying the agency or department along with the applicable regulatory cite. An additional cross-reference may be included in instances where the scope of controls differs between a CCL entry and its corresponding entry on list maintained by the European Union. This information is provided to assist readers who use both lists.
              (C) Items. This paragraph describes the relationship between the “items” paragraph and ECCN headings and will assist your understanding as you classify items on the CCL. When the heading contains the phrase “see List of Items Controlled,” the portion of the heading preceding that phrase is only a summary of the items controlled by the ECCN and the “items” paragraph contains an exclusive list of items described in the heading. Paragraphs (d)(2)(iv)(C)(1), (2) and (3) of this section provide examples of the three different uses of the phrase “(see List of Items Controlled)” in ECCN headings. Each heading on the CCL uses one of these three structures. Understanding the relationship between the heading and the “items” paragraph is important when classifying items that are “subject to the EAR” on the CCL.
              (1) “(See List of Items Controlled)” is at the end of the ECCN heading. An example of an ECCN where all of the heading text precedes the phrase “(see List of Items Controlled)” is ECCN 8A002 Marine systems, equipment, “parts” and “components,” as follows (see List of Items Controlled). ECCNs 1A001, 3A001, 6A001, 7A004 and 9A012 are other examples where all of the heading text precedes the phrase “(see List of Items Controlled).” In these types of headings, the items paragraphs must be reviewed to determine whether your item is contained within the heading and classified under that ECCN.
              (2) “(See List of Items Controlled)” is in the middle of the ECCN heading. If the phrase “(see List of Items Controlled)” appears in the middle of the ECCN heading, then all portions of the heading that follow the phrase “(see List of Items Controlled)” will list items controlled in addition to the list in the “items” paragraph. An example of such a heading is ECCN 2B992 Non-“numerically controlled” machine tools for generating optical quality surfaces, (see List of Items Controlled) and “specially designed” “parts” and “components” therefor. Under the ECCN 2B992 example, the “items” paragraph must be reviewed to determine whether your item is contained within the first part of the heading (“non-'numerically controlled' machine tools for generating optical quality surfaces”) and classified under 2B992. The second part of the ECCN 2B992 heading (“and 'specially designed' 'parts' and 'components' therefor”) contains the exclusive list described in the heading. ECCNs 1A006, 3B992, 4A001, 6A006 and 7A001 are other examples where the phrase “(see List of Items Controlled)” appears in the middle of the ECCN heading.
              (3) ECCNs that do not use the phrase “(see List of Items controlled).” When all items classified in the ECCN are listed in the heading, a sentence is generally included in the “items” paragraph to direct you to the heading. An example of such a heading is ECCN 4E980 “Technology” for the “development,” “production” or “use” of commodities controlled by 4A980. ECCNs 0A982, 5D101, 8D001 and 9A002 are other examples where the heading is the exclusive description of the items classified under those respective ECCNs.
              [61 FR 112756, Mar. 25, 1996, as amended at 61 FR 68579, Dec. 30, 1996; 62 FR 25456, May 9, 1997; 64 FR 17970, Apr. 13, 1999; 27141, May 18, 1999; 70 FR 54628, Sept. 16, 2005; 71 FR 20883, Apr. 24, 2006; 71 FR 67035, Nov. 20, 2006; 72 FR 43531, Aug. 6, 2007; 76 FR 35286, June 16, 2011; 78 FR 22708, Apr. 16, 2013; 78 FR 61900, Oct. 4, 2013; 79 FR 77866, Dec. 29, 2014; 81 FR 85144, Nov. 25, 2016; 82 FR 61156, Dec. 27, 2017]

              § 738.3
              Commerce Country Chart structure.
              (a) Scope. The Commerce Country Chart allows you to determine the Commerce Control List (CCL) export and reexport license requirements for most items listed on the CCL. Such license requirements are based on the Reasons for Control listed in the Export Control Classification Number (ECCN) that applies to the item. Some ECCNs, however, impose license requirements either without reference to a reason for control code that is listed on the Commerce Country Chart, or in addition to such a reference. Those ECCNs may state their license requirements in full in their “Reasons for Control” sections or they may refer the reader to another provision of the EAR for license requirement information. In addition, some ECCNs do not impose license requirements, but refer the reader to the regulations of another government agency that may impose license requirements on the items described in that ECCN.

              (1) ECCNs 0A983, 5A001.f.1, 5A980, 5D001 (for 5A001.f.1, or for 5E001.a (for 5A001.f.1 or for 5D001.a (for 5A001.f.1))), 5D980, 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1)) and 5E980. A license is required for all destinations for items controlled under these entries. For items controlled by 0A983, 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1)) and 5E980, no license exceptions apply. For items controlled by 5A001.f.1, 5A980, 5D001 (for 5A001.f.1 or for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1))) and 5D980, License Exception GOV may apply if your item is consigned to and for the official use of an agency of the U.S. Government (see § 740.2(a)(3)). If your item is controlled by 0A983, 5A001.f.1, 5A980, 5D001 (for 5A001.f.1 or for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1))), 5D980, 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1)) or 5E980 you should proceed directly to part 748 of the EAR for license application instructions and § 742.11 or § 742.13 of the EAR for information on the licensing policy relevant to these types of applications.
              (2) [Reserved]
              (b) Countries. The first column of the Country Chart lists countries in alphabetical order. There are a number of destinations that are not listed in the Country Chart contained in supplement no. 1 to part 738. If your destination is not listed on the Country Chart and such destination is a territory, possession, dependency or department of a country included on the Country Chart, the EAR accords your destination the same licensing treatment as the country of which it is a territory, possession, dependency or department. For example, if your destination is the Cayman Islands, a dependent territory of the United Kingdom, refer to the United Kingdom on the Country Chart for licensing requirements. In addition, if your destination is Liechtenstein, which serves as one territory with Switzerland for purposes of the EAR, refer to Switzerland on the Country Chart for licensing requirements.
              (c) Columns. Stretching out to the right are horizontal headers identifying the various Reasons for Control. Under each Reason for Control header are diagonal column identifiers capping individual columns. Each column identifier consists of the two letter Reason for Control and a column number. (e.g., CB Column 1). The column identifiers correspond to those listed in the “Country Chart” header within the “License Requirements” section of each ECCN.
              (d) Cells. The symbol “X” is used to denote licensing requirements on the Country Chart. If an “X” appears in a particular cell, transactions subject to that particular Reason for Control/Destination combination require a license. There is a direct correlation between the number of “X”s applicable to your transaction and the number of licensing reviews your application will undergo.
              [61 FR 12756, Mar. 25, 1996, as amended at 63 FR 42228, Aug. 7, 1998; 65 FR 55178, Sept. 13, 2000; 70 FR 8249, Feb. 18, 2005; 71 FR 67035, Nov. 20, 2006; 76 FR 54930, Sept. 6, 2011; 76 FR 70339, Nov. 14, 2011; 77 FR 39367, July 2, 2012; 78 FR 37382, June 20, 2013]

              § 738.4
              Determining whether a license is required.
              (a) Using the CCL and the Country Chart—(1) Overview. Once you have determined that your item is classified under a specific ECCN, you must use information contained in the “License Requirements” section of that ECCN in combination with the Country Chart to decide whether a license is required. Note that not all license requirements set forth under the “License Requirements” section of an ECCN refer you to the Commerce Country Chart, but in some cases this section will contain references to a specific section in the EAR for license requirements. In such cases, this section would not apply.
              (2) License decision making process. The following decision making process must be followed in order to determine whether a license is required to export or reexport a particular item to a specific destination:
              (i) Examine the appropriate ECCN in the CCL. Is the item you intend to export or reexport controlled for a single Reason for Control?
              (A) If yes, identify the single Reason for Control and the relevant Country Chart column identifier (e.g., CB Column 1).
              (B) If no, identify the Country Chart column identifier for each applicable Reason for Control (e.g., NS Column 1, NP Column 1, etc.).
              (ii) Review the Country Chart. With each of the applicable Country Chart Column identifiers noted, turn to the Country Chart (supplement no. 1 to part 738). Locate the correct Country Chart column identifier on the diagonal headings, and determine whether an “X” is marked in the cell next to the country in question for each Country Chart column identified in the applicable ECCN. If your item is subject to more than one reason for control, repeat this step using each unique Country Chart column identifier.
              (A) If yes, a license application must be submitted based on the particular reason for control and destination, unless a License Exception applies. If “Yes” is noted next to any of the listed License Exceptions, you should consult part 740 of the EAR to determine whether you can use any of the available ECCN-drvien License Exceptions to effect your shipment, rather than applying for a license. Each affirmative license requirement must be overcome by a License Exception. If you are unable to qualify for a License Exception based on each license requirement noted on the Country Chart, you must apply for a license. Note that other License Exceptions, not related to the CCL, may also apply to your transaction (See part 740 of the EAR).
              (B) If no, a license is not required based on the particular Reason for Control and destination. Provided that General Prohibitions Four through Ten do not apply to your proposed transaction and the License Requirement section does not refer you to any other part of the EAR to determine license requirements. For example, any applicable encryption classification requirements described in § 740.17(b) of the EAR must be met for certain mass market encryption items to affect your shipment using the symbol “NLR.” Proceed to parts 758 and 762 of the EAR for information on export clearance procedures and recordkeeping requirements. Note that although you may stop after determining a license is required based on the first Reason for Control, it is best to work through each applicable Reason for Control. A full analysis of every possible licensing requirement based on each applicable Reason for Control is required to determine the most advantageous License Exception available for your particular transaction and, if a license is required, ascertain the scope of review conducted by BIS on your license application.
              (b) Sample analysis using the CCL and Country Chart—(1) Scope. The following sample entry and related analysis is provided to illustrate the type of thought process you must complete in order to determine whether a license is required to export or reexport a particular item to a specific destination using the CCL in combination with the Country Chart.
              (2) Sample CCL entry.

                  2A000: Entry heading.

                  License Requirements

                  Reason for Control: NS, NP, AT

                    Control(s)
                    Country chart (see supp. No. 1 to part 738).

                    NS applies to entire entry
                    NS Column 2.

                    NP applies to 2A000.b
                    NP Column 1.

                    AT applies to entire entry
                    AT Column 1.

                  List Based License Exceptions (See Part 740 for a description of all license exceptions)

                  LVS: $5,000.

                  GBS: Yes.

                  CIV: N/A.

                  List of Items Controlled

                  Related Controls: N/A.

                  Related Definitions: N/A.

                  Items: a. Having x.
                b. Having z.

              (3) Sample analysis. After consulting the CCL, I determine my item, valued at $10,000, is classified under ECCN 2A000.a. I read that the entire entry is controlled for national security, and anti-terrorism reasons. Because my item is classified under paragraph .a, and not .b, I understand that though nuclear nonproliferation controls apply to a portion of the entry, they do not apply to my item. I note that the appropriate Country Chart column identifiers are NS Column 2 and AT Column 1. Turning to the Country Chart, I locate my specific destination, Chad, and see that an “X” appears in the NS Column 2 cell for Chad, but not in the AT Column 1 cell. I understand that a license is required, unless my transaction qualifies for a License Exception. From the License Exception LVS value listed in the entry, I know immediately that my proposed transaction exceeds the value limitation associated with LVS. Noting that License Exception GBS is “Yes” for this entry, I turn to part 740 of the EAR to review the provisions related to use of GBS.
              [61 FR 12756, Mar. 25, 1996, as amended at 67 FR 38861, June 6, 2002; 70 FR 54628, Sept. 16, 2005; 73 FR 57503, Oct. 3, 2008; 74 FR 52883, Oct. 15, 2009; 75 FR 36490, June 25, 2010; 78 FR 61901, Oct. 4, 2013; 79 FR 32623, June 5, 2014; 81 FR 64668, Sept. 20, 2016; 83 FR 38020, Aug. 3, 2018]

              Pt. 738, Supp. No. 1
              Supplement No. 1 to Part 738—Commerce Country Chart

                [Reason for control]

                  Countries
                  Chemical and biological weapons
                  CB 1
                  CB 2
                  CB 3
                  Nuclear nonproliferation
                  NP 1
                  NP 2
                  Nationalsecurity

                  NS 1
                  NS 2
                  Missile tech
                  MT 1
                  Regionalstability

                  RS 1
                  RS 2
                  Firearms convention
                  FC 1
                  Crime control
                  CC 1
                  CC 2
                  CC 3
                  Anti-terrorism
                  AT 1
                  AT 2

                  Afghanistan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Albania 2 3

                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  Algeria
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Andorra
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Angola
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Antigua and Barbuda
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Argentina
                  X

                  X

                  X
                  X

                  X
                  X

                  X

                  Armenia
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Aruba
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Australia 3

                  X

                  X

                  X
                  X

                  Austria 3 4

                  X

                  X

                  X
                  X

                  X

                  X

                  Azerbaijan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Bahamas, The
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Bahrain
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Bangladesh
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Barbados
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Belarus
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Belgium 3

                  X

                  X

                  X
                  X

                  Belize
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Benin
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Bhutan
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Bolivia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Bosnia and Herzegovina
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Botswana
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Brazil
                  X
                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Brunei
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Bulgaria 3

                  X

                  X

                  X
                  X

                  Burkina Faso
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Burma
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Burundi
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Cambodia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Cameroon
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Canada
                  X

                  X

                  Cape Verde
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Central African Republic
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Chad
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Chile
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  China
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Colombia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Comoros
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Congo (Democratic Republic of the) 1

                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Congo (Republic of the)
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Costa Rica
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Cote d'Ivoire
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Croatia 3

                  X

                  X

                  X
                  X

                  Cuba
                  See part 746 of the EAR to determine whether a license is required in order to export or reexport to this destination.

                  Curaçao
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Cyprus 2 3 4

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Czech Republic 3

                  X

                  X

                  X
                  X

                  Denmark 3

                  X

                  X

                  X
                  X

                  Djibouti
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Dominica
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Dominican Republic
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Ecuador
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Egypt
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  El Salvador
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Equatorial Guinea
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Eritrea 1

                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Estonia 3

                  X

                  X

                  X
                  X

                  Ethiopia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Fiji
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X
                  X

                  Finland 3 4

                  X

                  X

                  X
                  X

                  X

                  X

                  France 3

                  X

                  X

                  X
                  X

                  Gabon
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Gambia, The
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Georgia
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Germany 3

                  X

                  X

                  X
                  X

                  Ghana
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Greece 3

                  X

                  X

                  X
                  X

                  Grenada
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Guatemala
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Guinea
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Guinea-Bissau
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Guyana
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Haiti
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Honduras
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Hong Kong
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Hungary 3

                  X

                  X

                  X
                  X

                  Iceland 3

                  X

                  X

                  X
                  X

                  India 7

                  X

                  X

                  X

                  X
                  X

                  Indonesia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Iran 1

                  See part 746 of the EAR to determine whether a license is required in order to export or reexport to this destination.

                  Iraq 1

                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Ireland 3 4

                  X

                  X

                  X
                  X

                  X

                  X

                  Israel
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Italy 3

                  X

                  X

                  X
                  X

                  Jamaica
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Japan 3

                  X

                  X

                  X
                  X

                  Jordan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Kazakhstan
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Kenya
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Kiribati
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Korea, North 1

                  See Sections 742.19 and 746.4 of the EAR to determine whether a license is required in order to export or reexport to this destination.

                  Korea, South 3 4

                  X

                  X

                  X
                  X

                  X

                  X

                  Kosovo
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X
                  X

                  Kuwait
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Kyrgyzstan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Laos
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Latvia 3

                  X

                  X

                  X
                  X

                  Lebanon 1

                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Lesotho
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Liberia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Libya 1

                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Liechtenstein 5

                  X

                  X

                  X
                  X

                  X

                  X

                  Lithuania 3

                  X

                  X

                  X
                  X

                  Luxembourg 3

                  X

                  X

                  X
                  X

                  Macau
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Macedonia (The Former Yugoslav Republic of)
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Madagascar
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Malawi
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Malaysia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Maldives
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Mali
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Malta2 3 4

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Marshall Islands
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Mauritania
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Mauritius
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Mexico
                  X

                  X

                  X
                  X

                  X
                  X

                  X

                  Micronesia (Federated State of)
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Moldova
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Monaco
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Mongolia
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Montenegro
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X
                  X

                  Morocco
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Mozambique
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Namibia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Nauru
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Nepal
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Netherlands 3

                  X

                  X

                  X
                  X

                  New Zealand 3

                  X

                  X

                  X
                  X

                  Nicaragua
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Niger
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Nigeria
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Norway 3

                  X

                  X

                  X
                  X

                  Oman
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Pakistan
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Palau
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Panama
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Papua New Guinea
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Paraguay
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Peru
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Philippines
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Poland 3

                  X

                  X

                  X
                  X

                  Portugal 3

                  X

                  X

                  X
                  X

                  Qatar
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Romania 3

                  X

                  X

                  X
                  X

                  Russia 6

                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Rwanda
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X
                  X

                  St. Kitts and Nevis
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  St. Lucia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  St. Vincent and the Grenadines
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Samoa
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  San Marino
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Sao Tome and Principe
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Saudi Arabia
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Senegal
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Serbia
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X
                  X

                  Seycheles
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Sierra Leone
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Singapore
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Sint Maarten (the Dutch two-fifths of the island of Saint Martin)
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Slovakia 3

                  X

                  X

                  X
                  X

                  Slovenia 3

                  X

                  X

                  X
                  X

                  Solomon Islands
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Somalia 1

                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  South Africa 2 3 4

                  X
                  X

                  X

                  X
                  X

                  X

                  X

                  South Sudan, Republic of
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Spain 3

                  X

                  X

                  X
                  X

                  Sri Lanka
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Sudan 1

                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X
                  X
                  X

                  Suriname
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Swaziland
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Sweden 3 4

                  X

                  X

                  X
                  X

                  X

                  X

                  Switzerland 3 4

                  X

                  X

                  X
                  X

                  X

                  X

                  Syria
                  See § 746.9 of the EAR to determine whether a license is required in order to export or reexport to this destination.

                  Taiwan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Tajikistan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Tanzania
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Thailand
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Timor-Leste
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Togo
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Tonga
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Trinidad and Tobago
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Tunisia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Turkey 3

                  X

                  X

                  X
                  X

                  Turkmenistan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Tuvalu
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Uganda
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Ukraine 8

                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  United Arab Emirates
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  United Kingdom 3

                  X

                  X

                  X
                  X

                  Uruguay
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Uzbekistan
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Vanuatu
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Vatican City
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Venezuela
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X
                  X

                  X

                  Vietnam
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X
                  X

                  Western Sahara
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Yemen
                  X
                  X
                  X
                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Zambia
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  Zimbabwe
                  X
                  X

                  X

                  X
                  X
                  X
                  X
                  X

                  X

                  X

                  1 See § 746.1(b) for United Nations Security Council Sanctions under the EAR. See § 746.3 for United Nations Security Council-related license requirements for exports and reexports to Iraq or transfer within Iraq under the EAR, as well as regional stability licensing requirements not included in the Country Chart.

                  2 See § 742.4(a) for special provisions that apply to exports and reexports to these countries of certain thermal imaging cameras.

                  3 See § 742.6(a)(3) for special provisions that apply to military commodities that are subject to ECCN 0A919.

                  4 See § 742.6(a)(2) and (4)(ii) regarding special provisions for exports and reexports of certain thermal imaging cameras to these countries.

                  5 Refer to Switzerland for licensing requirements for Liechtenstein under the EAR.

                  6 See § 746.5 for additional license requirements under the Russian Industry Sector Sanctions for ECCNs 0A998, 1C992, 3A229, 3A231, 3A232, 6A991, 8A992, and 8D999.

                  7 Note that a license is still required for items controlled under ECCNs 6A003.b.4.b and 9A515.e for RS column 2 reasons when destined to India.

                  8 See § 746.6 for additional license requirements for export and reexports to the Crimea region of Ukraine and transfers (in-country) within the Crimea region of Ukraine for all items subject to the EAR, other than food and medicine designated as EAR99 and certain EAR99 or ECCN 5D992.c software for Internet-based communications. The Crimea region of Ukraine includes the land territory in that region as well as any maritime area over which sovereignty, sovereign rights, or jurisdiction is claimed based on purported annexation of that land territory.

              [64 FR 17970, Apr. 13, 1999]

                Editorial Note:
                For Federal Register citations affecting supplement no. 1 to part 738, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

            Pt. 740
            PART 740—LICENSE EXCEPTIONS

              Sec.
              740.1
              Introduction.
              740.2
              Restrictions on all License Exceptions.
              740.3
              Shipments of limited value (LVS).
              740.4
              Shipments to Country Group B countries (GBS).
              740.5
              Civil end-users (CIV).
              740.6
              Technology and software under restriction (TSR).
              740.7
              Computers (APP).
              740.8
              [Reserved]
              740.9
              Temporary imports, exports, reexports, and transfers (in-country) (TMP).
              740.10
              Servicing and replacement of parts and equipment (RPL).
              740.11
              Governments, international organizations, international inspections under the Chemical Weapons Convention, and the International Space Station (GOV).
              740.12
              Gift parcels and humanitarian donations (GFT).
              740.13
              Technology and software—unrestricted (TSU).
              740.14
              Baggage (BAG).
              740.15
              Aircraft, vessels and spacecraft (AVS).
              740.16
              Additional permissive reexports (APR).
              740.17
              Encryption commodities, software, and technology (ENC).
              740.18
              Agricultural commodities (AGR).
              740.19
              Consumer Communications Devices (CCD).
              740.20
              License Exception Strategic Trade Authorization (STA).
              740.21
              Support for the Cuban People (SCP).
              Supplement No. 1 to Part 740—Country Groups
              Supplement No. 2 to Part 740—Items That May Be Donated to Meet Basic Human Needs Under the Humanitarian License Exception
              Supplement No. 3 to Part 740—License Exception ENC Favorable Treatment Countries

              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. 7201 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.

              § 740.1
              Introduction.
              In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C.
              (a) Scope. A “License Exception” is an authorization contained in this part that allows you to export or reexport under stated conditions, items subject to the Export Administration Regulations (EAR) that would otherwise require a license under General Prohibition One, Two, Three, or Eight, as indicated under one or more of the Export Control Classification Numbers (ECCNs) in the Commerce Control List (CCL) in supplement no. 1 to part 774 of the EAR and items subject to the EAR that would require a license based on the embargo policies described in part 746 of the EAR. If your export or reexport is subject to General Prohibition Six for embargoed destinations, refer to part 746 of the EAR to determine the availability of any License Exceptions. Special commodity controls apply to short supply items. License Exceptions for items listed on the CCL as controlled for Short Supply reasons are found in part 754 of the EAR. If your export or reexport is subject to General Prohibition Five, consult part 744 of the EAR. If your export or reexport is subject to General Prohibitions Four, Seven, Nine, or Ten, then no License Exceptions apply. Any license exception authorizing reexports also authorizes in-country transfers, provided the terms and conditions for reexports under that license exception are met.
              (b) Certification. By using any of the License Exceptions you are certifying that the terms, provisions, and conditions for the use of the License Exception described in the EAR have been met. Please refer to part 758 of the EAR for clearance of shipments and documenting the use of License Exceptions.
              (c) License Exception symbols. Each License Exception bears a three letter symbol that will be used for export clearance purposes (see paragraph (d) of this section).
              (d) Electronic Export Information (EEI) filing. You must enter on any required EEI filing the correct License Code that corresponds to the appropriate license exception symbol (e.g., LVS, GBS, CIV) and the correct Export Control Classification Number (ECCN) (e.g., 4A003, 5A002) for all exports of items under a license exception. Items temporarily in the United States meeting the provisions of License Exception TMP, under § 740.9(b)(3), are excepted from this requirement. See § 758.1 of the EAR and 15 CFR part 30 of the FTR for EEI requirements.

              (e) Destination Control Statement. You may be required to enter an appropriate Destination Control Statement on commercial documents in accordance with Destination Control Statement requirements of § 758.6 of the EAR.
              (f) Recordkeeping. Records of transactions involving exports under any of the License Exceptions must be maintained in accordance with the recordkeeping requirements of part 762 of the EAR.
              [61 FR 12768, Mar. 25, 1996, as amended at 61 FR 64274, Dec. 4, 1996; 62 FR 25457, May 9, 1997; 65 FR 42568, July 10, 2000; 66 FR 36680, July 12, 2001; 66 FR 42109, Aug. 10, 2001; 68 FR 50472, Aug. 21, 2003; 78 FR 22708, Apr. 16, 2013; 79 FR 4615, Jan. 29, 2014]

              § 740.2
              Restrictions on all License Exceptions.
              (a) You may not use any License Exception if any one or more of the following apply:
              (1) Your authorization to use a License Exception has been suspended or revoked, or your intended export does not qualify for a License Exception.
              (2) The export or reexport is subject to one of the ten General Prohibitions, is not eligible for a License Exception, and has not been authorized by BIS.
              (3) The item is primarily useful for surreptitious interception of wire, oral, or electronic communications, or related software, controlled under ECCNs 5A001.f.1, 5A980, 5D001 (for 5A001.f.1 or for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1))), or 5D980, unless the item is consigned to and for the official use of an agency of the U.S. Government (see § 740.11(b)(2)(ii) of this part, Governments (GOV)). No license exceptions apply for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1)) or for 5E980.
              (4) The item being exported or reexported is subject to the license requirements described in § 742.7 of the EAR and the export or reexport is not:
              (i) Being made to Australia, India, Japan, New Zealand, or a NATO (North Atlantic Treaty Organization) member state (see NATO membership listing in § 772.1 of the EAR):
              (ii) Authorized by § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. government);
              (iii) Authorized by § 740.14(e) of the EAR (certain shotguns and shotgun shells for personal use); or
              (iv) Authorized by § 740.20 of the EAR (License Exception STA).
              (5)(i) The item is controlled for missile technology (MT) reasons, except that the items described in ECCNs 6A008, 7A001, 7A002, 7A004, 7A101, 7A102, 7A103, 7A104, 7A105, 7B001, 7D001, 7D002, 7D003, 7D101, 7D102, 7E003, 7E101 or 9A515, may be exported as part of a spacecraft, manned aircraft, land vehicle or marine vehicle or in quantities appropriate for replacement parts for such applications under § 740.9(a)(4) (License Exception TMP for kits consisting of replacement parts), § 740.10 (License Exception RPL), § 740.13 (License Exception TSU), or § 740.15(b) (License Exception AVS for equipment and spare parts for permanent use on a vessel, aircraft or spacecraft).
              (ii) MT controlled commodities described in ECCNs 2A001 or 2A101 may be exported or reexported under § 740.9(a)(4) (License Exception TMP) or § 740.10 (License Exception RPL) as one-for-one replacement for equipment previously legally exported or reexported.
              (6) The export or reexport is to a sanctioned destination (Cuba, Iran, North Korea, Syria, and Crimea region of Ukraine) or a license is required based on a limited sanction (Russia) unless a license exception or portion thereof is specifically listed in the license exceptions paragraph pertaining to a particular sanctioned country in part 746 of the EAR.
              (7) With the exception of License Exception GOV (§ 740.11(b)(2)), license exceptions are not available for the following 6E001 or 6E002 technology:

              (i) Technology required for the “development” or “production” of photon detector, microbolometer detector, pyroelectric, or multispectral detector, infrared focal plane arrays (IRFPAs), described in ECCN 6A002, having a peak response within the wavelength range exceeding 900 nm but not exceeding 30,000 nm, excluding lead sulfide or lead selenide IRFPAs having a peak response within the wavelength range exceeding 1,000 nm but not exceeding 5,000 nm and not exceeding 16 detector elements; or

              (ii) Technology required for the “development” or “production” of third generation or greater (e.g., Electron Bombarded Active Pixel Sensor (EBAPS)) image intensifier tubes described in ECCN 6A002.
              (8) The item is controlled under ECCNs 2A983, 2A984, 2D983, 2D984, 2E983 or 2E984 and the License Exception is other than:
              (i) RPL, under the provisions of § 740.10, including § 740.10(a)(3)(v), which prohibits exports and reexports of replacement parts to countries in Country Group E:1 (see Supplement 1 to part 740));
              (ii) GOV, restricted to eligibility under the provisions of § 740.11(b)(2)(ii); or
              (iii) TSU, under the provisions of § 740.13(a) and (c).
              (9) [Reserved]
              (10) The commodity being exported or reexported is subject to the license requirements of § 742.11 of the EAR.
              (11) The item is a “military commodity” subject to ECCN 0A919, except that such military commodities may be reexported in accordance with § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. Government).
              (12) The item is described in a 9x515 or “600 series” ECCN and is destined to, shipped from, or was manufactured in a destination listed in Country Group D:5 (see supplement no. 1 to part 740 of the EAR), except that:
              (i) 9x515 or “600 series” items destined to, or in, Country Group D:5 are eligible for License Exception GOV (§ 740.11(b)(2) of the EAR); and
              (ii) 1A613.c or .d items destined to, or in, Country Group D:5 are eligible for License Exception TMP (§ 740.9(a)(11) of the EAR) or License Exception BAG (§ 740.14(h)(2) of the EAR).
              (13) “600 series” items that are controlled for missile technology (MT) reasons may not be exported, reexported, or transferred (in-country) under License Exception STA (§ 740.20 of the EAR). Items controlled under ECCNs 9D610.b, 9D619.b, 9E610.b, or 9E619.b or .c are not eligible for license exceptions except for License Exception GOV (§ 740.11(b)(2) of the EAR). Only the following license exceptions may be used to export “600 series” items to destinations other than those identified in Country Group D:5 (see supplement no. 1 to part 740 of the EAR):
              (i) License Exception LVS (§ 740.3 of the EAR);
              (ii) License Exception TMP (§ 740.9 of the EAR);
              (iii) License Exception RPL (§ 740.10 of the EAR);
              (iv) License Exception TSU (§ 740.13(a), (b), (f) and (g) of the EAR);
              (v) License Exception GOV (§ 740.11(b) or (c) of the EAR);
              (vi) License Exception BAG (§ 740.14); and
              (vii) License Exception STA under § 740.20(c)(1) of the EAR, provided all of the applicable terms and conditions, including those specific to the “600 series” are met.

              (14) Items classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521 may only be authorized by License Exception GOV (§ 740.11(b)(2)(ii)) or an item-specific license exception identified in supplement no. 5 to part 774 for a particular ECCN 0Y521 item.

                Note to paragraph (a)(14):
                Item-specific license exception availability is specific to each ECCN 0Y521 entry in supplement no. 5 to part 774 and may not be used for any other ECCN 0Y521 entries in the supplement. The U.S. Government makes a determination at the time items are classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521 regarding whether any license exceptions will be available, in addition to License Exception GOV (§ 740.11(b)(2)(ii)).

              (15) If they are sold under a contract that includes $14,000,000 or more of “600 Series Major Defense Equipment” (as defined in § 772.1), exports of “600 series” items to a country not listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR), are not eligible for any license exception except to U.S. Government end users under License Exception GOV (§ 740.11(b) of the EAR).

              (16) If they are sold under a contract that includes $25,000,000 or more of “600 Series Major Defense Equipment” (as defined in § 772.1), exports of “600 series” items to a country listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR), are not eligible for any license exception except to U.S. Government end users under License Exception GOV (§ 740.11(b) of the EAR).

              (17) A party to the transaction, as described in § 748.5 of the EAR, is listed on the Unverified List in supplement no. 6 to part 744, see § 744.15 of the EAR.
              (18) 9x515 items that are controlled for missile technology (MT) reasons may not be exported, reexported, or transferred (in-country) under License Exception STA (§ 740.20 of the EAR).
              (19) The exporter or reexporter to Hong Kong of any item subject to the EAR and controlled on the CCL for NS, MT, NP Column 1, or CB reasons has not received one of the following with respect to the item:
              (i) A copy of an import license issued to the Hong Kong importer by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers all items to be exported or reexported pursuant to that license exception for which a Hong Kong import license is required and that is valid on the date of the export or reexport that is subject to the EAR; or
              (ii) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no import license is required to import into Hong Kong the item(s) to be exported or reexported. The statement may have been issued directly to the Hong Kong importer or it may be a written statement available to the general public. The statement may be used for more than one export or reexport to Hong Kong so long as it remains an accurate statement of Hong Kong law.
              (20) The reexporter from Hong Kong of any item subject to the EAR controlled on the CCL for NS, MT, NP column 1, or CB reasons has not received one of the following with respect to the item:
              (i) An export license issued by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers all items to be reexported pursuant to that license exception for which a Hong Kong export license is required and that is valid on the date of the reexport that is subject to the EAR; or

              (ii) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no Hong Kong export license is required for the item(s) to be rexported. The statement may have been issued directly to the Hong Kong reexporter or it may be a written statement available to the general public. The statement may be used for more than one reexport from Hong Kong so long as it remains an accurate statement of Hong Kong law.

                Note to paragraph (a):
                Items subject to the exclusive export control jurisdiction of another agency of the U.S. Government may not be authorized by a license exception or any other authorization under the EAR. If your item is subject to the exclusive jurisdiction of another agency of the U.S. Government, you must determine your export licensing requirements pursuant to the other agency's regulations. See § 734.3(b) and supplement no. 3 to part 730 of the EAR for other U.S. Government departments and agencies with export control responsibilities.

              (b) All License Exceptions are subject to revision, suspension, or revocation, in whole or in part, without notice. It may be necessary for BIS to stop a shipment or an export transaction at any stage of its progress, e.g., in order to prevent an unauthorized export or reexport. If a shipment is already en route, it may be further necessary to order the return or unloading of the shipment at any port of call.
              (c) BIS may by informing the exporter, suspend or revoke any License Exception in order to comply with U.S. Wassenaar obligations. In addition, BIS may inform an exporter, that before using any License Exception, a notice be submitted with BIS concerning the proposed export.
              (d) See § 746.3 for restrictions on certain transfers within Iraq of items exported or reexported to Iraq pursuant to a License Exception.
              [61 FR 12768, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 740.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 740.3
              Shipments of limited value (LVS).
              (a) Scope. License Exception LVS authorizes the export and reexport in a single shipment of eligible commodities as identified by “LVS - $(value limit)” on the CCL.
              (b) Eligible destinations. This License Exception is available for all destinations in Country Group B (see supplement no. 1 to part 740), provided that the net value of the commodities included in the same order and controlled under the same ECCN entry on the CCL does not exceed the amount specified in the LVS paragraph for that entry.
              (c) Definitions—(1) Order. The term order as used in this § 740.3 means a communication from a person in a foreign country, or that person's representative, expressing an intent to import commodities from the exporter. Although all of the details of the order need not be finally determined at the time of export, terms relating to the kinds and quantities of the commodities to be exported, as well as the selling prices of these commodities, must be finalized before the goods can be exported under License Exception LVS.
              (2) Net value: for LVS shipments. The actual selling price of the commodities that are included in the same order and are controlled under the same entry on the CCL, less shipping charges, or the current market price of the commodities to the same type of purchaser in the United States, whichever is the larger. In determining the actual selling price or the current market price of the commodity, the value of containers in which the commodity is being exported may be excluded. The value for LVS purposes is that of the controlled commodity that is being exported, and may not be reduced by subtracting the value of any content that would not, if shipped separately, be subject to licensing. Where the total value of the containers and their contents must be shown on Shipper's Export Declarations under one Schedule B Number, the exporter, in effecting a shipment under this License Exception, must indicate the “net value” of the contained commodity immediately below the description of the commodity.
              (3) Single shipment. All commodities moving at the same time from one exporter to one consignee or intermediate consignee on the same exporting carrier even though these commodities will be forwarded to one or more ultimate consignees. Commodities being transported in this manner will be treated as a single shipment even if the commodities represent more than one order or are in separate containers.
              (d) Additional eligibility requirements and restrictions—(1) Eligible orders. To be eligible for this License Exception, orders must meet the following criteria:
              (i) Orders must not exceed the applicable “LVS” dollar value limits. An order is eligible for shipment under LVS when the “net value” of the commodities controlled under the same entry on the CCL does not exceed the amount specified in the “LVS” paragraph for that entry. An LVS shipment may include more than one eligible order.
              (ii) Orders may not be split to meet the applicable LVS dollar limits. An order that exceeds the applicable LVS dollar value limit may not be misrepresented as two or more orders, or split among two or more shipments, to give the appearance of meeting the applicable LVS dollar value limit. However an order that meets all the LVS eligibility requirements, including the applicable LVS dollar value limit, may be split among two or more shipments.
              (iii) Orders must be legitimate. Exporters and consignees may not, either collectively or individually, structure or adjust orders to meet the applicable LVS dollar value limits.
              (2) Restriction on annual value of LVS orders. The total value of exports per calendar year to the same ultimate or intermediate consignee of commodities classified under a single ECCN may not exceed 12 times the LVS value limit for that ECCN; however, there is no restriction on the number of shipments provided that value is not exceeded. This annual value limit applies to shipments to the same ultimate consignee even though the shipments are made through more than one intermediate consignee. There is no restriction on the number of orders that may be included in a shipment, except that the annual value limit per ECCN must not be exceeded.
              (3) Orders where two or more LVS dollar value limits apply. An order may include commodities that are controlled under more than one entry on the CCL. In this case, the net value of the entire order may exceed the LVS dollar value for any single entry on the CCL. However, the net value of the commodities controlled under each ECCN entry shall not exceed the LVS dollar value limit specified for that entry.

                Example to paragraph (d)(3):
                An order includes commodities valued at $8,000. The order consists of commodities controlled under two ECCN entries, each having an LVS value limit of $5000. Commodities in the order controlled under one ECCN are valued at $3,500 while those controlled under the other ECCN are valued at $4,500. Since the net value of the commodities controlled under each entry falls within the LVS dollar value limits applicable to that entry, the order may be shipped under this License Exception.

              (4) Prohibition against evasion of license requirements. Any activity involving the use of this License Exception to evade license requirements is prohibited. Such devices include, but are not limited to, the splitting or structuring of orders to meet applicable LVS dollar value limits, as prohibited by paragraphs (d)(1) (ii) and (iii) of this section.
              (5) Exports and reexports of encryption components or spare parts. For components or spare parts controlled for “EI” reasons under ECCN 5A002, exports and reexports under this License Exception must be destined to support a commodity previously authorized for export or reexport.
              (e) Reexports. Commodities may be reexported under this License Exception, provided that they could be exported from the United States to the new country of destination under LVS.
              (f) Reporting requirements. See § 743.1 of the EAR for reporting requirements for exports of certain commodities under License Exception LVS.
              [61 FR 64274, Dec. 4, 1996, as amended at 63 FR 2456, Jan. 15, 1998; 63 FR 50520, Sept. 22, 1998; 73 FR 57504, Oct. 3, 2008]

              § 740.4
              Shipments to Country Group B countries (GBS).
              License Exception GBS authorizes exports and reexports to Country Group B (see supplement no. 1 to part 740) of those commodities where the Commerce Country Chart (supplement no. 1 to part 738 of the EAR) indicates a license requirement to the ultimate destination for national security reasons only and identified by “GBS—Yes” on the CCL. See § 743.1 of the EAR for reporting requirements for exports of certain commodities under License Exception GBS.
              [63 FR 2456, Jan. 15, 1998, as amended at 69 FR 5690, Feb. 6, 2004]

              § 740.5
              Civil end-users (CIV).
              (a) Scope. License Exception CIV authorizes exports and reexports of items on the Commerce Control List (CCL) (supplement no. 1 to part 774 of the EAR) that have a license requirement to the ultimate destination pursuant to the Commerce Country Chart (supplement no. 1 to part 738 of the EAR) for NS reasons only; and identified by “CIV—Yes” in the License Exception section of the Export Control Classification Number (ECCN), provided the items are destined to civil end-users for civil end-uses in Country Group D:1, except North Korea (supplement no. 1 to part 740 of this part).
              (b) Restrictions—(1) Restricted end-users and end-uses. You may not use CIV if you “know” the item will be or is intended to be exported, reexported, or transferred (in-country) to military uses or military end-users. Such exports, reexports, and transfers (in-country) will continue to require a license. In addition to conventional military activities, military uses include any proliferation activities described and prohibited by part 744 of the EAR.
              (2) Visa status. Deemed exports under License Exception CIV are not authorized to foreign nationals in an expired visa status. It is the responsibility of the exporter to ensure that, in the case of deemed exports, the foreign national maintains a valid U.S. visa, if required to hold a visa from the United States.
              (c) Reporting requirement. See § 743.1 of the EAR for reporting requirements for exports of certain items under this License Exception.
              [69 FR 64493, Nov. 5, 2004, as amended at 73 FR 68324, Nov. 18, 2008; 75 FR 31680, June 4, 2010; 81 FR 64669, Sept. 20, 2016]

              § 740.6
              Technology and software under restriction (TSR).
              (a) Scope. License Exception TSR permits exports and reexports of technology and software where the Commerce Country Chart (supplement no. 1 to part 738 of the EAR) indicates a license requirement to the ultimate destination for national security reasons only and identified by “TSR—Yes” in entries on the CCL, provided the software or technology is destined to Country Group B. (See supplement no. 1 to part 740.) A written assurance is required from the consignee before exporting or reexporting under this License Exception.
              (1) Required assurance for export of technology. You may not export or reexport technology under this License Exception until you have received from the importer a written assurance that, without a BIS license or License Exception, the importer will not:
              (i) Reexport or release the technology to a national of a country in Country Groups D:1, E:1, or E:2; or
              (ii) Export to Country Groups D:1, E:1, or E:2 the direct product of the technology, if such foreign produced direct product is subject to national security controls as identified on the CCL (See General Prohibition Three, § 736.2(b)(3) of the EAR); or
              (iii) If the direct product of the technology is a complete plant or any major components of a plant, export to Country Groups D:1, E:1, or E:2 of the direct product of the plant or major components thereof, if such foreign produced direct product is subject to national security controls as identified on the CCL or is “subject to the ITAR” (see 22 CFR parts 120 through 130).
              (2) Required assurance for export of software. You may not export or reexport software under this License Exception until you have received from the importer a written assurance that, without a BIS license or License Exception, the importer will neither:
              (i) Reexport or release the software or the source code for the software to a national of a country in Country Groups D:1, E:1, or E:2; nor
              (ii) Export to Country Groups D:1, E:1, or E:2 the direct product of the software, if such foreign produced direct product is subject to national security controls as identified on the CCL. (See General Prohibition Three, § 736.2(b)(3) of the EAR).
              (3) Form of written assurance. The required assurance may be made in the form of a letter or any other written communication from the importer, including communications via facsimile, or the assurance may be incorporated into a licensing agreement that specifically includes the assurances. An assurance included in a licensing agreement is acceptable only if the agreement specifies that the assurance will be honored even after the expiration date of the licensing agreement. If such a written assurance is not received, License Exception TSR is not applicable and a license is required. The license application must include a statement explaining why assurances could not be obtained.
              (4) Other License Exceptions. The requirements in this License Exception do not apply to the export of technology or software under other License Exceptions, or to the export of technology or software included in an application for the foreign filing of a patent, provided the filing is in accordance with the regulations of the U.S. Patent Office.
              (b) Reporting requirements. See § 743.1 of the EAR for reporting requirements for exports of certain items under License Exception TSR. Note that reports are not required for release of technology or source code subject to the EAR to foreign nationals in the U.S. under the provisions of License Exception TSR.
              [61 FR 64275, Dec. 4, 1996, as amended at 63 FR 50520, Sept. 22, 1998; 63 FR 55019, Oct. 14, 1998; 69 FR 5690, Feb. 6, 2004; 75 FR 44890, July 30, 2010; 78 FR 61901, Oct. 4, 2013; 80 FR 43318, July 22, 2015]

              § 740.7
              Computers (APP).
              (a) Scope—(1) Commodities. License Exception APP authorizes exports, reexports and transfers (in-country) of computers, including “electronic assemblies” and specially designed components therefor controlled by ECCN 4A003 exported or reexported separately or as part of a system for consumption in Computer Tier countries as provided by this section. When evaluating your computer to determine License Exception APP eligibility, use the APP parameter to the exclusion of other technical parameters in ECCN 4A003.
              (2) Technology and software. License Exception APP authorizes exports of technology and software controlled by ECCNs 4D001 and 4E001 specially designed or modified for the “development,” “production,” or “use” of computers, including “electronic assemblies” and specially designed components therefor classified in ECCN 4A003 to Computer Tier countries as provided by this section.
              (b) Restrictions. (1) Related equipment controlled under ECCN 4A003.g may not be exported or reexported under this License Exception when exported or reexported separately from eligible computers authorized under this License Exception.
              (2) Access and release restrictions. (i) [Reserved]
              (ii) Technology and source code. Technology and source code eligible for License Exception APP may not be released to nationals of Cuba, Iran, North Korea, Sudan, or Syria.

              (3) Computers and software eligible for License Exception APP may not be reexported or transferred (in country) without prior authorization from BIS, i.e., a license, a permissive reexport, another License Exception, or “No License Required”. This restriction must be conveyed to the consignee, via the Destination Control Statement, see § 758.6 of the EAR. Additionally, the end-use and end-user restrictions in paragraph (b)(5) of this section must be conveyed to any consignee in Computer Tier 3.
              (4) You may not use this License Exception to export or reexport items that you know will be used to enhance the APP beyond the eligibility limit allowed to your country of destination.
              (5) License Exception APP does not authorize exports, reexports and transfers (in-country) for nuclear, chemical, biological, or missile end-users and end-uses subject to license requirements under §§ 744.2, 744.3, 744.4, and 744.5 of the EAR. Such exports, reexports and transfers (in-country) will continue to require a license and will be considered on a case-by-case basis. Reexports and transfers (in-country) to these end-users and end-uses in eligible countries are strictly prohibited without prior authorization.
              (6) Foreign nationals in an expired visa status are not eligible to receive deemed exports of technology or source code under this License Exception. It is the responsibility of the exporter to ensure that, in the case of deemed exports, the foreign national maintains a valid U.S. visa, if required to hold a visa from the United States.
              (c) Computer Tier 1 destinations—(1) Eligible destinations. The destinations that are eligible to receive exports and reexports under paragraph (c) of this section include: Albania, Antigua and Barbuda, Argentina, Aruba, Australia, Austria, Bahamas (The), Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei, Bulgaria, Burkina Faso, Burma, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo (Democratic Republic of the), Congo (Republic of the), Costa Rica, Cote d'Ivoire, Croatia, Curaçao, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Gambia (The), Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, Indonesia, Ireland, Italy, Jamaica, Japan, Kenya, Kiribati, Korea (Republic of), Latvia, Lesotho, Liberia, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritius, Mexico, Micronesia (Federated States of), Monaco, Mozambique, Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Rwanda, St. Kitts & Nevis, St. Lucia, St. Vincent and the Grenadines, Sao Tome & Principe, Samoa, San Marino, Senegal, Seychelles, Sierra Leone, Singapore, Sint Maarten (the Dutch two-fifths of the island of Saint Martin), Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Taiwan, Tanzania, Togo, Tonga, Thailand, Timor-Leste, Trinidad and Tobago, Turkey, Tuvalu, Uganda, United Kingdom, Uruguay, Vatican City, Venezuela, Western Sahara, Zambia, and Zimbabwe.
              (2) Eligible commodities. All computers, including electronic assemblies and specially designed components therefore are eligible for export or reexport under License Exception APP to Tier 1 destinations, subject to the restrictions in paragraph (b) of this section.
              (3) Eligible technology and software. (i) Technology and software described in paragraph (a)(2) of this section for computers of unlimited APP are eligible for export, reexport, transfer (in-country) under License Exception APP to countries listed in Country Group A:5, see supplement no. 1 to this part; and
              (ii) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 40 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
              (iii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 200 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
              (d) Computer Tier 3 destinations—(1) Eligible destinations. Eligible destinations under paragraph (d) of this section are: Afghanistan, Algeria, Andorra, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Bosnia & Herzegovina, Cambodia, China (People's Republic of), Comoros, Djibouti, Egypt, Georgia, India, Iraq, Israel, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Libya, Macau, Macedonia (The Former Yugoslav Republic of), Mauritania, Moldova, Mongolia, Montenegro, Morocco, Oman, Pakistan, Qatar, Russia, Saudi Arabia, Serbia, Tajikistan, Tunisia, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, and Yemen.
              (2) Eligible commodities. None.
              (3) Eligible technology and source code. (i) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 16 Weighted TeraFLOPs (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) of this section.
              (ii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 32 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) of this section.
              (e) Reporting requirements. See § 743.1 of the EAR for reporting requirements of certain items under License Exception APP.
              [71 FR 20883, Apr. 24, 2006, as amended at 71 FR 51717, Aug. 31, 2006; 71 FR 68439, Nov. 27, 2006; 72 FR 13441, Mar. 22, 2007; 72 FR 60249, Oct. 24, 2007; 73 FR 51218, Sept. 2, 2008; 73 FR 68324, Nov. 18, 2008; 75 FR 31680, June 4, 2010; 75 FR 36514, June 28, 2010; 76 FR 36988, June 24, 2011; 76 FR 54930, Sept. 6, 2011; 76 FR 70339, Nov. 14, 2011; 77 FR 39367, July 2, 2012; 81 FR 64669, Sept. 20, 2016; 82 FR 38773, Aug. 15, 2017]

              § 740.8
              [Reserved]

              § 740.9
              Temporary imports, exports, reexports, and transfers (in-country) (TMP).
              This License Exception authorizes various temporary exports and reexports; exports and reexports of items temporarily in the United States; and exports and reexports of beta test software.
              (a) Temporary exports, reexports, and transfers (in-country). License Exception TMP authorizes exports, reexports, and transfers (in-country) of items for temporary use abroad (including use in or above international waters) subject to the conditions specified in this paragraph (a). No item may be exported, reexported, or transferred (in-country) under this paragraph (a) if an order to acquire the item, such as a purchase order, has been received before shipment; with prior knowledge that the item will stay abroad beyond the terms of this License Exception; or when the item is for subsequent lease or rental abroad. The references to various countries and country groups in these TMP-specific provisions do not limit or amend the prohibitions in § 740.2 of the EAR on the use of license exceptions generally, such as for exports of 9x515 or “600 series” items to destinations in Country Group D:5.
              (1) Tools of trade. Exports, reexports, or transfers (in-country) of commodities and software as tools of trade for use by the exporter or employees of the exporter may be made only to destinations other than Country Group E:1. The tools of trade must remain under the “effective control” of the exporter or the exporter's employee. Eligible items are usual and reasonable kinds and quantities of tools of trade for use in a lawful enterprise or undertaking of the exporter. Tools of trade include, but are not limited to, commodities and software as is necessary to commission or service items, provided that the commodity or software is appropriate for this purpose and that all items to be commissioned or serviced are of foreign origin, or if subject to the EAR, have been lawfully exported, reexported, or transferred. Tools of trade may accompany the individual departing from the United States or may be shipped unaccompanied within one month before the individual's departure from the United States, or at any time after departure. Software used as a tool of trade must be protected against unauthorized access. Examples of security precautions to help prevent unauthorized access include the following:
              (i) Use of secure connections, such as Virtual Private Network connections, when accessing IT networks for activities that involve the transmission and use of the software authorized under this license exception;
              (ii) Use of password systems on electronic devices that store the software authorized under this license exception; and
              (iii) Use of personal firewalls on electronic devices that store the software authorized under this license exception.
              (2) Sudan. Notwithstanding the exclusion of destinations in Country Group E:1 in paragraphs (a)(1) and (3) of this section, items listed in § 740.19(b) of the EAR may be exported or reexported as tools of trade to Sudan. All other requirements and limitations of this paragraph (a) apply to such exports and reexports.
              (3) “Technology,” regardless of media or format, may be exported, reexported, or transferred (in-country) by or to a U.S. person, or a foreign person employee of a U.S. person traveling or on temporary assignment abroad, subject to the following restrictions:
              (i) Foreign persons may only export, reexport, transfer (in country) or receive such “technology” as they are authorized to receive through a license, license exception other than TMP or because no license is required.
              (ii) “Technology” exported, reexported, or transferred under this authorization may only be possessed or used by a U.S. person or authorized foreign person. Sufficient security precautions must be taken to prevent the unauthorized release of the “technology.” Such security precautions may include encryption of the “technology,” the use of secure network connections, such as Virtual Private Networks, the use of passwords or other access restrictions on the electronic device or media on which the “technology” is stored, and the use of firewalls and other network security measures to prevent unauthorized access.

              (iii) The individual is an employee of the U.S. Government or is directly employed by a U.S. person and not, e.g., by a foreign subsidiary.
              (iv) “Technology” authorized under this exception may not be used for foreign production purposes or for technical assistance unless authorized through a license or license exception other than TMP.
              (4) Kits consisting of replacement parts or components. Kits consisting of replacement parts or components may be exported, reexported, or transferred (in-country) to all destinations except Country Group E:1 (see supplement no. 1 to part 740 of the EAR), provided that:

              (i) The parts and components would qualify for shipment under paragraph (a)(4)(iii) of this section if exported as one-for-one replacements;

              (ii) The kits remain under effective control of the exporter or an employee of the exporter; and
              (iii) All parts and components in the kit are returned, except that one-for-one replacements may be made in accordance with the requirements of License Exception RPL and the defective parts and components returned (see Parts, Components, Accessories and Attachments in § 740.10(a) of this part).
              (5) Exhibition and demonstration. This paragraph (a)(5) authorizes exports, reexports, and transfers (in-country) of commodities and software for exhibition or demonstration in all destinations except Country Group E:1 (see supplement no. 1 to this part) provided that the exporter maintains ownership of the commodities and software while they are abroad and provided that the exporter, an employee of the exporter, or the exporter's designated sales representative retains “effective control” over the commodities and software while they are abroad. The commodities and software may not be used when abroad for more than the minimum extent required for effective demonstration. The commodities and software may not be exhibited or demonstrated at any one site for longer than 120 days after installation and debugging, unless authorized by BIS. However, before or after an exhibition or demonstration, pending movement to another site, return to the United States or the foreign reexporter, or BIS approval for other disposition, the commodities and software may be placed in a bonded warehouse or a storage facility provided that the exporter retains “effective control” over their disposition. The export documentation for this type of transaction must show the exporter as ultimate consignee, in care of the person who will have control over the commodities and software abroad.
              (6) Inspection, test, calibration, and repair. Commodities to be inspected, tested, calibrated, or repaired abroad may be exported, reexported, and transferred (in-country) under this paragraph (a)(6) to all destinations except Country Group E:1.
              (7) Containers. Containers for which another license exception is not available and that are necessary for shipment of commodities may be exported, reexported, and transferred (in-country) under this paragraph (a)(7). However, this paragraph does not authorize the export of the container's contents, which, if not exempt from licensing, must be separately authorized for export under either a license exception or a license.
              (8) Assembly in Mexico. Commodities may be exported to Mexico under Customs entries that require return to the United States after processing, assembly, or incorporation into end products by companies, factories, or facilities participating in Mexico's in-bond industrialization program (IMMEX) under this paragraph (a)(8), provided that all resulting end-products (or the commodities themselves) are returned to the United States as soon as practicable but no later than four years after the date of export or reexport.
              (9) News media. (i) Commodities necessary for news-gathering purposes (and software necessary to use such commodities) may be temporarily exported or reexported for accredited news media personnel (i.e., persons with credentials from a news-gathering or reporting firm) to Cuba, North Korea, Sudan, or Syria (see supplement no. 1 to part 740) if the commodities:
              (A) Are retained under “effective control” of the exporting news-gathering firm in the country of destination;
              (B) Remain in the physical possession of the news media personnel in the country of destination. The term physical possession for purposes of this paragraph (a)(9) means maintaining effective measures to prevent unauthorized access (e.g., securing equipment in locked facilities or hiring security guards to protect the equipment); and
              (C) Are removed with the news media personnel at the end of the trip.

              (ii) When exporting under this paragraph (a)(9) from the United States, the exporter must email a copy of the packing list or similar identification of the exported commodities, to bis.compliance@bis.doc.gov specifying the destination and estimated dates of departure and return. The Office of Export Enforcement (OEE) may check returns to assure that the provisions of this paragraph (a)(9) are being used properly.

              (iii) Commodities or software necessary for news-gathering purposes that accompany news media personnel to all other destinations shall be exported, reexported, or transferred (in-country) under paragraph (a)(1), tools of trade, of this section if owned by the news gathering firm, or if they are personal property of the individual news media personnel. Note that paragraphs (a)(1), tools of trade, and (a)(9), news media, of this section do not preclude independent accredited contract personnel, who are under control of news-gathering firms while on assignment, from using these provisions, provided that the news gathering firm designates an employee of the contract firm to be responsible for the equipment.
              (10) Temporary exports to a U.S. person's foreign subsidiary, affiliate, or facility abroad. Components, parts, tools, accessories, or test equipment exported by a U.S. person to a subsidiary, affiliate, or facility owned or controlled by the U.S. person, if the components, parts, tools, accessories, or test equipment are to be used to manufacture, assemble, test, produce, or modify items, provided that such components, parts, tools, accessories or test equipment are not transferred (in-country) or reexported from such subsidiary, affiliate, or facility, alone or incorporated into another item, without prior authorization by BIS.
              (11) Personal protective “equipment” classified under ECCN 1A613.c or .d and individual protection “equipment” classified under ECCN 1A607.f—(i) Temporary exports, reexports, or in-country transfers to countries not identified in Country Group D:5. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries not identified in Country Group D:5, provided that:

              (A) The items are with the U.S. person's baggage or effects, whether accompanied or unaccompanied (but not mailed); and

              (B) The items are for that U.S. person's exclusive use and not for transfer of ownership unless reexported or transferred (in-country) to another U.S. person.
              (ii) Temporary exports, reexports, or transfers (in-country) to countries identified in Country Group D:5—(A) Iraq. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to Iraq, for personal use, provided that the requirements in paragraph (a)(11)(i) of this section are met. In addition, the U.S. person must be affiliated with the U.S. Government and traveling on official business or traveling in support of a U.S. Government contract, or the U.S. person must be traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. Documentation regarding direct authorization from the Government of Iraq shall include an English translation.
              (B) Other countries in Country Group D:5. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries in Country Group D:5 (except Iraq), for personal use, provided that the requirements in paragraph (a)(11)(i) of this section are met, and the U.S. person is affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract.

              (iii) Items exported, reexported, or transferred (in-country) under this paragraph (a)(11), if not consumed or destroyed in the normal course of authorized temporary use abroad, must be returned to the United States or other country from which the items were so transferred as soon as practicable but no later than four years after the date of export, reexport or transfer (in-country).
              (12) U.S. persons. For purposes of this § 740.9, a U.S. person is defined as follows: an individual who is a citizen of the United States, an individual who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(2) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). U.S. person also means any juridical person organized under the laws of the United States, or any jurisdiction within the United States (e.g., corporation, business association, partnership, society, trust, or any other entity, organization or group that is authorized to do business in the United States).
              (13) Destinations. Destination restrictions apply to temporary exports, reexports, or transfers (in-country) to and for use on any vessel, aircraft or territory under ownership, control, lease, or charter by any country specified in any authorizing paragraph of this section, or any national thereof.
              (14) Return or disposal of items. With the exception of items described in paragraphs (a)(8) and (11) of this section, all items exported, reexported, or transferred (in-country) under this section must, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned to the United States or other country from which the items were so transferred as soon as practicable but no later than one year after the date of export, reexport, or transfer (in-country). Items not returned shall be disposed of or retained in one of the following ways:
              (i) Permanent export, reexport, or transfer (in-country). An exporter or reexporter who wants to sell or otherwise dispose of the items abroad, except as permitted by this or other applicable provision of the EAR, must apply for a license in accordance with §§ 748.1, 748.4 and 748.6 of the EAR. (Part 748 of the EAR contains more information about license applications.) The application must be supported by any documents that would be required in support of an application for export license for shipment of the same items directly from the United States to the proposed destination.
              (ii) Use of a license. An outstanding license may also be used to dispose of items covered by the provisions of this paragraph (a), provided that the outstanding license authorizes direct shipment of the same items to the same new ultimate consignee or end-user.
              (iii) Authorization to retain item abroad beyond one year. An exporter, reexporter or transferor who wants to retain an item at the temporary location beyond one year must apply for a license in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS at least 90 days prior to the expiration of the one-year period. The application must include the name and address of the exporter, the date the items were exported, a brief product description, and the justification for the extension. If BIS approves the extension, the applicant will receive authorization for an extension not to exceed four years from the date of initial export, reexport, or transfer. Any request for retaining the items abroad for a period exceeding four years must be made in accordance with the requirements of paragraph (a)(14)(i) of this section.
              (b) Exports of items temporarily in the United States—(1) Items moving in transit through the United States. Subject to the following conditions, the provisions of this paragraph (b)(1) authorize export of items moving in transit through the United States under a Transportation and Exportation (T.&E.) customs entry or an Immediate Exportation (I.E.) customs entry made at a U.S. Customs and Border Protection Office.
              (i) Items controlled for national security (NS) reasons, nuclear proliferation (NP) reasons, or chemical and biological weapons (CB) reasons may not be exported to Country Group D:1, D:2, or D:3 (see supplement no. 1 to part 740), respectively, under this paragraph (b)(1).
              (ii) Items may not be exported to Country Group E:1 under this section.
              (iii) The following may not be exported from the United States under this paragraph (b)(1):

              (A) Commodities shipped to the United States under an International Import Certificate, Form BIS-645P;

              (B) Chemicals controlled under ECCN 1C350; or
              (C) Horses for export by sea (refer to short supply controls in part 754 of the EAR).
              (iv) The authorization to export in paragraph (b)(1) shall apply to all shipments from Canada moving in transit through the United States to any foreign destination, regardless of the nature of the commodities or software or their origin, notwithstanding any other provision of this paragraph (b)(1).
              (2) Items imported for marketing, or for display at U.S. exhibitions or trade fairs. Subject to the following conditions, the provisions of this paragraph (b)(2) authorize the export of items that were imported into the United States for marketing, or for display at an exhibition or trade fair and were either entered under bond or permitted temporary free import under bond providing for their export and are being exported in accordance with the terms of that bond.
              (i) Items may be exported to the country from which imported into the United States. However, items originally imported from Cuba may not be exported unless the U.S. Government had licensed the import from that country.
              (ii) Items may be exported to any destination other than the country from which imported except:
              (A) Items imported into the United States under an International Import Certificate;
              (B) Exports to Country Group E:1 (see supplement no. 1 to part 740); or
              (C) Exports to Country Group D:1, D:2, or D:3 (see supplement no. 1 to part 740) of items controlled for national security (NS) reasons, nuclear nonproliferation (NP) reasons, or chemical and biological weapons (CB) reasons, respectively.
              (3) Return of foreign-origin items. A foreign-origin item may be returned under this license exception to the country from which it was imported if its characteristics and capabilities have not been enhanced while in the United States, except that no foreign-origin items may be returned to Cuba.
              (4) Return of shipments refused entry. Shipments of items refused entry by the U.S. Customs and Border Protection, the Food and Drug Administration, or other U.S. Government agency may be returned to the country of origin, except to:
              (i) A destination in Cuba; or

              (ii) A destination from which the shipment has been refused entry because of the Foreign Assets Control Regulations of the Treasury Department, unless such return is licensed or otherwise authorized by the Treasury Department, Office of Foreign Assets Control (31 CFR parts 500-599).

                Note 1 to paragraph (b):
                A commodity withdrawn from a bonded warehouse in the United States under a ‘withdrawal for export’ customs entry is considered as ‘moving in transit’. It is not considered as ‘moving in transit’ if it is withdrawn from a bonded warehouse under any other type of customs entry or if its transit has been broken for a processing operation, regardless of the type of customs entry.

                Note 2 to paragraph (b):
                Items shipped on board a vessel or aircraft and passing through the United States from one foreign country to another may be exported without a license provided that (a) while passing in transit through the United States, they have not been unladen from the vessel or aircraft on which they entered, and (b) they are not originally manifested to the United States.

                Note 3 to paragraph (b):
                A shipment originating in Canada or Mexico that incidentally transits the United States en route to a delivery point in the same country does not require a license.

              (c) Exports of beta test software—(1) Scope. The provisions of this paragraph (c) authorize exports and reexports to eligible countries of beta test software intended for distribution to the general public.
              (2) Eligible countries. Encryption software controlled under ECCN 5D002 is not eligible for export or reexport to a country in Country Group E:1 under the provisions of this paragraph (c). All other beta test software is eligible for export or reexport to all destinations, except Cuba, Iran, and Sudan under the provisions of this paragraph (c).
              (3) Eligible software. All software that is controlled by the Commerce Control List (supplement no.1 to part 774 of the EAR), and under Commerce licensing jurisdiction, is eligible for export and reexport, subject to the restrictions of this paragraph (c). Encryption software controlled for “EI” reasons under ECCN 5D002 is eligible for export and reexport under this paragraph (c), provided that the exporter has submitted the information described in paragraph (c)(8) of this section by the time of export. Final encryption products produced by the testing consignee are subject to any applicable provisions in § 742.15(b) of the EAR (for mass market encryption commodities and software with symmetric key length exceeding 64-bits) or § 740.17 of the EAR (License Exception ENC), including review and reporting requirements.
              (4) Conditions for use. Exports or reexports of beta test software programs under the provisions of this paragraph (c) must meet all of the following conditions:
              (i) The software producer intends to market the software to the general public after completion of the beta testing, as described in the General Software Note (see supplement no. 2 to part 774 of the EAR) or the Cryptography Note in Category 5, Part 2 (“Information Security”) of the Commerce Control List (see supplement no.1 to part 774 of the EAR);
              (ii) The software producer provides the software to the testing consignee free-of-charge or at a price that does not exceed the cost of reproduction and distribution; and
              (iii) The software is designed for installation by the end-user without further substantial support from the supplier.
              (5) Importer Statement. Prior to exporting or reexporting any eligible software under this paragraph (c), the exporter or reexporter must obtain the following statement from the testing consignee, which may be included in a contract, non-disclosure agreement, or other document that identifies the importer, the software to be exported, the country of destination, and the testing consignee.

                “We certify that this beta test software will only be used for beta testing purposes, and will not be rented, leased, sold, sublicensed, assigned, or otherwise transferred. Further, we certify that we will not transfer or export any product, process, or service that is the direct product of the beta test software.”

              (6) Use limitations. Only testing consignees that provide the importer statement required by paragraph (c)(5) of this section may execute any beta test software that was exported or reexported to them under the provisions of this paragraph (c).
              (7) Return or disposal of software. All beta test software exported must be destroyed abroad or returned to the exporter within 30 days of the end of the beta test period as defined by the software producer or, if the software producer does not define a test period, within 30 days of completion of the consignee's role in the test. Among other methods, this requirement may be satisfied by a software module that will destroy the software and all its copies at or before the end of the beta test period.
              (8) Notification of beta test encryption software. For beta test encryption software eligible under this license exception you must, by the time of export or reexport, submit the information described in paragraphs (a) through (d) of supplement no. 6 to part 742 of the EAR by e-mail to BIS at crypt@bis.doc.gov and to the ENC Encryption Request Coordinator at enc@nsa.gov.

              [61 FR 64277, Dec. 4, 1996. Redesignated at 61 FR 68579, Dec. 30, 1996]

                Editorial Note:
                For Federal Register citations affecting § 740.9, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 740.10
              License Exception Servicing and replacement of parts and equipment (RPL).
              License Exception RPL authorizes exports and reexports associated with one-for-one replacement of parts, components, accessories, and attachments. License Exception RPL also authorizes exports and reexports of certain items currently “subject to the EAR” to or for, or to replace, a defense article described in an export or reexport authorization issued under the authority of the Arms Export Control Act. It does not, however, authorize the export or reexport of defense articles subject to the ITAR, i.e., described on the United States Munitions List (22 CFR 121.1).
              (a) Parts, components, accessories, and attachments—(1) Scope. The provisions of this paragraph (a) authorize the export and reexport of one-for-one replacement parts, components, accessories, and attachments for previously exported equipment or other end items.
              (2) One-for-one replacement of parts, components, accessories, or attachments. (i) The terms replacement parts, components, accessories, or attachments as used in this section mean parts, components, accessories, or attachments needed for the immediate repair of equipment or other end items, including replacement of defective or worn parts or components. (These terms include ‘subassemblies,’ but do not include test instruments or operating supplies. The term ‘subassembly’ means a number of parts or components assembled to perform a specific function or functions within a commodity. One example would be printed circuit boards with components mounted thereon. This definition does not include major subsystems such as those composed of a number of ‘subassemblies.’) Items that improve or change the basic design characteristics, e.g., as to accuracy, capability, performance or productivity, of the equipment or other end item upon which they are installed, are not deemed to be replacement parts, components, accessories, or attachments. For kits consisting of replacement parts or components, consult § 740.9(a)(4) of this part.
              (ii) Parts, components, accessories, and attachments may be exported only to replace, on a one-for-one basis, parts, components, accessories, or attachments, respectively, contained in commodities that were: Lawfully exported from the United States; lawfully reexported; or made in a foreign country incorporating authorized parts, components, accessories, or attachments “subject to the EAR” (see § 734.2(a) of the EAR). “600 series” parts, components, accessories and attachments may be exported only to replace, on a one-for-one basis, parts, components, accessories, or attachments that were: lawfully exported from the United States, or lawfully reexported. The conditions of the original U.S. authorization must not have been violated. Accordingly, the export of replacement parts, components, accessories, and attachments may be made only by the party who originally exported or reexported the commodity to be repaired, or by a party that has confirmed the existence of appropriate authority for the original transaction.
              (iii) The parts, components, accessories, or attachments to be replaced must either be destroyed abroad or returned promptly to the person who supplied the replacements, or to a foreign firm that is under the effective control of that person.
              (3) Exclusions to License Exception RPL. (i) No replacement parts, components, accessories, or attachments may be exported to repair a commodity exported under a license or other authorization if that license or other authorization included a condition that any subsequent replacements may be exported only under a license.
              (ii) No parts, components, accessories, or attachments may be exported to be held abroad as spares for future use. Replacements may be exported to replace spares that were authorized to accompany the export of equipment or other end items as those spares are used in the repair of the equipment or other end item. This allows maintenance of the stock of spares at a consistent level as the parts, components, accessories, or attachments are used.
              (iii) No parts, components, accessories, or attachments may be exported to any destination, except the countries listed in supplement no. 3 to part 744 of the EAR (Countries Not Subject to Certain Nuclear End Use Restrictions in § 744.2(a)), if the item is to be incorporated into or used in nuclear weapons, nuclear explosive devices, nuclear testing related to activities described in § 744.2(a) of the EAR, the chemical processing of irradiated special nuclear or source material, the production of heavy water, the separation of isotopes of source and special nuclear materials, or the fabrication of nuclear reactor fuel containing plutonium, as described in § 744.2(a) of the EAR.

              (iv) No replacement parts, components, accessories, or attachments may be exported to countries in Country Group E:1 (see supplement no. 1 to this part) (countries designated by the Secretary of State as supporting acts of international terrorism) if the commodity to be repaired is an “aircraft” (as defined in § 772.1 of the EAR) or is controlled for national security (NS) reasons.
              (v) No replacement parts, components, accessories, or attachments may be exported to countries in Country Group E:1 (see supplement no. 1 to this part) if the commodity to be repaired is explosives detection equipment classified under ECCN 2A983 or related software classified under ECCN 2D983.
              (vi) No replacement parts, components, accessories, or attachments may be exported to countries in Country Group E:1 (see supplement no. 1 to this part) if the commodity to be repaired is concealed object detection equipment classified under ECCN 2A984 or related software classified under ECCN 2D984.

              (vii) The conditions described in this paragraph (a)(3) relating to replacement of parts, components, accessories, or attachments do not apply to reexports to a foreign country of parts, components accessories, or attachments as replacements in foreign-origin products, if at the time the replacements are furnished, the foreign-origin product is eligible for export to such country under any of the license exceptions in this part or the exceptions in § 734.4 of the EAR (De minimis U.S. content).
              (viii) “Parts,” “components,” “accessories,” and “attachments” classified in 9x515 or “600 series” ECCNs may not be exported or reexported to a destination listed in Country Group D:5 (see supplement no. 1 to this part).
              (4) Reexports. (i) Parts, components, accessories, and attachments exported from the United States may be reexported to a new country of destination, provided that the conditions established in paragraphs (a)(2) and (3) of this section are met. A party reexporting one-for-one replacement parts, components, accessories, or attachments “subject to the EAR” shall ensure that the commodities being repaired were shipped to their present location in accordance with U.S. law and continue to be lawfully used, and that either before or promptly after reexport of the replacement parts, components, accessories, or attachments, the replaced commodities and software are either destroyed or returned to the United States, or to the foreign firm in Country Group B (see supplement no. 1 to this part) that shipped the replacement parts.
              (ii) The conditions described in paragraph (a)(3) relating to replacement of “parts,” “components,” “accessories,” or “attachments” (excluding 9x515 and “600 series” ECCNs) do not apply to reexports to a foreign country of “parts,” “components,” “accessories,” or “attachments” as replacements in foreign-origin products, if at the time the replacements are furnished, the foreign-origin product is eligible for export to such country under any of the License Exceptions in this part or the foreign-origin product is not subject to the EAR pursuant to § 734.4.
              (b) Servicing and replacement—(1) The provisions of this paragraph (b) authorize the export and reexport to any destination, except for 9x515 or “600 series” items to destinations identified in Country Group D:5 (see supplement no. 1 to this part) or otherwise prohibited under the EAR, of commodities and software that were sent to the United States or to a foreign party for servicing and replacement of commodities and software “subject to the EAR” (see § 734.2(a) of the EAR) that are defective or that an end user or ultimate consignee has found unacceptable.
              (2) Commodities and software sent to a United States or foreign party for servicing.
              (i) Definition. “Servicing” as used in this section means inspection, testing, calibration or repair, including overhaul and reconditioning. The servicing shall not have improved or changed the basic characteristics (e.g., the accuracy, capability, performance, or productivity) of the commodity or software as originally authorized for export or reexport.
              (ii) Return of serviced commodities and software. When the serviced commodity or software is returned, it may include any replacement or rebuilt parts, components, accessories, or attachments necessary to its repair and may be accompanied by any spare parts, components, tools, accessories, attachments or other items sent with it for servicing.

              (iii) Commodities and software imported from Country Group D:1 except the People's Republic of China (PRC). Commodities and software legally exported or reexported to a consignee in Country Group D:1 (except the People's Republic of China (PRC)) (see supplement no. 1 to this part) that are sent to the United States or a foreign party for servicing may be returned to the country from which it was sent, provided that both of the following conditions are met:
              (A) The exporter making the shipment is the same person or firm to whom the original license was issued; and
              (B) The end use and the end user of the serviced commodities or software and other particulars of the transaction, as set forth in the application and supporting documentation that formed the basis for issuance of the license have not changed.
              (iv) Terrorist supporting countries. No repaired commodity or software may be exported or reexported to countries in Country Group E:1 (see supplement no. 1 to this part).
              (3) Replacements for defective or unacceptable equipment “subject to the EAR.”
              (i) Subject to the following conditions, commodities or software may be exported or reexported to replace defective or otherwise unusable (e.g., erroneously supplied) items.
              (A) The commodity or software is “subject to the EAR” (see § 734.2(a) of the EAR).
              (B) The commodity or software to be replaced must have been previously exported or reexported in its present form under a license or authorization granted by BIS or an authorization, e.g., a license or exemption, issued under the authority of the Arms Export Control Act.
              (C) No commodity or software may be exported or reexported to replace equipment that is worn out from normal use, nor may any commodity or software be exported to be held in stock abroad as spare equipment for future use.
              (D) The replacement item may not improve the basic characteristic, e.g., as to accuracy, capability, performance, or productivity, of the equipment as originally authorized, e.g., under a license, license exception or an exemption, for export or reexport.
              (E) No shipment may be made to countries in Country Group E:1 (see supplement no. 1 to this part), or to any other destination to replace defective or otherwise unusable equipment owned or controlled by, or leased or chartered to, a national of any of those countries.
              (F) Commodities or “software” “subject to the EAR” and classified in 9x515 or “600 Series” ECCNs may not be exported or reexported to a destination identified in Country Group D:5 (see supplement no. 1 to this part).
              (ii) In addition to the general conditions in paragraph (b)(3)(i) of this section, the following conditions apply to exports or reexports of replacements for defective or unacceptable commodities or software “subject to the EAR” (see § 734.2(a) of the EAR) to a destination in Country Group B or Country Group D:1 (see supplement no. 1 to this part):
              (A) By making such an export or reexport, the exporter represents that all the requirements of this paragraph (b) have been met and undertakes to destroy or return the replaced parts as provided in paragraph (b)(3)(ii)(C) of this section.
              (B) The defective or otherwise unusable equipment must be replaced free of charge, except for transportation and labor charges. If exporting to the countries listed in Country Group D:1 (except the PRC), the exporter shall replace the commodity or software within the warranty period or within 12 months of its shipment to the ultimate consignee in the country of destination, whichever is shorter.

              (C) The commodity or software to be replaced must either be destroyed abroad or returned to the United States, or to a foreign firm in Country Group B that is under the effective control of the exporter, or to the foreign firm that is providing the replacement part or equipment. The destruction or return must be effected before, or promptly after, the replacement item is exported from the United States.

              (D) A party reexporting replacements for defective or unacceptable U.S.-origin equipment must ensure that the commodities or software being replaced were shipped to their present location in accordance with U.S. law and continue to be legally used. See § 764.7 of the EAR for exports or reexports to the installed base in Libya.
              (c) Special recordkeeping requirements: ECCNs 2A983, 2A984, 2D983 and 2D984, and “600 Series” ECCNs. (1) In addition to the other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this section, for any items exported or reexported pursuant to License Exception RPL to repair, replace, or service previously lawfully exported or reexported items classified under ECCNs 2A983, 2A984, 2D983 and 2D984 or a “600 Series” ECCN. The following information must be maintained for each such export or reexport transaction:
              (i) A description of the item replaced, repaired or serviced;
              (ii) The type of repair or service;
              (iii) Certification of the destruction or return of item replaced;
              (iv) Location of the item replaced, repaired or serviced;
              (v) The name and address of those who received the items for replacement, repair, or service;
              (vi) Quantity of items shipped; and
              (vii) Country of ultimate destination.
              (2) Records maintained pursuant to this section may be requested at any time by an appropriate BIS official as set forth in § 762.7 of the EAR. Records that must be included in the annual or semi-annual reports of exports and reexports of “600 Series” items under the authority of License Exception RPL are described in § 743.4 and § 762.2(b)(4), (b)(47) and (b)(48).
              [78 FR 22712, Apr. 16, 2013, as amended at 78 FR 61901, Oct. 4, 2013; 79 FR 27435, May 13, 2014; 79 FR 32623, June 5, 2014; 79 FR 48661, Aug. 18, 2014]

              § 740.11
              Governments, international organizations, international inspections under the Chemical Weapons Convention, and the International Space Station (GOV).
              This License Exception authorizes exports and reexports for international nuclear safeguards; U.S. government agencies or personnel; agencies of cooperating governments; international inspections under the Chemical Weapons Convention; and the International Space Station.
              (a) International safeguards—(1) Scope. The International Atomic Energy Agency (IAEA) is an international organization that establishes and administers safeguards, including Additional Protocols, designed to ensure that special nuclear materials and other related nuclear facilities, equipment, and material are not diverted from peaceful purposes to non-peaceful purposes. European Atomic Energy Community (Euratom) is an international organization of European countries with headquarters in Luxembourg. Euratom establishes and administers safeguards designed to ensure that special nuclear materials and other related nuclear facilities, equipment, and material are not diverted from peaceful purposes to non-peaceful purposes. This paragraph (a) authorizes exports and reexports of commodities or software to the IAEA and Euratom, and reexports by IAEA and Euratom for official international safeguard use, as follows:
              (i) Commodities or software consigned to the IAEA at its headquarters in Vienna, Austria or its field offices in Toronto, Ontario, Canada or in Tokyo, Japan for official international safeguards use.
              (ii) Commodities or software consigned to the Euratom Safeguards Directorate in Luxembourg, Luxembourg for official international safeguards use.
              (iii) Commodities or software consigned to IAEA or Euratom may be reexported to any country for IAEA or Euratom international safeguards use provided that IAEA or Euratom maintains control of or otherwise safeguards the commodities or software and returns the commodities or software to the locations described in paragraphs (a)(1)(i) and (a)(1)(ii) of this section when they become obsolete, are no longer required, or are replaced.

              (iv) Commodity or software shipments may be made by persons under direct contract with IAEA or Euratom, or by Department of Energy National Laboratories as directed by the Department of State or the Department of Energy.
              (v) The monitoring functions of IAEA and Euratom are not subject to the restrictions on prohibited safeguarded nuclear activities described in § 744.2(a)(3) of the EAR.
              (vi) When commodities or software originally consigned to IAEA or Euratom are no longer in IAEA or Euratom official safeguards use, such commodities may be disposed of by destruction or by reexport or transfer in accordance with the EAR.
              (2) Restrictions. (i) Items on the Sensitive List (see supplement no. 6 to part 774 of the EAR) may not be exported, reexported, or transferred (in-country) under this paragraph (a), except to the countries listed in Country Group A:5 (See supplement no.1 to part 740 of the EAR).
              (ii) Items on the Very Sensitive List (see supplement no. 7 to part 774 of the EAR) may not be exported, reexported, or transferred (in-country) under this paragraph (a).
              (iii) Encryption items controlled for EI reasons under ECCNs 5A002, 5A004, 5D002, or 5E002 may not be exported, reexported, or transferred (in-country) under this paragraph (a). See § 740.17 of the EAR (License Exception ENC) for possible alternative license exception authorization.
              (iv) Without prior authorization from the Bureau of Industry and Security, nationals of countries in Country Group E:1(see supplement no. 1 to this part) may not physically or computationally access computers that have been enhanced by “electronic assemblies,” which have been exported or reexported under License Exception GOV and have been used to enhance such computers by aggregation of processors so that the APP of the aggregation exceeds the APP parameter set forth in ECCN 4A003.b.

              (v) “600 series” items may not be exported or reexported under this paragraph (a), except to the countries listed in Country Group A:5 (see supplement no.1 to this part).
              (b) United States Government—(1) Scope. The provisions of this paragraph (b) authorize exports, reexports, and transfers (in-country) to personnel and agencies of the U.S. Government and certain exports by the Department of Defense. “Agency of the U.S. Government” includes all civilian and military departments, branches, missions, government-owned corporations, and other agencies of the U.S. Government, but does not include such national agencies as the American Red Cross or international organizations in which the United States participates such as the Organization of American States. Therefore, shipments may not be made to these non-governmental national or international agencies, except as provided in paragraph (b)(2)(i) of this section for U.S. representatives to these organizations.
              (2) Eligibility—(i) Items for personal use by personnel and agencies of the U.S. Government. This provision is available for items in quantities sufficient only for the personal use of members of the U.S. Armed Forces or civilian personnel of the U.S. Government (including U.S. representatives to public international organizations), and their immediate families and household employees. Items for personal use include household effects, food, beverages, and other daily necessities.
              (ii) Exports, reexports, and transfers (in-country) made by or consigned to a department or agency of the U.S. Government. This paragraph authorizes exports, reexports, and transfers of items when made by or consigned to a department or agency of the U.S. Government solely for its official use or for carrying out any U.S. Government program with foreign governments or international organizations 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 make any export, reexport, or transfer 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 purpose of this provision means those persons who provide administrative, managerial, scientific or technical support under contract to a U.S. Government department or agency (e.g., contractor employees of Federally Funded Research Facilities or Systems Engineering and Technical Assistance contractors). The term 'contractor support personnel' for purposes of this paragraph (b)(2)(ii) is limited to those individuals who are providing such support within a U.S. Government owned or operated facility or under the direct supervision of a U.S. government employee (i.e., an individual directly employed by the U.S. Government). Private security contractors are not 'contractor support personnel' for purposes of this paragraph (b)(2)(ii) because although they may work within a U.S. Government owned or operated facility, such contractors do not provide administrative, managerial, scientific or technical support under contract to the U.S. Government. This authorization is not available when a department or agency of the U.S. Government acts as a transmittal agent on behalf of a non-U.S. Government person, either as a convenience or in satisfaction of security requirements.
              (iii) Exports, reexports, and transfers (in-country) made for or on behalf of a department or agency of the U.S. Government. (A) This paragraph authorizes exports, reexports, and transfers (in-country) of items solely for use by a department or agency of the U.S. Government, when:
              (1) The items are destined to a U.S. person; and
              (2) The item is exported, reexported, or transferred (in-country) pursuant to a contract between the exporter and a department or agency of the U.S. Government;
              (B) This paragraph authorizes exports, reexports, and transfers (in-country) of items to implement or support any U.S. Government cooperative program, project, agreement, or arrangement with a foreign government or international organization or agency that is authorized by law and subject to control by the President by other means, when:
              (1) The agreement is in force and in effect, or the arrangement is in operation;
              (2) The exporter, reexporter, or transferor obtains a written authorization from the Secretary or agency head of the U.S. Government department or agency responsible for the program, agreement, or arrangement, or his or her designee, authorizing the exporter, reexporter, or transferor to use this license exception. The written authorization must include the scope of items to be shipped under this license exception; the end users and consignees of the items; and any restrictions on the export, reexport, or transfer (in-country) (including any restrictions on the foreign release of technology);
              (3) The exporter, reexporter, or transferor has a contract with a department or agency of the U.S. Government for the provision of the items in furtherance of the agreement, or arrangement; and
              (4) The items being exported, reexported, or transferred (in-country) are not controlled for Chemical Weapons Convention (CW) or proliferation of chemical and biological weapons (CB) reasons;
              (C) This paragraph authorizes the 'temporary' export, reexport, or transfer (in-country) of an item in support of any foreign assistance or sales program authorized by law and subject to the control of the President by other means, when:
              (1) The item is provided pursuant to a contract between the exporter, reexporter, or transferor and a department or agency of the U.S. Government; and
              (2) The exporter, reexporter, or transferor obtains a written authorization from the Secretary or agency head of the U.S. Government department or agency responsible for the program, or his or her designee, authorizing the exporter, reexporter, or transferor to use this license exception. The written authorization must include the scope of items to be shipped under this license exception; the end users and consignees of the items; and any restrictions on the export, reexport, or transfer (in-country) (including any restrictions on the foreign release of technology);

                Note 1 to paragraph (b)(2)(iii)(C):

                'Temporary,' for purposes of paragraph (b)(2)(iii)(C) of this section, means that four years from the date of an item's initial export, reexport, or transfer (in-country), it must be returned to the exporter, reexporter, or transferor or its disposition otherwise authorized (e.g., pursuant to a license or another license exception) in accordance with the EAR.

              (D) This paragraph authorizes the export, reexport, or transfer of commodities or software at the direction of the U.S. Department of Defense for an end use in support of an Acquisition and Cross Servicing Agreement (ACSA), when:
              (1) The ACSA is between the U.S. Government and a foreign government or an international organization and is in force and in effect;
              (2) The exporter, reexporter, or transferor has a contract with the department or agency of the U.S. government in furtherance of the ACSA; and
              (3) The exporter, reexporter, or transferor obtains a written authorization from the Secretary or agency head of the U.S. Government department or agency responsible for the ACSA, or his or her designee, authorizing the exporter, reexporter, or transferor to use this license exception. The written authorization must include the scope of items to be shipped under this license exception; the end-users and consignees of the items; and any restrictions on the export, reexport, or transfer (in-country);
              (E) This paragraph authorizes the export, reexport, or transfer (in-country) of Government Furnished Equipment (GFE) made by a U.S. Government contractor, when:
              (1) The GFE will not be provided to any foreign person;
              (2) The export, reexport, or transfer (in-country) is pursuant to a contract with a department or agency of the U.S. Government; and
              (3) Shipment documents must include the following statement: “Property of [insert U.S. Government department, agency, or service]. Property may not enter the trade of the country to which it is shipped. Authorized under License Exception GOV. U.S. Government point of contact: [Insert name and telephone number].”
              (F) Electronic Export Information. Electronic Export Information (EEI) must be filed in the Automated Export System (AES) for any export made pursuant to paragraph (b)(iii) of this section. The EEI must identify License Exception GOV as the authority for the export and indicate that the applicant has received the relevant documentation from the contracting U.S. Government department, agency, or service. The Internal Transaction Number assigned by AES must be properly annotated on shipping documents (bill of lading, airway bill, other transportation documents, or commercial invoice).
              (G) The exporter, reexporter, or transferor must obtain an authorization, if required, before any item previously exported, reexported, or transferred (in-country) under this paragraph is resold, transferred, reexported, transshipped, or disposed of to an end user for any end use, or to any destination other than as authorized by this paragraph (e.g., property disposal of surplus items outside of the United States), unless:
              (1) The transfer is pursuant to a grant, sale, lease, loan, or cooperative project under the Arms Export Control Act or the Foreign Assistance Act of 1961, as amended; or
              (2) The item has been destroyed or rendered useless beyond the possibility of restoration.
              (iv) Items exported at the direction of the U.S. Department of Defense. This paragraph authorizes items to be exported, reexported, or transferred (in-country) pursuant to an official written request or directive from the U.S. Department of Defense.
              (v) This paragraph authorizes items sold, leased, or loaned by the U.S. Department of Defense to a foreign country or international organization pursuant to the Arms Export Control Act or the Foreign Assistance Act of 1961 when the items are delivered to representatives of such a country or organization in the United States and exported, reexported, or transferred on a military aircraft or naval vessel of that government or organization or via the Defense Transportation Service.

              (vi) This paragraph authorizes transfer of technology in furtherance of a contract between the exporter and an agency of the U.S. Government, if the contract provides for such technology and the technology is not “development” or “production” technology for “600 series” items.

              (c) Cooperating Governments and the North Atlantic Treaty Organization—(1) Scope. The provisions of this paragraph (c) authorize exports, reexports, and transfers (in-country) of the items listed in paragraph (c)(2) of this section to agencies of cooperating governments or agencies of the North Atlantic Treaty Organization (NATO). 'Agency of a cooperating government' includes all civilian and military departments, branches, missions, and other governmental agencies of a cooperating national government. 'Cooperating governments' are the national governments of countries listed in Country Group A:1 (see supplement no. 1 to this part) and the national governments of Hong Kong, Singapore and Taiwan.

                Note 1 to paragraph (c)(1):
                Civil intergovernmental organizations (such as the European Space Agency (ESA)) where the membership is limited to national governments that are 'cooperating governments' are also considered 'cooperating governments' for purposes of paragraph (c)(1) of this section. If the membership of the civil intergovernmental organization includes any national governments or other organizations that are not 'cooperating governments,' such civil intergovernmental organizations are not considered 'cooperating governments' for purposes of paragraph (c)(1) of this section. For example, civil intergovernmental organizations such as the European Aviation Safety Agency (EASA), the United Nations, and the World Bank do not fall within paragraph (c)(1) of this section because their membership includes governments that are not 'cooperating governments.'

              (2) Eligibility—(i) Items for official use within national territory by agencies of cooperating governments. This license exception is available for all items consigned to and for the official use of any ‘agency of a cooperating government’ within the territory of any cooperating government, except items excluded by paragraph (c)(3) of this section.
              (ii) Items for official use by agencies of cooperating governments for military purposes or NATO. With the exception of items excluded by paragraph (c)(3) of this section, this license exception is available for all items consigned to and for the official use of:
              (A) A military end user of or for the military end use of cooperating governments, or
              (B) An agency of NATO.
              (iii) Diplomatic and consular missions of a cooperating government. This license exception is available for all items consigned to and for the official use of a diplomatic or consular mission of a cooperating government located in any country in Country Group B (see supplement no. 1 to this part), except items excluded by paragraph (c)(3) of this section.
              (3) Exclusions. The following items may not be exported, reexported, or transferred (in-country) under this paragraph (c):

              (i) Items on the Sensitive List (see supplement no. 6 to part 774 of the EAR), except to or for the use by governments of countries listed in Country Group A:5 (see supplement no. 1 to this part) or an agency of NATO;
              (ii) Items on the Very Sensitive List (see supplement no. 7 to part 774 of the EAR);
              (iii) Encryption items controlled for EI reasons under ECCNs 5A002, 5A004, 5D002, or 5E002 (see § 740.17 of the EAR for License Exception ENC);
              (iv) Regional stability items controlled under ECCNs 6A002.a.1.c, 6E001 “technology” according to the General Technology Note for the “development” of equipment in 6A002.a.1.c, and 6E002 “technology” according to the General Technology Note for the “production” of equipment in 6A002.a.1.c.;
              (v) “600 series” items, except to or for the use by governments of countries listed in Country Group A:5 (see supplement no. 1 to this part) or an agency of NATO;
              (vi) Items controlled for nuclear nonproliferation (NP) reasons; or
              (vii) Items listed as not eligible for License Exception STA in § 740.20(b)(2)(ii) of the EAR.
              (d) International inspections under the Chemical Weapons Convention (CWC or Convention). (1) The Organization for the Prohibition of Chemical Weapons (OPCW) is an international organization that establishes and administers an inspection and verification regime under the Convention designed to ensure that certain chemicals and related facilities are not diverted from peaceful purposes to non-peaceful purposes. This paragraph (d) authorizes exports and reexports to the OPCW and exports and reexports by the OPCW for official international inspection and verification use under the terms of the Convention as follows:
              (i) Commodities and software consigned to the OPCW at its headquarters in The Hague for official international OPCW use for the monitoring and inspection functions set forth in the Convention, and technology relating to the maintenance, repair, and operation of such commodities and software. The OPCW must maintain “effective control” of such commodities, software and technology.
              (ii) Controlled technology relating to the training of the OPCW inspectorate.
              (iii) Controlled technology relating to a CWC inspection site, including technology released as a result of:
              (A) Visual inspection of U.S.-origin equipment or facilities by foreign nationals of the inspection team;
              (B) Oral communication of controlled technology to foreign nationals of the inspection team in the U.S. or abroad; and
              (C) The application to situations abroad of personal knowledge or technical experience acquired in the U.S.
              (2) Exclusions. The following items may not be exported or reexported under the provisions of this paragraph (d):
              (i) Inspection samples collected in the U.S. pursuant to the Convention;
              (ii) Commodities and software that are no longer in OPCW official use. Such items must be transferred in accordance with the EAR.
              (iii) “600 series” items, except to the countries listed in Country Group A:5 (see supplement no. 1 to this part).
              (3) Confidentiality. The application of the provisions of this paragraph (d) is subject to the condition that the confidentiality of business information is strictly protected in accordance with applicable provisions of the EAR and other U.S. laws regarding the use and transfer of U.S. goods and services.
              (4) Restrictions. Without prior authorization from the Bureau of Industry and Security, nationals of countries in Country Group E:1 (see supplement no. 1 to this part) may not physically or computationally access computers that have been enhanced by “electronic assemblies,” which have been exported or reexported under License Exception GOV and have been used to enhance such computers by aggregation of processors so that the APP of the aggregation exceeds the APP parameter set forth in ECCN 4A003.b.
              (e) International Space Station (ISS)—(1) Scope. The ISS is a research facility in a low-Earth orbit approximately 190 miles (350 km) above the surface of the Earth. The ISS is a joint project among the space agencies of the United States, Russia, Japan, Canada, Europe and Italy. This paragraph (e) authorizes exports and reexports required on short notice of certain commodities subject to the EAR that are classified under ECCN 9A004 to launch sites for supply missions to the ISS.
              (2) Eligible commodities. Any commodity subject to the EAR that is classified under ECCN 9A004 and that is required for use on the ISS on short notice.

                Note 1 to paragraph (e)(2):
                This license exception is not available for the export or reexport of “parts,” “components,” “accessories,” and “attachments” to overseas manufacturers for the purpose of incorporation into other items destined for the ISS.

                Note 2 to paragraph (e)(2):
                For purposes of this paragraph (e), ‘short notice’ means the exporter is required to have a commodity manifested and at the scheduled launch site for hatch-closure (final stowage) no more than forty-five (45) days from the time the exporter or reexporter received complete documentation. ‘Complete documentation’ means the exporter or reexporter received the technical description of the commodity and purpose for use of the commodity on the ISS. ‘Hatch-closure (final stowage)’ means the final date specified by a launch provider by which items must be at a specified location in a launch country in order to be included on a mission to the ISS. The exporter or reexporter must receive the notification to supply the commodity for use on the ISS in writing. That notification must be kept in accordance with paragraph (e)(8) of this section and the Recordkeeping requirements in part 762 of the EAR.

              (3) Eligible destinations. Eligible destinations are France, Japan, Kazakhstan, and Russia. To be eligible, a destination needs to have a launch for a supply mission to the ISS scheduled by a country participating in the ISS.
              (4) Requirement for commodities to be launched on an eligible space launch vehicle (SLV). Only commodities that will be delivered to the ISS using United States, Russian, ESA (French), or Japanese space launch vehicles (SLVs) are eligible under this authorization. Commodities to be delivered to the ISS using SLVs from any other countries are excluded from this authorization.
              (5) Authorizations—(i) Authorization to retain commodity at or near launch site for up to six months. If there are unexpected delays in a launch schedule for reasons such as mechanical failures in a launch vehicle or weather, commodities exported or reexported under this paragraph (e) may be retained at or near the launch site for a period of six (6) months from the time of initial export or reexport before the commodities must be destroyed, returned to the exporter or reexporter, or be the subject of an individually validated license request submitted to BIS to authorize further disposition of the commodities.
              (ii) Authorization to retain commodity abroad at launch country beyond six months. If, after the commodity is exported or reexported under this authorization, a delay occurs in the launch schedule that would exceed the 6-month deadline in paragraph (e)(5)(i) of this section, the exporter or reexporter or the person in control of the commodities in the launch country may request a one-time 6-month extension by submitting written notification to BIS requesting a 6-month extension and noting the reason for the delay. If the requestor is not contacted by BIS within 30 days from the date of the postmark of the written notification and if the notification meets the requirements of this subparagraph, the request is deemed granted. The request must be sent to BIS at the address listed in part 748 of the EAR and should include the name and address of the exporter or reexporter, the name and address of the person who has control of the commodity, the date the commodities were exported or reexported, a brief product description, and the justification for the extension. To retain a commodity abroad beyond the 6-month extension period, the exporter, reexporter or person in control of the commodity must request authorization by submitting a license application in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS 90 days prior to the expiration of the 6-month extension period.
              (iii) Items not delivered to the ISS because of a failed launch. If the commodities exported or reexported under this paragraph (e) of this section are not delivered to the ISS because a failed launch causes the destruction of the commodity prior to its being delivered, exporters and reexporters must make note of the destruction of the commodities in accordance with the recordkeeping requirements under paragraph (e)(8)(ii) of this section and part 762 of the EAR.
              (6) Reexports to an alternate launch country. If a mechanical or weather related issue causes a change from the scheduled launch country to another foreign country after a commodity was exported or reexported, then that commodity may be subsequently reexported to the new scheduled launch country, provided all of the terms and conditions of paragraph (e) of this section are met, along with any other applicable EAR provisions. In such instances, the 6-month time limitation described in paragraph (e)(5)(i) of this section would start over again at the time of the subsequent reexport transaction. Note that if the subsequent reexport may be made under the designation No License Required (NLR) or pursuant to an authorization under the EAR, a reexporter does not need to rely on the provisions contained in this paragraph (e).
              (7) Eligible recipients. Only persons involved in the launch of commodities to the ISS may receive and have access to commodities exported or reexported pursuant to this paragraph (e), except that:
              (i) No commodities may be exported, reexported, or transferred (in-country) under paragraph (e) to any national of an E:1 country (see supplement no. 1 to this part), and
              (ii) No person may receive commodities authorized under paragraph (e) of this section who is subject to an end-user or end-use control described in part 744 of the EAR, including the entity list in supplement no. 4 to part 744.
              (8) Recordkeeping requirements. Exporters and reexporters must maintain records regarding exports or reexports made using this paragraph (e) of this section as well as any other applicable recordkeeping requirements under part 762 of the EAR.
              (i) Exporters and reexporters must retain a record of the initial written notification they received requesting these commodities be supplied on short notice for a supply mission to the ISS, including the date the exporter or reexporter received complete documentation (i.e., the day on which the 45-day clock begins).
              (ii) Exporters and reexporters must maintain records of the date of any exports or reexports made using this paragraph (e) and the date on which the commodities were launched into space for delivery to the ISS. If the commodities are not delivered to the ISS because of a failed launch whereby the item is destroyed prior to being delivered to the ISS, this must be noted for recordkeeping purposes.
              (iii) The return or destruction of defective or worn out parts or components is not required. However, if defective or worn out parts or components originally exported or reexported pursuant to this paragraph (e) are returned from the ISS, then those parts and components may be either: returned to the original country of export or reexport; destroyed; or reexported or transferred (in-country) to a destination that has been designated by NASA for conducting a review and analysis of the defective or worn part or component. Documentation for this activity must be kept for recordkeeping purposes. No commodities that are subject to the EAR may be returned, under the provisions of this paragraph, to a country listed in Country Group E:1 (see supplement no. 1 to this part) or to any person if that person is subject to an end-user or end-use control described in part 744 of the EAR. For purposes of paragraph (e) of this section, a ‘defective or worn out’ part or component is a part or component that no longer performs its intended function.
              [78 FR 22714, Apr. 16, 2013, as amended at 79 FR 32624, June 5, 2014; 80 FR 29442, May 21, 2015; 81 FR 64669, Sept. 20, 2016; 82 FR 50515, Nov. 1, 2017]

              § 740.12
              Gift parcels and humanitarian donations (GFT).
              (a) Gift parcels—(1) Scope. The provisions of paragraph (a) authorize exports and reexports of gift parcels by an individual (donor) addressed to an individual, or a religious, charitable or educational organization (donee) located in any destination for the use of the donee or the donee's immediate family (and not for resale). The gift parcel must be provided free of charge to the donee. However, payment by the donee of any handling charges or of any fees levied by the importing country (e.g., import duties, taxes, etc.) is not considered to be a cost to the donee for purposes of this definition of “gift parcel.” 1

                  1 Many foreign countries permit the entry, duty-free, of gift parcels that conform to regulations regarding contents and marking. To secure this advantage, the sender should show the words “U.S.A. Gift Parcel” on the addressee side of the package and on any required customs declarations. Information regarding the foreign postal regulations is available at local post offices. Senders of gift parcels who wish information regarding import duties of a foreign country should contact the nearest Commercial Office, Consulate or Embassy of the country concerned.

              (2) Commodity, value and other limitations—(i) Item limitations—(A) Prohibited items. (1) For Cuba no items listed on the Commerce Control List other than items listed in § 740.19(b) of the EAR may be included in a gift parcel.
              (2) For all destinations, no items controlled for chemical and biological weapons (CB), missile technology (MT), national security (NS), nuclear proliferation (NP) or encryption items (EI) reasons on the Commerce Control List (supplement no. 1 to part 774 of the EAR) may be included in a gift parcel.
              (3) Items prohibited for destinations in Country Group D:1 or E:2. For destinations in Country Group D:1 or E:2, military wearing apparel may not be included in a gift parcel regardless of whether all distinctive U.S. military insignia, buttons, and other markings are removed.
              (4) Gold bullion, gold taels, and gold bars are prohibited as are items intended for resale or reexport.

              (B) Eligible items. For all destinations, eligible items are food (including vitamins); medicines, medical supplies and devices (including hospital supplies and equipment and equipment for the handicapped); receive-only radio equipment for reception of commercial/civil AM/FM and short wave publicly available frequency bands, and batteries for such equipment; clothing; personal hygiene items; seeds; veterinary medicines and supplies; fishing equipment and supplies; soap-making equipment; as well as all other items of a type normally sent as gifts between individuals (including items listed in § 740.19(b) of the EAR) except for those items prohibited in paragraph (a)(2)(i)(A) of this section. Items in gift parcels must be in quantities normally given as gifts between individuals.

                Example to paragraph (a)(2)(i)(B) of this section.
                A watch or piece of jewelry is normally sent as a gift. However, multiple watches, either in one package or in subsequent shipments, would not qualify for such gift parcels because the quantity would exceed that normally given between individuals. Similarly, a sewing machine or bicycle within the value limit of this License Exception may be an appropriate gift. However, subsequent shipments of the same item to the same donee would not be a gift normally given between individuals.

              (ii) Import requirements. The commodities must be acceptable in type and quantity by the recipient country for import as gifts. Commodities exceeding the import limits may not be included in gift parcels.
              (iii) Frequency. (A) Except for gift parcels of food to Cuba, not more than one gift parcel may be sent from the same donor to the same donee in any one calendar month.
              (B) There is no frequency limit on gift parcels of food to Cuba.
              (C) Parties seeking authorization to exceed the frequency limit due to compelling humanitarian concerns (e.g., for certain gifts of medicine) should submit a license application in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS with complete justification.
              (iv) Value. The combined total domestic retail value of all commodities and software in a single gift parcel may not exceed $800. This limit does not apply to food sent in a gift parcel to Cuba.
              (v) Ineligible recipients. (A) No gift parcel may be sent to any of the following officials of the Cuban government: Ministers and Vice-Ministers; members of the Council of State; members of the Council of Ministers; members and employees of the National Assembly of People's Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; or members and employees of the Supreme Court (Tribuno Supremo Nacional).
              (B) No gift parcel may be sent to any member of the Politburo.
              (C) No gift parcel may be sent to organizations administered or controlled by the Cuban Government or the Cuban Communist Party.
              (3) How to export gift parcels. (i) A gift parcel must be sent directly to the donee by the individual donor, or for such donor by a commercial or other gift-forwarding service or organization. Each gift parcel must show, on the outside wrapper, the name and address of the donor, as well as the name and address of the donee, regardless of whether sent by the donor or by a forwarding service.
              (ii) Each parcel must have the notation “GIFT—Export License Not Required” written on the addressee side of the package and the symbol “GFT” written on any required customs declaration.
              (b) Humanitarian donations—(1) Scope. The provisions of paragraph (b) authorize exports or reexports by groups or organizations of donations to meet basic human needs when those groups or organizations have experience in maintaining a verifiable system of distribution that ensures delivery to the intended beneficiaries.

              (2) Basic human needs. Basic human needs are defined as those requirements essential to individual well-being: health, food, clothing, shelter, and education. These needs are considered to extend beyond those of an emergency nature and those that meet direct needs for mere subsistence.
              (3) Eligible donors. Eligible donors are U.S. charitable organizations that have an established record of involvement in donative programs and experience in maintaining and verifying a system of distribution to ensure delivery of commodities and software to the intended beneficiaries. Eligible distribution arrangements may consist of any one or more of the following:
              (i) A permanent staff maintained in the recipient country to monitor the receipt and distribution of the donations to the intended beneficiaries;
              (ii) Periodic spot-checks in the recipient country by members of the exporter's staff; or
              (iii) An agreement to utilize the services of a charitable organization that has a monitoring system in place.
              (4) Donations. To qualify for export under the provisions of this paragraph (b), the items must be provided free of charge to the beneficiary. The payment by the beneficiary, however, of normal handling charges or fees levied by the importing country (e.g., import duties, taxes, etc.) is not considered to be a cost to the beneficiary for purposes of this paragraph (b).
              (5) Ineligible commodities and software. The following commodities and software are not eligible:
              (i) Commodities and software controlled for national security, chemical or biological weapons, and nuclear nonproliferation, missile technology or crime control reasons (see supplement no. 1 to part 774 of the EAR);
              (ii) Exports for large-scale projects of the kind associated with comprehensive economic growth, such as dams and hydroelectric plants; or
              (iii) Exports to Cuba of medical items excluded by § 746.2(b)(1) of the EAR.
              (6) Eligible items. Eligible commodities and software are those listed in supplement no. 2 to part 740.
              (7) Additional recordkeeping requirements. In addition to the recordkeeping requirements in part 762 of the EAR, donors must keep records containing the following information:
              (i) The donor organization's identity and past experience as an exporter of goods to meet basic human needs;
              (ii) Past and current countries to which the donative programs have been and are being directed, with particular reference to donative programs in embargoed destinations;
              (iii) Types of projects and commodities involved in the donative programs;
              (iv) Specific class(es) of beneficiaries of particular donated goods intended to be exported under this License Exception; and
              (v) Information concerning the source of funding for the donative programs and the projected annual value of exports of humanitarian donations.
              [61 FR 64282, Dec. 4, 1996. Redesignated at 61 FR 68579, Dec. 30, 1996; 62 FR 25458, May 9, 1997; 69 FR 5690, Feb. 6, 2004; 69 FR 34566, June 22, 2004; 72 FR 3945, Jan. 29, 2007; 72 FR 43531, Aug. 6, 2007; 73 FR 35, Jan. 2, 2008; 73 FR 33673, June 13, 2008; 73 FR 49328, Aug. 21, 2008; 74 FR 45988, Sept. 3, 2009; 79 FR 32624, June 5, 2014; 80 FR 2289, Jan. 16, 2015; 81 FR 71366, Oct. 17, 2016; 82 FR 51985, Nov. 9, 2017]

              § 740.13
              Technology and software—unrestricted (TSU).
              This license exception authorizes exports and reexports of operation technology and software; sales technology and software; software updates (bug fixes); “mass market” software subject to the General Software Note; and release of technology and source code in the United States by U.S. universities to their bona fide and full time regular employees. Note that encryption software subject to the EAR is not subject to the General Software Note (see paragraph (d)(2) of this section).
              (a) Operation technology and software—(1) Scope. The provisions of paragraph (a) permit exports and reexports of operation technology and software. “Operation technology” is the minimum technology necessary for the installation, operation, maintenance (checking), or repair of those commodities or software that are lawfully exported or reexported under a license, a License Exception, or NLR. The “minimum necessary” operation technology does not include technology for development or production and includes use technology only to the extent required to ensure safe and efficient use of the commodity or software. Individual entries in the software and technology subcategories of the CCL may further restrict the export or reexport of operation technology. This paragraph (a) authorizes training, provided the training is limited to the operation, maintenance and repair technology identified in this paragraph.
              (2) Provisions and destinations—(i) Provisions. Operation software may be exported or reexported provided that both of the following conditions are met:
              (A) The operation software is the minimum necessary to operate equipment authorized for export or reexport; and
              (B) The operation software is in object code.
              (ii) Destinations. Operation software and technology may be exported or reexported to any destination to which the equipment for which it is required has been or is being legally exported or reexported.
              (b) Sales technology—(1) Scope. The provisions of paragraph (b) authorize exports and reexports of sales technology. “Sales technology” is data supporting a prospective or actual quotation, bid, or offer to sell, lease, or otherwise supply any item.
              (2) Provisions and destinations—(i) Provisions. Sales technology may be exported or reexported provided that:
              (A) The technology is a type customarily transmitted with a prospective or actual quotation, bid, or offer in accordance with established business practice; and
              (B) Neither the export nor the reexport will disclose the detailed design, production, or manufacture technology, or the means of reconstruction, of either the quoted item or its product. The purpose of this limitation is to prevent disclosure of technology so detailed that the consignee could reduce the technology to production.
              (ii) Destinations. Sales technology may be exported or reexported to any destination.

                Note:
                Neither this section nor its use means that the U.S. Government intends, or is committed, to approve a license application for any commodity, plant, software, or technology that may be the subject of the transaction to which such quotation, bid, or offer relates. Exporters are advised to include in any quotations, bids, or offers, and in any contracts entered into pursuant to such quotations, bids, or offers, a provision relieving themselves of liability in the event that a license (when required) is not approved by the Bureau of Industry and Security.

              (c) Software updates. The provisions of paragraph (c) authorize exports and reexports of software updates that are intended for and are limited to correction of errors (“fixes” to “bugs”) in software lawfully exported or reexported (original software). Such software updates may be exported or reexported only to the same consignee to whom the original software was exported or reexported, and such software updates may not enhance the functional capacities of the original software. Such software updates may be exported or reexported to any destination to which the software for which they are required has been legally exported or reexported.
              (d) General Software Note: mass market software—(1) Scope. The provisions of paragraph (d) authorize exports and reexports of mass market software subject to the General Software Note (see supplement no. 2 to part 774 of the EAR; also referenced in this section). 2

                  2 Pursuant to 15 CFR § 30.37(f) of the Foreign Trade Regulations (FTR), Electronic Export Information (EEI) via the Automated Export System (AES) is required for mass-market software.

              (2) Exclusions. The provisions of this paragraph (d) are not available for encryption software controlled for “EI” reasons under ECCN 5D002 or for encryption software with symmetric key length exceeding 64-bits that qualifies as mass market encryption software under the criteria in the Cryptography Note (Note 3) of Category 5, Part 2, of the Commerce Control List (supplement no. 1 to part 774 of the EAR). (Once such mass market encryption software has been reviewed by BIS and released from “EI” and “NS” controls pursuant to § 742.15(b) of the EAR, it is controlled under ECCN 5D992.c and is thus outside the scope of License Exception TSU.) See § 742.15(b) of the EAR for exports and reexports of mass market encryption products controlled under ECCN 5D992.c.
              (3) Provisions and destinations—(i) Destinations. Mass market software is available to all destinations except destinations in Country Group E:1 (see supplement no. 1 to this part).
              (ii) Provisions. Mass market treatment is available for software that is generally available to the public by being:
              (A) Sold from stock at retail selling points, without restriction, by means of:
              (1) Over the counter transactions;
              (2) Mail order transactions; or
              (3) Telephone call transactions; and
              (B) Designed for installation by the user without further substantial support by the supplier.
              (e) [Reserved]
              (f) Release of technology and source code in the U.S. by U.S. universities to their bona fide and full time regular employees—(1) Scope. This paragraph authorizes the release in the United States of “technology” and source code that is subject to the EAR by U.S. universities to foreign nationals who are their bona fide and full time regular employees.
              (2) Eligible foreign nationals (i.e., bona fide and full time regular employees of U.S. universities). This exception is only available if:
              (i) The employee's permanent residence throughout the period of employment is in the U.S.;
              (ii) The employee is not a national of a destination listed in Country Group D:5 (see supplement no. 1 to part 740 of the EAR); and
              (iii) The university informs the individual in writing that the “technology” or source code may not be transferred to other foreign nationals without prior U.S. Government authorization. The obligation not to transfer technology extends beyond the tenure of employment at the university.
              (3) Regular employee. A regular employee means:
              (i) An individual permanently and directly employed by the university; or
              (ii) An individual in a long-term contractual relationship with the university where the individual works at the university's facilities; works under the university's direction and control; works full time and exclusively for the university; executes nondisclosure certifications for the university; and where the staffing agency that has seconded the individual has no role in the work the individual performs (other than providing that individual for that work) and the staffing agency would not have access to any controlled technology (other than where specifically authorized by a license or where a license exception is available).
              (4) Exclusions. (i) No “technology” or source code may be released to a foreign national who is subject to a part 744 end-use or end-user control or where the release would otherwise be inconsistent with part 744; and
              (ii) No “technology” controlled for “EI” (encryption) reasons or “technology” or source code controlled for “MT” (Missile Technology) reasons may be released under this paragraph (f).
              (g) Copies of technology previously authorized for export to same recipient. This paragraph authorizes the export, reexport, or transfer (in-country) of copies of technology previously authorized for export, reexport, or transfer (in-country) to the same recipient. This paragraph also authorizes the export, reexport, or transfer (in-country) of revised copies of such technology provided the following three conditions are met:
              (1) The item that the technology pertains to is the identical item;
              (2) The revisions to the technology are solely editorial and do not add to the content of technology previously exported, reexported, or transferred (in-country) or authorized for export, reexport, or transfer (in-country) to the same recipient; and
              (3) The exporter, reexporter, or transferor has no reason to believe the same recipient has used the technology in violation of the original authorization.
              (h) Special recordkeeping requirements: ECCNs 2D983, 2D984, 2E983 and 2E984. In addition to any other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this paragraph, when exporting operation software or technology controlled under ECCNs 2D983, 2D984, 2E983, and 2E984, respectively, under License Exception TSU. Records maintained pursuant to this section may be requested at any time by an appropriate BIS official as set forth in § 762.7 of the EAR. The following information must be specially maintained for each export or reexport transaction, under License Exception TSU, of operation software and technology controlled by ECCNs 2D983, 2D984, 2E983, and 2E984:
              (1) A description of the software or technology exported or reexported, including the ECCN, as identified on the CCL;
              (2) A description of the equipment for which the software or technology is intended to be used, including the ECCN, as indentified on the CCL;
              (3) The intended end-use of the software or technology;
              (4) The name and address of the end-user;
              (5) The quantity of software shipped; and
              (6) The location of the equipment for which the software or technology is intended to be used, including the country of destination.
              [61 FR 64283, Dec. 4, 1996. Redesignated at 61 FR 68579, Dec. 30, 1996]

                Editorial Note:
                For Federal Register citations affecting § 740.13, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 740.14
              Baggage (BAG).
              (a) Scope. This License Exception authorizes individuals leaving the United States either temporarily (i.e., traveling) or longer-term (i.e., moving) and crew members of exporting or reexporting carriers to take to any destination, as personal baggage, the classes of commodities, software and technology described in this section.
              (b) Eligibility. Individuals leaving the United States may export or reexport any of the following commodities or software for personal use of the individuals or members of their immediate families traveling with them to any destination or series of destinations. Individuals leaving the United States who are U.S. persons, as defined in paragraph (b)(4)(i), may export or reexport technology as a tool of trade under paragraph (b)(4) for their personal use or for the personal use of members of their immediate families who are traveling or moving with them, provided they are also U.S. persons, as defined in paragraph (b)(4)(i), to any destination or series of destinations. Technology exports and reexports authorized under paragraph (b)(4) of this section may be made as actual shipments, transmissions, or releases. Individuals leaving the United States temporarily (i.e., traveling) must bring back items exported and reexported under this License Exception unless they consume the items abroad or are otherwise authorized to dispose of them under the EAR. Crew members may export or reexport only commodities and software described in paragraphs (b)(1) and (b)(2) of this section to any destination.
              (1) Personal effects. Usual and reasonable kinds and quantities for personal use of wearing apparel, articles of personal adornment, toilet articles, medicinal supplies, food, souvenirs, games, and similar personal effects, and their containers.
              (2) Household effects. Usual and reasonable kinds and quantities for personal use of furniture, household effects, household furnishings, and their containers.
              (3) Vehicles. Usual and reasonable kinds and quantities of vehicles, such as passenger cars, station wagons, trucks, trailers, motorcycles, bicycles, tricycles, perambulators, and their containers.
              (4) Tools of trade. Usual and reasonable kinds and quantities of tools, instruments, or equipment and their containers and also technology for use in the trade, occupation, employment, vocation, or hobby of the traveler or members of the household who are traveling or moving. For special provisions regarding encryption commodities and software subject to EI controls, see paragraph (f) of this section. For a special provision that specifies restrictions regarding the export or reexport of technology under this paragraph, see paragraph (g).

              (i) For purposes of this paragraph (b), U.S. person is defined as follows: an individual who is a citizen of the United States, an individual who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(2) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3).
              (ii) [Reserved]
              (c) Limits on eligibility. The export of any item is limited or prohibited, if the kind or quantity is in excess of the limits described in this section. In addition, the items must be:
              (1) Owned by the individuals (or by members of their immediate families) or by crew members of exporting carriers on the dates they depart from the United States;
              (2) Intended for and necessary and appropriate for the use of the individuals or members of their immediate families traveling with them, or by the crew members of exporting carriers;
              (3) Not intended for sale or other disposal; and
              (4) Not exported under a bill of lading as cargo if exported by crew members.
              (d) Special provision: unaccompanied baggage. Individuals departing the United States may ship unaccompanied baggage, which is baggage sent from the United States on a carrier other than that on which an individual departs. Crew members of exporting carriers may not ship unaccompanied baggage. Unaccompanied shipments under this License Exception shall be clearly marked “BAGGAGE.” Shipments of unaccompanied baggage may be made at the time of, or within a reasonable time before or after departure of the consignee or owner from the United States. Personal baggage controlled for chemical and biological weapons (CB), missile technology (MT), national security (NS), encryption items (EI) or nuclear nonproliferation (NP) must be shipped within 3 months before or after the month in which the consignee or owner departs the United States. However, commodities controlled for CB, MT, NS, EI or NP may not be exported under this License Exception as unaccompanied baggage to Country Groups D:1, D:2, D:3, D:4, or E:1. (See supplement no. 1 of this part).
              (e) Special provisions: shotguns and shotgun shells. (1) A United States citizen or a permanent resident alien leaving the United States may export or reexport shotguns with a barrel length of 18 inches or over and shotgun shells under this License Exception, subject to the following limitations:
              (i) Not more than three shotguns may be taken on any one trip.
              (ii) The shotguns and shotgun shells must be with the person's baggage but they may not be mailed.
              (iii) The shotguns and shotgun shells must be for the person's exclusive use for legitimate hunting or lawful sporting purposes, scientific purposes, or personal protection, and not for resale or other transfer of ownership or control. Accordingly, except as provided in (e)(2) of this section, shotguns may not be exported permanently under this License Exception. All shotguns and unused shotgun shells must be returned to the United States. Note that since certain countries may require an Import Certificate or a U.S. export license before allowing the import of a shotgun, you should determine the import requirements of your country of destination in advance.
              (2) A nonresident alien leaving the United States may export or reexport under this License Exception only such shotguns and shotgun shells as he or she brought into the United States under the provisions of the Department of Justice Regulations (27 CFR 478.115(d)).
              (f) Special provisions: encryption commodities and software subject to EI controls on the Commerce Control List. (1) A U.S. citizen or permanent resident alien of the United States as defined by 8 U.S.C. 1101(a)(20) may use this license exception to export or reexport encryption commodities and software to any destination not in Country Group E:1 of supplement no. 1 of this part.
              (2) A person other than a U.S. citizen or permanent resident alien of the United States as defined by 8 U.S.C. 1101(a)(20) (except a national of a country listed in Country Group E:1 of supplement no. 1 of this part who is not a U.S. citizen or permanent resident alien of the United States) may also use this license exception to export or reexport encryption commodities and software to any destination not in Country Group E:1 of supplement no. 1 of this part.
              (g) Special provision: restrictions for Export or Reexport of Technology. This authorization for the export or reexport of technology under the tools of trade provisions of paragraph (b)(4) of this section may be used only if:
              (1) The technology is to be used overseas solely by individuals or members of their immediate families traveling with them provided they are U.S. persons as defined in paragraph (b)(4)(i).
              (2) The exporting or reexporting party and the recipient take adequate security precautions to protect against unauthorized access to the technology while the technology is being transmitted and used overseas. Examples of security precautions to help prevent unauthorized access include the following:
              (i) Use of secure connections, such as Virtual Private Network connections when accessing IT networks for e-mail and other business activities that involve the transmission and use of the technology authorized under this license exception;
              (ii) Use of password systems on electronic devices that will store the technology authorized under this license exception; and
              (iii) Use of personal firewalls on electronic devices that will store the technology authorized under this license exception.
              (3) The technology authorized under these provisions may not be used for foreign production purposes or for technical assistance unless authorized by BIS;
              (4) Any encryption item controlled under ECCN 5E002 is not exported or reexported to any destination listed in Country Group E:1 of supplement no. 1 of this part.
              (h) Special provisions: personal protective equipment classified under ECCN 1A613.c or .d—(1) Exports, reexports, or in-country transfers to countries not identified in Country Group D:5. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries not identified in Country Group D:5, provided that:

              (i) The items are with the U.S. person's baggage or effects, whether accompanied or unaccompanied (but not mailed); and

              (ii) The items are for that person's exclusive use and not for transfer of ownership unless reexported or transferred (in-country) to another U.S. person.
              (2) Exports, reexports, or in-country transfers to countries identified in Country Group D:5—(i) Iraq. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to Iraq, for personal use, provided that the requirements in paragraph (h)(1) of this section are met. In addition, the U.S. person must be affiliated with the U.S. Government and traveling on official business or traveling in support of a U.S. Government contract, or the U.S. person must be traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. Documentation regarding direct authorization from the Government of Iraq shall include an English translation.
              (ii) Other countries in Country Group D:5. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries in Country Group D:5 (except Iraq), for personal use, provided that the requirements in paragraph (h)(1) of this section are met, and the U.S. person is affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract.

                Note to paragraph (h):
                Body armor controlled under ECCN 1A005 is eligible for this License Exception under paragraph (b) of this section.

              [61 FR 12768, Mar. 25, 1996. Redesignated at 61 FR 64274, Dec. 4, 1996. Redesignated at 61 FR 68579, Dec. 30, 1996]

                Editorial Note:
                For Federal Register citations affecting § 740.14, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 740.15
              Aircraft, vessels and spacecraft (AVS).
              This License Exception authorizes departure from the United States of foreign registry civil aircraft on temporary sojourn in the United States and of U.S. civil aircraft for temporary sojourn abroad; the export of equipment and spare parts for permanent use on a vessel or aircraft; exports to vessels or planes of U.S. or Canadian registry and U.S. or Canadian Airlines' installations or agents; the export or reexport of cargo that will transit Cuba on an aircraft or vessel on temporary sojourn; and the export of spacecraft and components for fundamental research. Generally, no License Exception symbol is necessary for export clearance purposes; however, when necessary, the symbol “AVS” may be used.
              (a) Aircraft on temporary sojourn—(1) Foreign registered aircraft. An operating civil aircraft of foreign registry that has been in the United States on a temporary sojourn may depart from the United States under its own power for any destination, provided that:
              (i) No sale or transfer of operational control of the aircraft to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) has occurred while in the United States;
              (ii) The aircraft is not departing for the purpose of sale or transfer of operational control to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part); and
              (iii) It does not carry from the United States any item for which an export license is required and has not been granted by the U.S. Government.
              (2) U.S. registered aircraft. (i) A civil aircraft of U.S. registry operating under an Air Carrier Operating Certificate, Commercial Operating Certificate, or Air Taxi Operating Certificate issued by the Federal Aviation Administration (FAA) or conducting flights under operating specifications approved by the FAA pursuant to 14 CFR part 129, or an air ambulance of U.S. registry operating under 14 CFR part 135, may depart from the United States under its own power for any destination, provided that:
              (A) The aircraft does not depart for the purpose of sale, lease or other disposition of operational control of the aircraft, or its equipment, parts, accessories, or components to a foreign country or any national thereof;
              (B) The aircraft's U.S. registration will not be changed while abroad;
              (C) The aircraft is not to be used in any foreign military activity while abroad; and
              (D) The aircraft does not carry from the United States any item for which a license is required and has not been granted by the U.S. Government.
              (ii) Any other operating civil aircraft of U.S. registry may depart from the United States under its own power for any destination, except to or a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) (flights to these destinations require a license), provided that:
              (A) The aircraft does not depart for the purpose of sale, lease or other disposition of operational control of the aircraft, or its equipment, parts, accessories, or components to a foreign country or any national thereof;
              (B) The aircraft's U.S. registration will not be changed while abroad;
              (C) The aircraft is not to be used in any foreign military activity while abroad;
              (D) The aircraft does not carry from the United States any item for which an export license is required and has not been granted by the U.S. Government; and
              (E) The aircraft will be operated while abroad by a U.S. licensed pilot, except that during domestic flights within a foreign country, the aircraft may be operated by a pilot currently licensed by that foreign country.
              (3) Criteria. The following ten criteria each must be met if the flight is to qualify as a temporary sojourn. To be considered a temporary sojourn, the flight must not be for the purpose of sale or transfer of operational control. An export is for the transfer of operational control unless the exporter retains each of the following indicia of control:

              (i) Hiring of cockpit crew. Right to hire and fire the cockpit crew.
              (ii) Dispatch of aircraft. Right to dispatch the aircraft.
              (iii) Selection of routes. Right to determine the aircraft's routes (except for contractual commitments entered into by the exporter for specifically designated routes).
              (iv) Place of maintenance. Right to perform or obtain the principal maintenance on the aircraft, which principal maintenance is conducted outside a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), under the control of a party who is not a national of any of these countries. (The minimum necessary in-transit maintenance may be performed in any country).
              (v) Location of spares. Spares are not located in a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
              (vi) Place of registration. The place of registration is not changed to a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
              (vii) Transfer of technology. No technology is transferred to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), except the minimum necessary for in-transit maintenance to perform flight line servicing required to depart safely.
              (viii) Color and logos. The aircraft does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
              (ix) Flight number. The aircraft does not fly under a flight number issued to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) as such number appears in the Official Airline Guide.
              (x) Lease or charter. The aircraft is not leased to or chartered by a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
              (4) Reexports. Civil aircraft legally exported from the United States may be reexported under this section, provided the restrictions described in this paragraph (a) are met.

                Note to paragraph (a):
                An aircraft exported or reexported to a country pursuant to this paragraph (a) may not remain in that country for more than seven consecutive days before it departs for a country to which it may be exported without a license or the United States.

              (b) Equipment and spare parts for permanent use on a vessel or aircraft, and ship and plane stores—(1) Vessel. Equipment and spare parts for permanent use on a vessel, when necessary for the proper operation of such vessel, may be exported or reexported for use on board a vessel of any registry, except a vessel registered in Country Group D:1 (see supplement no. 1 to part 740), Cuba, or owned or controlled by, or under charter or lease to any of these countries or their nationals. In addition, other equipment and services for necessary repair to fishing and fishery support vessels of Country Group D:1 may be exported for use on board such vessels when admitted into the United States under governing international fishery agreements.
              (2) Aircraft. Equipment and spare parts for permanent use on an aircraft, when necessary for the proper operation of such aircraft, may be exported or reexported for use on board an aircraft of any registry, except an aircraft registered in, owned or controlled by, or under charter or lease to a country included in Country Group D:1, Cuba, or a national of any of these countries.
              (3) Ship and plane stores. Usual and reasonable kinds and quantities of the following commodities may be exported for use or consumption on board an aircraft or vessel of any registry during the outgoing and immediate return flight or voyage.
              (i) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements;
              (ii) Medical and surgical supplies;
              (iii) Food stores;
              (iv) Slop chest articles;
              (v) Saloon stores or supplies.
              (4) Cuba. Only items designated as EAR99 or controlled on the Commerce Control List (CCL) (supplement no. 1 to part 774 of the EAR) only for anti-terrorism reasons (i.e., anti-terrorism must be the only reason for control that applies to the item as set forth in the Export Control Classification Number (ECCN) that controls the item) are eligible for export or reexport to Cuba pursuant to this paragraph (b).

              (c) Shipments to U.S. or Canadian vessels, planes and airline installations or agents—(1) Exports to vessels or planes of U.S. or Canadian registry. Export may be made of the commodities set forth in paragraph (c)(3) of this section, for use by or on a specific vessel or plane of U.S. or Canadian registry located at any seaport or airport outside the United States or Canada except a port in Cuba or Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided that such commodities are all of the following: 3

                  3 Where a license is required, see §§ 748.1, 748.4 and 748.6 of the EAR.

              (i) Ordered by the person in command or the owner or agent of the vessel or plane to which they are consigned;
              (ii) Intended to be used or consumed on board such vessel or plane and necessary for its proper operation;
              (iii) In usual and reasonable kinds and quantities during times of extreme need; and
              (iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of the commodities, other than fuel, is exported by U.S. airlines to their own aircraft abroad for their own use, see 15 CFR 30.37(o) of the FTR.
              (2) Exports to U.S. or Canadian airline's installation or agent. Exports of the commodities set forth in paragraph (c)(3) of this section, except fuel, may be made to a U.S. or Canadian airline's 4
                 installation or agent in any foreign destination except Cuba or Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided such commodities are all of the following:

                  4 See part 772 of the EAR for definitions of United States and Canadian airlines.

              (i) Ordered by a U.S. or Canadian airline and consigned to its own installation or agent abroad;
              (ii) Intended for maintenance, repair, or operation of aircraft registered in either the United States or Canada, and necessary for the aircraft's proper operation, except where such aircraft is located in, or owned, operated or controlled by, or leased or chartered to, Cuba or Country Group D:1 (excluding the PRC) (see supplement no. 1 to part 740) or a national of such country;
              (iii) In usual and reasonable kinds and quantities; and
              (iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of these commodities is exported by U.S. airlines to their own installations and agents abroad for use in their aircraft operations, see 15 CFR 30.37(o) of the FTR.
              (3) Applicable commodities. This paragraph (c) applies to the following commodities, subject to the provisions in paragraph (c)(1) and (c)(2) of this section:
              (i) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements;
              (ii) Medical and surgical supplies;
              (iii) Food stores;
              (iv) Slop chest articles;
              (v) Saloon stores or supplies; and
              (vi) Equipment and spare parts.
              (d) Vessels on temporary sojourn—(1) Foreign flagged vessels. A foreign flagged vessel in the United States may depart from the United States under its own power for any destination, provided that:
              (i) No sale or transfer of operational control of the vessel to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) has occurred while in the United States;
              (ii) The vessel is not departing for the purpose of sale or transfer of operational control to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part); and
              (iii) The vessel does not carry from the United States any item for which a license is required and has not been granted by the U.S. Government.
              (2) U.S. flagged vessels. A U.S. flagged vessel may depart from the United States under its own power for any destination, provided that:

              (i) The vessel does not depart for the purpose of sale, lease, or transfer of operational control of the vessel, or its equipment, parts, accessories, or components, to a foreign country or any national thereof;
              (ii) The vessel's U.S. flag will not be changed while abroad;
              (iii) The vessel will not be used in any foreign military activity while abroad;
              (iv) The vessel will not carry from the United States any item for which a license is required and has not been granted by the U.S. Government;
              (v) Spares for the vessel are not located in a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part);
              (vi) Technology is not transferred to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), except the minimum necessary in-transit maintenance to perform servicing required to depart and enter a port safely; and
              (vii) The vessel does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
              (3) Criteria for temporary sojourn of vessels. The following criteria must be met if a voyage is to be considered a temporary sojourn under this paragraph (d). To be considered a temporary sojourn, the voyage must not be for the purpose of sale or transfer of operational control. A transfer of operational control occurs unless the exporter or reexporter retains each of the following indicia of control:
              (i) Hiring of crew. Right to hire and fire the crew.
              (ii) Dispatch of vessel. Right to dispatch the vessel.
              (iii) Selection of routes. Right to determine the vessel's routes (except for contractual commitments entered into by the exporter for specifically designated routes).
              (iv) Place of maintenance. Right to perform or obtain the principal maintenance on the vessel, which principal maintenance is conducted outside a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), under the control of a party who is not a national of any of these countries. (The minimum necessary in-transit maintenance may be performed in any country).
              (v) Lease or charter. The vessel is not leased to or chartered by a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
              (4) Reexports. Vessels subject to the EAR may be reexported under this section on temporary sojourn, provided that:
              (i) The vessel does not depart for the purpose of sale, lease, or transfer of operational control of the vessel, or its equipment, parts, accessories, or components, to a foreign country or any national thereof;
              (ii) The vessel's flag will not be changed while abroad;
              (iii) The vessel will not be used in any foreign military activity while abroad;
              (iv) The vessel will not carry any item for which a license is required and has not been granted by the U.S. Government;
              (v) Spares for the vessel are not located in a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part);
              (vi) Technology is not transferred to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), except the minimum necessary in-transit maintenance to perform servicing required to depart and enter a port safely; and
              (vii) The vessel does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
              (5) No vessels may be exported or reexported under this License Exception to a country in Country Group E:1.
              (6) Cuba, eligible vessels and purposes. For Cuba, only cargo vessels for hire for use in the transportation of items are eligible for this paragraph (d).

                Note 1 to paragraph (d):
                A vessel exported or reexported to a country pursuant to this paragraph (d) may not remain in that country for more than 14 consecutive days before it departs for a country to which it may be exported without a license or the United States.

              (e) Intransit cargo. Cargo laden on board an aircraft or vessel may transit Cuba provided:

              (1) The aircraft or vessel is exported or reexported on temporary sojourn to Cuba pursuant to paragraph (a) or (d) of this section or a license from BIS; and
              (2) The cargo departs with the aircraft or vessel at the end of its temporary sojourn to Cuba, is not removed from the aircraft or vessel for use in Cuba and is not transferred to another aircraft or vessel while in Cuba.
              (f) Spacecraft for launch. This paragraph (e) authorizes the export by accredited U.S. institutions of higher learning of commodities subject to the EAR fabricated only for fundamental research purposes when all of the following conditions are met:
              (1) The export is to an accredited institution of higher learning, a governmental research center, or an established government funded private research center located in a country other than Country Group D:5 (see supp. no. 1 to this part) and involves exclusively nationals of such countries;
              (2) All the information about the commodity, including its design, and all of the resulting information obtained through fundamental research involving the commodity will be published and shared broadly within the scientific community, and is not restricted for proprietary reasons or specific U.S. government access and dissemination controls or other restrictions accepted by the institution or its researchers on publication of scientific and technical information resulting from the project or activity (see § 734.11 of the EAR); and
              (3) If the commodity is for permanent export, the platform or system into which the commodity will be incorporated must be a scientific, research, or experimental satellite and must be exclusively concerned with fundamental research and may only be launched into space from countries and by nationals of countries not identified in Country Group D:5.
              [61 FR 12678, Mar. 25, 1996. Redesignated and amended at 61 FR 64274, 64283, Dec. 4, 1996. Redesignated at 61 FR 68579, Dec. 30, 1996]

                Editorial Note:
                For Federal Register citations affecting § 740.15, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 740.16
              Additional permissive reexports (APR).
              This License Exception allows the following reexports:
              (a) Reexports from Country Group A:1 and Hong Kong. Reexports may be made from countries in Country Group A:1 or from Hong Kong, provided that:
              (1) The reexport is made in accordance with the conditions of an export authorization from the government of the reexporting country;
              (2) The commodities being reexported are not controlled for NP, CB, MT, SI or CC reasons or described in ECCN 0A919, 3A001.b.2 or b.3 (except those that are being reexported for use in civil telecommunications applications), 6A002, or 6A003; and
              (3) The reexport is destined to either:

              (i) A country in Country Group B that is not also included in Country Group D:2, D:3, or D:4; and the commodity being reexported is both controlled for national security reasons and not controlled for export to Country Group A:1; or
              (ii) A country in Country Group D:1 (National Security) (see supplement no. 1 to part 740), other than North Korea and the commodity being reexported is controlled for national security reasons.
              (b) Reexports to and among specified countries. (1) Eligible commodities may be reexported to and among destinations in Country Group A:1 and Hong Kong for use or consumption within a destination in Country Group A:1 (see supplement no. 1 to part 740) or Hong Kong, or for reexport from such country in accordance with other provisions of the EAR.
              (2) Commodities not eligible for reexport under paragraph (b)(1) are:
              (i) Commodities controlled for nuclear nonproliferation or missile technology reasons;
              (ii) Commodities in 3A001.b.2 or b.3 (except those that are being reexported for use in civil telecommunications applications);
              (iii) “Military commodities” described in ECCN 0A919;
              (iv) Commodities described in ECCN 0A987 that incorporate an image intensifier tube; or
              (v) Commodities described in ECCN 6A002.

              (3) Cameras described in ECCNs 6A003 may be exported or reexported to and among countries in Country Group A:1 (see supplement no. 1 to this part) if:
              (i) Such cameras are fully packaged for use as consumer ready civil products; or
              (ii) Such cameras with not more than 111,000 elements are to be embedded in civil products.
              (c) Reexports to a destination to which direct shipment from the United States is authorized under an unused outstanding license may be made under the terms of that license. Such reexports shall be recorded in the same manner as exports are recorded, regardless of whether the license is partially or wholly used for reexport purposes. (See part 762 of the EAR for recordkeeping requirements.)
              (d) Reexports of any item from Canada that, at the time of reexport, may be exported directly from the United States to the new country of destination under any License Exception.
              (e) Reexports (return) to the United States of any item. If the reexporting party requests written authorization because the government of the country from which the reexport will take place requires formal U.S. Government approval, such authorization will generally be given.
              (f) Reexports from a foreign destination to Canada of any item if the item could be exported to Canada without a license.
              (g) [Reserved]
              (h) Shipments of foreign-made products that incorporate U.S.-origin components may be accompanied by U.S.-origin controlled spare parts, provided that they do not exceed 10 percent of the value of the foreign-made product, subject to the restrictions in § 734.4 of the EAR.
              (i) Reexports to Sudan of items controlled by ECCNs 2A994; 3A992.a; 5A991.g; 5A992; 6A991; 6A998; 7A994; 8A992.d, .e, .f, and .g; 9A990.a and .b; and 9A991.d and .e. In addition, items in these ECCNs are not counted as controlled U.S. content for purposes of determining license requirements for U.S. parts, components, and materials incorporated in foreign-made products. However, the export from the United States to any destination with knowledge that they will be reexported directly or indirectly, in whole or in part to Sudan is prohibited without a license.
              (j) Reexports of items controlled by NP Column 1 (see supplement no. 1 to part 774 of the EAR) to, among, and from countries described in Country Group A:4 (see supplement no. 1 to part 740), except:
              (1) Reexports from countries that are not identified in Country Group A:1 of items that are controlled for NS reasons to destinations in Country Group D:1; and
              (2) Reexports to destinations in Country Group E:2 and Country Group D:2.
              [61 FR 12768, Mar. 25, 1996. Redesignated at 61 FR 64274, Dec. 4, 1996. Redesignated at 61 FR 68579, Dec. 30, 1996]

                Editorial Note:
                For Federal Register citations affecting § 740.16, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 740.17
              Encryption commodities, software, and technology (ENC).

              License Exception ENC authorizes export, reexport, and transfer (in-country) of systems, equipment, commodities, and components therefor that are classified under ECCNs 5A002, 5B002, equivalent or related software and technology therefor classified under 5D002 or 5E002, and “cryptanalytic items” classified under ECCNs 5A004, 5D002 or 5E002. This License Exception ENC does not authorize export or reexport to, transfer (in-country) in, or provision of any service in any country listed in Country Groups E:1 or E:2 in supplement no. 1 to part 740 of the EAR, or release of source code or technology to any national of a country listed in Country Groups E:1 or E:2. Reexports and transfers (in-country) under License Exception ENC are subject to the criteria set forth in paragraph (c) of this section. Paragraphs (b) and (d) of this section set forth information about classifications required by this section. Items described in paragraphs (b)(1) and (b)(3)(i), (ii), or (iv) of this section that meet the criteria set forth in Note 3 to Category 5—Part 2 of the Commerce Control List (the “mass market” note) are classified under ECCN 5A992.c or 5D992.c following self-classification or classification by BIS and are no longer subject to “EI” and “NS” controls. Paragraph (e) sets forth reporting required by this section. For items exported under paragraphs (b)(1), (b)(3)(i), (ii), or (iv) of this section and therefore excluded from paragraph (e) reporting requirements, exporters are reminded of the recordkeeping requirements in part 762 of the EAR and that they may be required to make such records available upon request. All classification requests, and reports submitted to BIS pursuant to this section for encryption items will be reviewed by the ENC Encryption Request Coordinator, Ft. Meade, MD.
              (a) No classification request or reporting required. License Exception ENC authorizes the export, reexport, or transfer (in-country) to the end users and for the end uses set forth in paragraphs (a)(1) through (3) of this section, without submission of a classification request, self-classification report or sales report to BIS.
              (1) Certain exports, reexports, transfers (in-country) to 'private sector end users'—(i) Internal “development” or “production” of new products. License Exception ENC authorizes certain exports, reexports, and transfers (in-country) of items described in paragraph (a) of this section for the internal “development” or “production” of new products by 'private sector end users,' wherever located, that are headquartered in a country listed in supplement no. 3 of this part.
              (ii) Certain exports, reexports, transfers (in-country) to related parties, not involving “development” or “production” of new products. For internal end uses among 'private sector end users' other than the “development” or “production” of new products, License Exception ENC authorizes exports, reexports, and transfers (in-country) of non-U.S.-origin items, described in paragraph (a) of this section, to 'private sector end users' wherever located provided that:
              (A) That item became subject to the EAR after it was produced;
              (B) All parties to the transaction are subsidiaries of the same parent company headquartered in a country listed in supplement no. 3 of this part; and

              (C) The characteristics or capabilities of the existing item are not enhanced, unless otherwise authorized by license or license exception.

                Note to paragraph (a)(1):
                A 'private sector end user' is either: An individual who is not acting on behalf of any foreign government; or a commercial firm (including its subsidiary and parent firms, and other subsidiaries of the same parent) that is not wholly owned by, otherwise controlled by or acting on behalf of, any foreign government.

              (2) Exports, reexports, transfers (in-country) to “U.S. Subsidiaries.” License Exception ENC authorizes export, reexport, and transfer (in-country) of items described in paragraph (a) of this section to any “U.S. subsidiary,” wherever located. License Exception ENC also authorizes export, reexport, transfer (in-country) of such items by a U.S. company and its subsidiaries to foreign nationals who are employees, individual contractors or interns of a U.S. company or its subsidiaries if the items are for internal company use, including the “development” or “production” of new products, without prior review by the U.S. Government.

                Note to paragraphs (a)(1) and (2):
                All items produced or developed with items exported, reexported, or transferred (in-country) under paragraphs (a)(1) or (2) of this section are subject to the EAR. These items may require the submission of a classification request before sale, reexport or transfer to non-“U.S. subsidiaries,” unless otherwise authorized by license or license exception.

              (3) Reexports and transfers (in-country) of non-U.S. products developed with or incorporating U.S.-origin encryption source code, components, or toolkits. License Exception ENC authorizes the reexport and transfer (in-country) of non-U.S. products developed with or incorporating U.S.-origin encryption source code, components or toolkits that are subject to the EAR, provided that the U.S.-origin encryption items have previously been classified or reported and authorized by BIS and the cryptographic functionality has not been changed. Such products include non-U.S. developed products that are designed to operate with U.S. products through a cryptographic interface.

                Note to paragraph (a)(3):
                This exception from classification and reporting requirements does not apply to non-U.S.-origin products exported from the United States.

              (b) Classification request or self-classification report. For products described in paragraph (b)(1) of this section that are self-classified by the exporter, a self-classification report in accordance with paragraph (e)(3) of this section is required from specified exporters, reexporters and transferors; for products described in paragraph (b)(1) of this section that are classified by BIS via a CCATS, a self-classification report is not required. For products described in paragraphs (b)(2) and (3) of this section, a thirty-day (30-day) classification request is required in accordance with paragraph (d) of this section. An exporter, reexporter, or transferor may rely on the producer's self-classification (for products described in (b)(1), only) or CCATS for an encryption item eligible for export or reexport under License Exception ENC under paragraph (b)(1), (2), or (3) of this section. Exporters are still required to comply with semi-annual sales reporting requirements under paragraph (e)(1) or (2) of this section, even if relying on a CCATS issued to a producer for specified encryption items described in paragraphs (b)(2) and (b)(3)(iii) of this section.

                Note to paragraph (b) introductory text:
                Mass market encryption software that would be considered publicly available under § 734.3(b)(3) of the EAR, and is authorized for export under this paragraph (b), remains subject to the EAR until all applicable classification or self-classification requirements set forth in this section are fulfilled.

              (1) Immediate authorization. This paragraph (b)(1) authorizes the exports, reexports, and transfers (in-country) of the associated commodities self-classified under ECCNs 5A002.a or 5B002, and equivalent or related software therefor classified under 5D002, except any such commodities, software, or components described in (b)(2) or (3) of this section, subject to submission of a self-classification report in accordance with § 740.17(e)(3) of the EAR. Items described in this paragraph (b)(1) that meet the criteria set forth in Note 3 to Category 5—Part 2 of the Commerce Control List (the “mass market” note) are classified as ECCN 5A992.c or 5D992.c following self-classification or classification by BIS and are removed from “EI” and “NS” controls.
              (2) Classification request required. Thirty (30) days after the submission of a classification request with BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph under License Exception ENC authorizes certain exports, reexports, and transfers (in-country) of the items specified in paragraph (b)(2) and submitted for classification.

                Note to paragraph (b)(2) introductory text:
                Immediately after the classification request is submitted to BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph also authorizes exports, reexports, and transfers (in-country) of:
                1. All submitted encryption items described in this paragraph (b)(2), except “cryptanalytic items,” to any end user located or headquartered in a country listed in supplement no. 3 to this part;
                2. Encryption source code as described in paragraph (b)(2)(i)(B) to non-“government end users” in any country;
                3. “Cryptanalytic items” to non-“government end users,” only, located or headquartered in a country listed in supplement no. 3 to this part; and
                4. Items described in paragraphs (b)(2)(iii) and (b)(2)(iv)(A) of this section, to specified destinations and end users.

              (i) Cryptographic commodities, software, and components. License Exception ENC authorizes exports, reexports, and transfers (in-country) of the items in paragraph (b)(2)(i)(A) of this section to “less sensitive government end users” and non- “government end users” located or headquartered in a country not listed in supplement no. 3 to this part, and the items in paragraphs (b)(2)(i)(B) through (H) to non “government end users” located or headquartered in a country not listed in supplement no. 3.
              (A) 'Network Infrastructure.' 'Network infrastructure' commodities and software, and components therefor, meeting any of the following with key lengths exceeding 80-bits for symmetric algorithms:
              (1) WAN, MAN, VPN, backhaul and long-haul. Aggregate encrypted WAN, MAN, VPN, backhaul or long-haul throughput (including communications through wireless network elements such as gateways, mobile switches, and controllers) equal to or greater than 250 Mbps;
              (2) [Reserved]
              (3) Satellite infrastructure. Transmission over satellite at data rates exceeding 10 Mbps;
              (4) Media gateways and other unified communications (UC) infrastructure, including Voice-over-Internet Protocol (VoIP) services. Media (voice/video/data) encryption or encrypted signaling to more than 2,500 endpoints, including centralized key management therefor; or

              (5) Terrestrial wireless infrastructure. Air interface coverage (e.g., through base stations, access points to mesh networks, and bridges) exceeding 1,000 meters, where any of the following applies:
              (i) Maximum transmission data rates exceeding 10 Mbps (at operating ranges beyond 1,000 meters); or

              (ii) Maximum number of concurrent full-duplex voice channels exceeding 30;

                Notes to paragraph (b)(2)(i)(A):

                1. The License Exception ENC eligibility restrictions of paragraphs (b)(2)(i)(A)(3) (satellite infrastructure) and (b)(2)(i)(A)(5) (terrestrial wireless infrastructure) do not apply to satellite terminals or modems meeting all of the following:
                a. The encryption of data over satellite is exclusively from the user terminal to the gateway earth station, and limited to the air interface; and
                b. The items meet the requirements of the Cryptography Note (Note 3) in Category 5—Part 2 of the Commerce Control List.
                2. 'Network infrastructure' (as applied to encryption items). A 'network infrastructure' commodity or software is any “end item,” commodity or “software” for providing one or more of the following types of communications:”
                (a) Wide Area Network (WAN);
                (b) Metropolitan Area Network (MAN);
                (c) Virtual Private Network (VPN);
                (d) Satellite;
                (e) Digital packet telephony/media (voice, video, data) over Internet protocol;
                (f) Cellular; or
                (g) Trunked.

                Note 1 to paragraph 2:
                'Network infrastructure' end items are typically operated by, or for, one or more of the following types of end users:
                (1) Medium- or large- sized businesses or enterprises;
                (2) Governments;
                (3) Telecommunications service providers; or
                (4) Internet service providers.

                Note 2 to paragraph 2:
                Commodities, software, and components for the “cryptographic activation” of a 'network infrastructure' item are also considered 'network infrastructure' items.

              (B) Certain “encryption source code.” “Encryption source code” that is not publicly available as that term is used in § 742.15(b) of the EAR;
              (C) Customized items. Encryption software, commodities and components therefor, where any of the following applies:
              (1) Customized for government end users or end uses. The item has been designed, modified, adapted, or customized for “government end user(s);” or

              (2) Custom or changeable cryptography. The cryptographic functionality of the item has been designed or modified to customer specification or can be easily changed by the user;

              (D) Quantum cryptography. ECCN 5A002.c or 5D002 “quantum cryptography” commodities or software;
              (E) [Reserved]
              (F) Network penetration tools. Encryption commodities and software that provide penetration capabilities that are capable of attacking, denying, disrupting or otherwise impairing the use of cyber infrastructure or networks;
              (G) Public safety/first responder radio (private mobile radio (PMR)). Public safety/first responder radio (e.g., implementing Terrestrial Trunked Radio (TETRA) and/or Association of Public-Safety Communications Officials International (APCO) Project 25 (P25) standards);
              (H) Specified cryptographic ultra-wideband and “spread spectrum” items. Encryption commodities and components therefor, classified under ECCNs 5A002.d or .e, and equivalent or related software therefor classified under ECCN 5D002.
              (ii) Cryptanalytic commodities and software. “Cryptanalytic items” classified in ECCN 5A004 or 5D002 to non- “government end users” located or headquartered in countries not listed in supplement no. 3 to this part.
              (iii) “Open cryptographic interface” items. Items that provide an “open cryptographic interface,” to any end user located or headquartered in a country listed in supplement no. 3 to this part.
              (iv) Specific encryption technology. Specific encryption technology as follows:
              (A) Technology for “non-standard cryptography.” Encryption technology classified under ECCN 5E002 for “non-standard cryptography,” to any end user located or headquartered in a country listed in supplement no. 3 to this part;
              (B) Other technology. Encryption technology classified under ECCN 5E002 except technology for “cryptanalytic items,” “non-standard cryptography” or any “open cryptographic interface,” to any non-“government end user” located in a country not listed in Country Group D:1, E:1, or E:2 of supplement no. 1 to part 740 of the EAR.

                Note to paragraph (b)(2):
                Commodities, components, and software classified under ECCNs 5A002.b or 5D002.b, for the “cryptographic activation” of commodities or software specified by this paragraph (b)(2) are also controlled under this paragraph (b)(2).

              (3) Classification request required for specified commodities, software, and components. Thirty (30) days after a classification request is submitted to BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph authorizes exports, reexports, and transfers (in-country) of the items submitted for classification, as further described in this paragraph (b)(3), to any end user, provided the item does not perform the functions, or otherwise meet the specifications, of any item described in paragraph (b)(2) of this section. Items described in paragraphs (b)(3)(i), (ii), or (iv) of this section that meet the criteria set forth in Note 3 to Category 5—Part 2 of the Commerce Control List (the “mass market” note) are classified under ECCN 5A992.c or 5D992.c following classification by BIS.

                Note to introductory text of paragraph (b)(3):
                Immediately after the classification request is submitted to BIS in accordance with paragraph (d) of this section and subject to the reporting requirements in paragraph (e) of this section, this paragraph also authorizes exports, reexports, transfers (in-country) of the items described in this paragraph (b)(3) to any end user located or headquartered in a country listed in supplement no. 3 to this part.

              (i) “Components,” toolsets, and toolkits. Specified components classified under ECCN 5A002.a and equivalent or related software classified under ECCN 5D002 not described by paragraph (b)(2) of this section, as follows:
              (A) Chips, chipsets, electronic assemblies and field programmable logic devices;
              (B) Cryptographic libraries, modules, development kits and toolkits, including for operating systems and cryptographic service providers (CSPs).
              (ii) “Non-standard cryptography” (by items not otherwise described in paragraph (b)(2) of this section.) Encryption commodities, software and components not described by paragraph (b)(2) of this section, that provide or perform “non-standard cryptography” as defined in part 772 of the EAR.
              (iii) Advanced network vulnerability analysis and digital forensics. Encryption commodities and software not described by paragraph (b)(2) of this section, that provide or perform vulnerability analysis, network forensics, or computer forensics functions characterized by any of the following:
              (A) Automated network vulnerability analysis and response. Automated network analysis, visualization, or packet inspection for profiling network flow, network user or client behavior, or network structure/topology and adapting in real-time to the operating environment; or

              (B) Digital forensics, including network or computer forensics. Investigation of data leakage, network breaches, and other malicious intrusion activities through triage of captured digital forensic data for law enforcement purposes or in a similarly rigorous evidentiary manner.
              (iv) “Cryptographic activation” commodities, components, and software. Commodities, components, and software classified under ECCNs 5A002.b or 5D002.b where the product or cryptographic functionality is not otherwise described in paragraphs (b)(2) or (b)(3)(i) of this section.
              (c) Reexport and transfer (in-country). Distributors, resellers or other entities who are not original manufacturers of encryption commodities and software are permitted to use License Exception ENC only in instances where the reexport or transfer (in-country) meets the applicable terms and conditions of this section. Transfers of encryption items listed in paragraph (b)(2) of this section to “government end users,” or for government end uses, within the same country are prohibited, unless otherwise authorized by license or license exception.
              (d) Classification request procedures—(1) Submission requirements and instructions. To submit a classification request to BIS, you must submit an application to BIS in accordance with the procedures described in §§ 748.1 and 748.3 of the EAR and the instructions in paragraph (r) of supplement no. 2 to part 748 “Unique Application and Submission Requirements,” along with other required information as follows:
              (i) [Reserved]
              (ii) Technical information submission requirements. For all submissions of encryption classification requests for items described under paragraph (b)(2) or (b)(3) of this section, you must submit the applicable information described in paragraphs (a) through (d) of supplement no. 6 to part 742 of the EAR (Technical Questionnaire for Encryption Items). For items eligible for self-classification that are submitted to BIS for classification you may be required to provide BIS this supplement no. 6 to part 742 information on an as-needed basis, upon request by BIS.
              (iii) Changes in encryption functionality following a previous classification. A new product encryption classification request (under paragraphs (b)(2) or (b)(3) of this section) is required if a change is made to the cryptographic functionality (e.g., algorithms) or other technical characteristics affecting License Exception ENC eligibility (e.g., encrypted throughput) of the originally classified product. However, a new product classification request is not required when a change involves: the subsequent bundling, patches, upgrades or releases of a product; name changes; or changes to a previously reviewed encryption product where the change is limited to updates of encryption software components where the product is otherwise unchanged.
              (2) Action by BIS. (i) [Reserved]
              (ii) For items requiring classification by BIS under paragraphs (b)(2) and (3) of this section. (A) For classifications that require a thirty (30-day) waiting period, if BIS has not, within thirty days (30 days) from registration in SNAP-R of your complete classification request, informed you that your item is not authorized for License Exception ENC, you may export, reexport, or transfer (in-country) under the applicable provisions of License Exception ENC.
              (B) Upon completion of its classification, BIS will issue a Commodity Classification Automated Tracking System (CCATS) to you.
              (C) Hold Without Action (HWA) for classification requests. BIS may hold your classification request without action if necessary to obtain additional information or for any other reason necessary to ensure an accurate classification. Time on such “hold without action” status shall not be counted towards fulfilling the thirty-day (30-day) processing period specified in this paragraph.

              (iii) BIS may require you to supply additional relevant technical information about your encryption item(s) or information that pertains to their eligibility for License Exception ENC at any time, before or after the expiration of the thirty-day (30-day) processing period specified in this paragraph and in paragraphs (b)(2) and (3) of this section. If you do not supply such information within 14 days after receiving a request for it from BIS, BIS may return your classification request(s) without action or otherwise suspend or revoke your eligibility to use License Exception ENC for that item(s). At your request, BIS may grant you up to an additional 14 days to provide the requested information. Any request for such an additional number of days must be made prior to the date by which the information was otherwise due to be provided to BIS, and may be approved if BIS concludes that additional time is necessary.
              (e) Reporting requirements—(1) Semiannual reporting requirement. Semiannual reporting is required for exports to all destinations other than Canada, and for reexports from Canada for items described under paragraphs (b)(2) and (b)(3)(iii) of this section. Certain encryption items and transactions are excluded from this reporting requirement, see paragraph (e)(1)(iii) of this section. For information about what must be included in the report and submission requirements, see paragraphs (e)(1)(i) and (ii) of this section respectively.
              (i) Information required. Exporters must include for each item, the Commodity Classification Automated Tracking System (CCATS) number and the name of the item(s) exported (or reexported from Canada), and the following information in their reports:
              (A) Distributors or resellers. For items exported (or reexported from Canada) to a distributor or other reseller, including subsidiaries of U.S. firms, the name and address of the distributor or reseller, the item and the quantity exported or reexported and, if collected by the exporter as part of the distribution process, the end user's name and address;
              (B) Direct sales. For items exported (or reexported from Canada) through direct sale, the name and address of the recipient, the item, and the quantity exported; or
              (C) Foreign manufacturers and products that use encryption items. For exports (i.e., from the United States) or direct transfers (e.g., by a “U.S. subsidiary” located outside the United States) of encryption components, source code, general purpose toolkits, equipment controlled under ECCN 5B002, technology, or items that provide an “open cryptographic interface,” to a foreign developer or manufacturer headquartered in a country not listed in supplement no. 3 to this part when intended for use in foreign products developed for commercial sale, the names and addresses of the manufacturers using these encryption items and, if known, when the product is made available for commercial sale, a non-proprietary technical description of the foreign products for which these encryption items are being used (e.g., brochures, other documentation, descriptions or other identifiers of the final foreign product; the algorithm and key lengths used; general programming interfaces to the product, if known; any standards or protocols that the foreign product adheres to; and source code, if available).
              (ii) Submission requirements. For exports occurring between January 1 and June 30, a report is due no later than August 1 of that year. For exports occurring between July 1 and December 31, a report is due no later than February 1 the following year. These reports must be provided in electronic form. Recommended file formats for electronic submission include spreadsheets, tabular text or structured text. Exporters may request other reporting arrangements with BIS to better reflect their business models. Reports may be sent electronically to BIS at crypt@bis.doc.gov and to the ENC Encryption Request Coordinator at enc@nsa.gov, or disks and CDs containing the reports may be sent to the following addresses:
              (A) Department of Commerce, Bureau of Industry and Security, Office of National Security and Technology Transfer Controls, 14th Street and Pennsylvania Ave. NW., Room 2705, Washington, DC 20230, Attn: Encryption Reports, and
              (B) Attn: ENC Encryption Request Coordinator, 9800 Savage Road, Suite 6940, Ft. Meade, MD 20755-6000.
              (iii) Exclusions from reporting requirement. Reporting is not required for the following items and transactions:
              (A) [Reserved]
              (B) Encryption commodities or software with a symmetric key length not exceeding 64 bits;
              (C) Encryption items exported (or reexported from Canada) via free and anonymous download;
              (D) Encryption items from or to a U.S. bank, financial institution or its subsidiaries, affiliates, customers or contractors for banking or financial operations;
              (E) [Reserved]

              (F) Foreign products developed by bundling or compiling of source code.

              (2) Key length increases. Reporting is required for commodities and software that, after having been classified and authorized for License Exception ENC in accordance with paragraphs (b)(2) or (3) of this section, are modified only to upgrade the key length used for confidentiality or key exchange algorithms. Such items may be exported, reexported or transferred (in-country) under the previously authorized provision of License Exception ENC without a classification resubmission.
              (i) Information required. (A) A certification that no change to the encryption functionality has been made other than to upgrade the key length for confidentiality or key exchange algorithms.
              (B) The original Commodity Classification Automated Tracking System (CCATS) authorization number issued by BIS and the date of issuance.
              (C) The new key length.
              (ii) Submission requirements. (A) The report must be received by BIS and the ENC Encryption Request Coordinator before the export, reexport or transfer (in-country) of the upgraded product; and
              (B) The report must be emailed to crypt@bis.doc.gov and enc@nsa.gov.

              (3) Self-classification reporting for certain encryption commodities, software and components. This paragraph (e)(3) sets forth requirements for self-classification reporting to BIS and the ENC Encryption Request Coordinator (Ft. Meade, MD) of encryption commodities, software and components exported or reexported. This reporting requirement applies to commodities and software that meet the criteria of Note 3 to Category 5—Part 2 of the Commerce Control List (“mass market” note) and are classified under ECCN 5A992.c or 5D992.c following self-classification, as well as to commodities and software that remain classified in ECCNs 5A002, 5B002 or 5D002 following self-classification.
              (i) When to report. Your self-classification report for applicable encryption commodities, software and components exported or reexported during a calendar year (January 1 through December 31) must be received by BIS and the ENC Encryption Request Coordinator no later than February 1 the following year.
              (ii) How to report. Encryption self-classification reports must be sent to BIS and the ENC Encryption Request Coordinator via email or regular mail. In your submission, specify the timeframe that your report spans and identify points of contact to whom questions or other inquiries pertaining to the report should be directed. Follow these instructions for your submissions:
              (A) Submissions via email. Submit your encryption self-classification report electronically to BIS at crypt-supp8@bis.doc.gov and to the ENC Encryption Request Coordinator at enc@nsa.gov, as an attachment to an email. Identify your email with subject “self-classification report.”
              (B) Submissions on disks and CDs. The self-classification report may be sent to the following addresses, in lieu of email:
              (1) Department of Commerce, Bureau of Industry and Security, Office of National Security and Technology Transfer Controls, 14th Street and Pennsylvania Ave. NW., Room 2099B, Washington, DC 20230, Attn: Encryption Reports, and
              (2) Attn: ENC Encryption Request Coordinator, 9800 Savage Road, Suite 6940, Ft. Meade, MD 20755-6000.
              (iii) Information to report. Your encryption self-classification report must include the information described in paragraph (a) of supplement no. 8 to part 742 for each applicable encryption commodity, software and component made eligible for export or reexport under § 740.17(b)(1) of the EAR. Each product must be included in a report only one time. However, if no new products are made eligible for export or reexport during a calendar year, you must send an email to the addresses listed in paragraph (e)(3)(ii)(A) of this section stating that nothing has changed since the previous report.
              (iv) File format requirements. The information described in paragraph (a) of supplement no. 8 to part 742 must be provided to BIS and the ENC Encryption Request Coordinator in tabular or spreadsheet form, as an electronic file in comma separated values format (.csv) adhering to the specifications set forth in paragraph (b) of supplement no. 8 to part 742.
              [81 FR 64669, Sept. 20, 2016, as amended at 82 FR 27110, June 14, 2017; 83 FR 53750, Oct. 24, 2018]

              § 740.18
              Agricultural commodities (AGR).
              (a) Eligibility requirements. License Exception AGR permits the export of agricultural commodities to Cuba, as well as the reexport of U.S. origin agricultural commodities to Cuba, provided your transaction meets all of the following criteria:
              (1) The commodity meets the definition of “agricultural commodities” in part 772 of the EAR;
              (2) The commodity is EAR99. You must have an official commodity classification of EAR99 from BIS for fertilizers, western red cedar and live horses before you submit a notification under this license exception. See § 748.3 of the EAR for information on how to submit a commodity classification request;
              (3) The export or reexport is made pursuant to a written contract, except for donations and commercial samples which are not subject to this contract requirement;
              (4) The export or reexport is made within 12 months of the signing of the contract or within 12 months of notification that no objections were raised (if no contract is required). In the case of multiple partial shipments, all such shipments must be made within the 12 months of the signing of the contract or within 12 months of notification that no objections were raised (if no contract is required); and
              (5) You notify BIS prior to exporting or reexporting according to the procedures set forth in paragraph (c) of this section. If you intend to engage in multiple shipments during the one-year period after the signing of the contract, you need only notify BIS prior to the first shipment.
              (b) Restrictions. (1) No export or reexport to any individual or entity designated as a Specially Designated Terrorist or Foreign Terrorist Organization may be made under License Exception AGR (see part 744 of the EAR).
              (2) No export or reexport to or for use in biological, chemical, nuclear warfare or missile proliferation activities may be made under License Exception AGR (see part 744 of the EAR).
              (3) No U.S.-owned or controlled foreign firm may export from abroad to Cuba a foreign produced agricultural commodity containing more than 25% U.S.-origin content. Such U.S.-owned or controlled foreign firms require a specific license from BIS as well as the Department of the Treasury's Office of Foreign Assets Control (OFAC). Transactions not subject to the EAR (under 25% U.S.-origin content) require a license from OFAC.
              (c) Prior notification—(1) General requirement. You must notify BIS prior to any export or reexport (or prior to the first of multiple shipments) under License Exception AGR.
              (2) Procedures. You must provide prior notification of exports and reexports under License Exception AGR by submitting a completed application in accordance with § 748.1 of the EAR. The following blocks must be completed, as appropriate: Blocks 1, 2, 3, 4, 5 (by marking box 5 “Other”), 14, 16, 17, 18, 19, 21, 22 (a), (e), (f), (g), (h), (i), (j), 23, and 25 according to the instructions described in supplement no. 1 to part 748 of the EAR. If your commodity is fertilizer, western red cedar or live horses, you must confirm that BIS has previously classified your commodity as EAR99 by placing the Commodity Classification Automatic Tracking System (CCATS) number in Block 22(d). BIS will not initiate the registration of an AGR notification unless the application is complete.
              (3) Action by BIS. Within two business days of the registration of the AGR notification, BIS will refer the notification for interagency review, or if necessary return the notification without action (e.g., if the information provided is incomplete). Registration is defined as the point at which the notification is entered into BIS's electronic system.
              (4) Review by other departments or agencies. The Departments of Defense, State, and other agencies, as appropriate, may review the AGR notification. BIS must receive department or agency objections within nine business days of the referral. Unlike the provisions described in § 750.4(b) of the EAR, there are no provisions for stopping the processing time of the AGR notification. If, within 11 business days after the date of registration, any reviewing agency provides a written objection that the recipient may promote international terrorism or the transaction raises nonproliferation concerns, you may not use License Exception AGR. In such cases, BIS will notify you that a license is required for the export or reexport. BIS will then process the AGR notification as a license application in accordance with the provisions described in § 750.4 of the EAR, and the licensing policies set forth in the EAR. At this time, BIS may request additional information. When BIS confirms that no agency has raised an objection within eleven business days (as described in paragraph (c)(5) of this section), you may proceed with the transaction provided that you satisfy all other requirements of License Exception AGR, including the requirement to have a written contract prior to any shipment (unless a donation or commercial sample). (Note that the fact that you have been advised that no agency has objected to the transaction does not exempt you from other licensing requirements under the EAR, such as those based on knowledge of a prohibited end-use or end-user as referenced in general prohibition five (part 736 of the EAR) and set forth in part 744 of the EAR.)
              (5) Status of pending AGR notification requests. You must contact BIS's System for Tracking Export License Applications (STELA) (https://snapr.bis.doc.gov/stela) for status of your pending AGR notification or verify the status in BIS's Simplified Network Applications Processing Redesign (SNAP-R) System. STELA will provide the date of registration of the AGR notification. If no department or agency objection is raised within 11 business days, STELA will, on the twelfth business day following the date of registration, provide you with confirmation of that fact. You may not proceed with your shipment unless you confirm with either STELA or SNAP-R that no objection has been raised. If an objection is raised, STELA and SNAP-R will indicate that a license is required. The AGR notification will then be processed as a license application. In addition, BIS may provide notice of an objection by telephone, fax, courier service, or other means.
              (d) Donations. (1) Donations of agricultural commodities are eligible for export and reexport to Cuba under License Exception AGR, provided the transaction meets the requirements and procedures of this license exception (except the written contract requirement).
              (2) Donations of food items to non-governmental organizations (NGOs) and individuals in Cuba may also be eligible for License Exception GFT. See § 740.12 for eligibility requirements of gift parcels and humanitarian donations under License Exception GFT.
              [66 FR 36681, July 12, 2001, as amended at 73 FR 49329, Aug. 21, 2008; 75 FR 17054, Apr. 5, 2010; 75 FR 31681, June 4, 2010; 80 FR 56902, Sept. 21, 2015]

              § 740.19
              Consumer Communications Devices (CCD).
              (a) Authorizations. This section authorizes the export or reexport of commodities and software to Cuba or Sudan subject to the requirements stated herein. This section does not authorize U.S.-owned or -controlled entities in third countries to engage in reexports of foreign produced commodities to Cuba for which no license would be issued by the Department of the Treasury pursuant to 31 CFR 515.559.
              (b) Eligible commodities and software. Commodities and software in paragraphs (b)(1) through (17) of this section are eligible for export or reexport under this section to Cuba or Sudan. Commodities in paragraph (b)(18) of this section are eligible for export or reexport under this section to Sudan only.
              (1) Consumer computers designated EAR99 or classified under Export Control Classification Numbers (ECCN) 5A992.c or 4A994.b;
              (2) Consumer disk drives and solid state storage equipment classified under ECCN 5A992 or designated EAR99;

              (3) Input/output control units (other than industrial controllers designed for chemical processing) designated EAR99;
              (4) Graphics accelerators and graphics coprocessors designated EAR99;
              (5) Monitors classified under ECCN 5A992.c or designated EAR99;
              (6) Printers classified under ECCN 5A992.c or designated EAR99;
              (7) Modems classified under ECCNs 5A991.b.2, 5A991.b.4., or 5A992.c or designated EAR99;
              (8) Network access controllers and communications channel controllers classified under ECCN 5A991.b.4 or designated EAR99;
              (9) Keyboards, mice and similar devices designated EAR99;
              (10) Mobile phones, including cellular and satellite telephones, personal digital assistants, and subscriber information module (SIM) cards and similar devices classified under ECCNs 5A992.c or 5A991 or designated EAR99;
              (11) Memory devices classified under ECCN 5A992.c or designated EAR99;
              (12) Consumer “information security” equipment, “software” (except “encryption source code”) and peripherals classified under ECCNs 5A992.c or 5D992.c or designated EAR99;
              (13) Digital cameras and memory cards classified under ECCN 5A992 or designated EAR99;
              (14) Television and radio receivers classified under ECCN 5A992 or designated EAR99;
              (15) Recording devices classified under ECCN 5A992 or designated EAR99;
              (16) Batteries, chargers, carrying cases and accessories for the equipment described in this paragraph that are designated EAR99;
              (17) Consumer “software” (except “encryption source code”) classified under ECCNs 4D994, 5D991 or 5D992.c or designated EAR99 to be used for equipment described in paragraphs (b)(1) through (b)(16) of this section; and

              (18) (Sudan only) Global Positioning System receivers or similar satellite receivers controlled under ECCN 7A994.

                Note to paragraph (b):
                In this paragraph, the term “consumer” refers to items that are:
                1. Generally available to the public by being sold, without restriction, from stock at retail selling points by means of any of the following:
                a. Over-the-counter transactions;
                b. Mail order transactions;
                c. Electronic transactions; or
                d. Telephone call transactions; and
                2. Designed for installation by the user without further substantial support by the supplier.

              (c) Eligible and ineligible end-users—(1) Organizations. (i) This license exception may be used to export or reexport eligible commodities and software to and for the use of independent non-governmental organizations in Cuba or Sudan.
              (ii) The Cuban Government or the Cuban Communist Party and organizations they administer or control are not eligible end-users.
              (iii) The Government of Sudan is not an eligible end-user for any item exported or reexported pursuant to this license exception except for consumer software that is authorized under paragraph (b)(12) or (b)(17) of this section and that is distributed free of charge.
              (2) Individuals. This License Exception may be used to export eligible commodities and software to and for the use of individuals other than the following:
              (i) Ineligible Cuban Government Officials. Ministers and Vice-Ministers; members of the Council of State; members of the Council of Ministers; members and employees of the National Assembly of People's Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; or members and employees of the Supreme Court (Tribuno Supremo Nacional).
              (ii) Ineligible Cuban Communist Party Officials. Members of the Politburo.
              [74 FR 45989, Sept. 8, 2009, as amended at 80 FR 2289, Jan. 16, 2015; 80 FR 8523, Feb. 18, 2015; 80 FR 56902, Sept. 21, 2015; 81 FR 71367, Oct. 17, 2016; 82 FR 51985, Nov. 9, 2017]

              § 740.20
              License Exception Strategic Trade Authorization (STA).
              (a) Introduction. This section authorizes exports, reexports, and transfers (in-country), including releases within a single country of software source code and technology to foreign nationals, in lieu of a license that would otherwise be required pursuant to part 742 of the EAR.

                Note 1 to paragraph (a):
                License Exception STA authorizes transfers (in-country) but is only needed to authorize a transfer (in-country) when an EAR authorization is required. If a transfer (in-country) is not being made under STA, the requirements specified in this section do not apply (see Note 1 to paragraphs (b)(2) and (b)(3) of this section for requirements specific to staying within the scope of the original License Exception STA authorization and the concept of 'completing the chain' for purposes of “600 series” items originally authorized under License Exception STA).

              (b) Requirements and Limitations—(1) Requirements for Using License Exception STA. (i) All of the reasons for control that impose a part 742 license requirement on the export, reexport or in country transfer must be addressed in at least one authorizing paragraph of this section.
              (ii) The party using License Exception STA must comply with all of the requirements in paragraph (d) of this section.
              (2) Limitations on Use of License Exception STA. The prohibitions and limits of this paragraph (b)(2) apply notwithstanding the authorizations in paragraph (c) of this section.
              (i) License Exception STA may not be used in lieu of any license requirement imposed by “Part 744—Control Policy: End User and End Use Based” or by “Part 746—Embargoes and Other Special Controls” of the EAR.
              (ii) License Exception STA may not be used for any item controlled under ECCNs 0A981, 0A982, 0A983, 0A985, 0E982, or 0E987.
              (iii) License Exception STA may not be used for any item that is controlled for reason of encryption items (EI), short supply (SS), surreptitious listening (SL), missile technology (MT) or chemical weapons (CW).
              (iv) License Exception STA may not be used for any item identified on the CCL as being subject to the exclusive export control jurisdiction of another agency, such as the Department of State, the Department of Energy, or the Nuclear Regulatory Commission.
              (v) License Exception STA may not be used for any item controlled by ECCN 1C351.a, .b, .c, d.11, .d.12 or .e, ECCNs 1C353, 1C354, 1E001 (i.e., for technology, as specified in ECCN 1E001, for items controlled by ECCN 1C351.a, .b, .c, .d.11, .d.12 or .e or ECCNs 1C353 or 1C354) or ECCN 1E351.
              (vi) Toxins controlled by ECCN 1C351.d.1 through 1C351.d.10 and 1C351.d.13 through 1C351.d.19 are authorized under License Exception STA to destinations indicated in Country Group A:5 (See supplement no. 1 to this part), subject to the following limits. For purposes of this paragraph, all such toxins that are sent from one exporter, reexporter or transferor to a single end-user, on the same day, constitute one shipment.
              (A) The maximum amount of any one toxin in any one shipment may not exceed 100 milligrams.
              (B) No exporter, reexporter or transferor may send more than six shipments of any one toxin to any one end user in a single calendar year.
              (vii) Commerce Control List Category 7 limitation on use of License Exception STA. License Exception STA may not be used for 7E004 “technology,” except for “technology” controlled under 7E004.a.7.
              (viii) Commerce Control List Category 9 limitations on use of License Exception STA.
              (A) License Exception STA may not be used for 9D001 or 9D002 “software” that is specially designed or modified for the “development” or “production” of:
              (1) Components of engines controlled by ECCN 9A001 if such components incorporate any of the “technologies” controlled by 9E003.a.1, 9E003.a.2, 9E003.a.3, 9E003.a.4, 9E003.a.5, 9E003.c, 9E003.i (other than technology for fan or power turbines), 9E003.h; or
              (2) Equipment controlled by 9B001.

              (B) License Exception STA may not be used for 9D001 “software” that is specially designed or modified for the “development” of “technology” controlled by 9E003.a.1, 9E003.a.2, 9E003.a.3, 9E003.a.4, 9E003.a.5, 9E003.c, 9E003.i (other than technology for fan or power turbines) or 9E003.h.
              (C) License Exception STA may not be used for 9D004.f or 9D004.g “software”.
              (D) License Exception STA may not be used for 9E001 “technology” according to the General Technology Note for the “development” of 9A001.b engines or components of engines controlled by 9A001.b if such components incorporate:
              (1) Any of the “technologies” controlled by 9E003.a.1, 9E003.a.2, 9E003.a.3, 9E003.a.4, 9E003.a.5, 9E003.c, 9E003.i (other than technology for fan or power turbines) or 9E003.h;
              (2) Any of the 9D001 or 9D002 software in paragraphs (b)(2)(viii)(A) or (B) of this section.
              (E) License Exception STA may not be used for 9E002 “technology” according to the General Technology Note for the “production” of components of engines controlled by 9A001.b if such components incorporate any of the “technologies” controlled by 9E003.a.1, 9E003.a.2, 9E003.a.3, 9E003.a.4, 9E003.a.5, 9E003.c, 9E003.i (other than technology for fan or power turbines) 9E003.h.
              (F) License Exception STA may not be used for “technology” in 9E003.a.1, 9E003.a.2, 9E003.a.3, 9E003.a.4, 9E003.a.5, 9E003.c, 9E003.i (other than technology for fan or power turbines) 9E003.h.
              (ix) [Reserved]
              (x) License Exception STA may not be used for items controlled by ECCN 6A002; 6D002 (software “specially designed” for the “use” of commodities controlled under 6A002.b); 6D003.c; 6D991 (software “specially designed” for the “development,” “production,” or “use” of commodities controlled under 6A002 or 6A003); 6E001 (“technology” for the “development” of commodities controlled under ECCN 6A002 or 6A003); or 6E002 “technology” (for the “production” of commodities controlled under ECCN 6A002 or 6A003).
              (xi) License Exception STA may not be used for any commodity controlled by ECCN 3A001.b.2 or b.3 (except those that are being exported or reexported for use in civil telecommunications applications), or any “technology” controlled by 3E001 for the “production” or “development” of commodities controlled by 3A001.b.2 or b.3.
              (3) Limitations on the Use of STA that are Specific to “600 series” Items. (i) License Exception STA may not be used for any “600 series” items identified in the relevant ECCN as not being eligible for STA.
              (ii) License Exception STA may be used to export, reexport, and transfer (in-country) “600 series” items to persons, whether non-governmental or governmental, if they are in and, for natural persons, nationals of a country listed in Country Group A:5 (See supplement no. 1 to part 740 of the EAR) or the United States and if:
              (A) The ultimate end user for such items is the armed forces, police, paramilitary, law enforcement, customs, correctional, fire, or a search and rescue agency of a government of one of the countries listed in Country Group A:5, or the United States Government;
              (B) For the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item in one of the countries listed in Country Group A:5 or the United States that will be for one, or more, of the following purposes:
              (1) Ultimately to be used by any such government agencies in one of the countries listed in Country Group A:5 or the United States Government; or
              (2) Sent to a person in the United States and not for subsequent export under § 740.9(b)(1) (License Exception TMP for items moving in transit through the United States); or
              (C) The United States Government has otherwise authorized the ultimate end use, the license or other authorization is in effect, and the consignee verifies in writing that such authorization exists and has provided the license or other approval identifier to the exporter, reexporter or transferor (as applicable).
              (iii) License Exception STA may not be used to export, reexport, or transfer (in-country) end items described in ECCN 0A606.a, ECCN 8A609.a, ECCN 8A620.a or .b, or ECCN 9A610.a until after BIS has approved their export under STA under the procedures set out in § 740.20(g).

              (iv) License Exception STA may not be used to export, reexport, or transfer (in-country) “600 series” items if they are “600 Series Major Defense Equipment” and the value of such items in the contract requiring their export exceeds $25,000,000.

                Note 1 to paragraphs (b)(2) and (b)(3):
                Any export, reexport, or transfer (in-country) originally authorized under License Exception STA must stay within the scope of the original authorization. For example, for “600 series” items authorized under License Exception STA, such items must be provided to an eligible ultimate end user, such as a Country Group A:5 military, to stay in compliance with the original authorization. This requirement for the “600 series” is referred to as 'completing the chain,' meaning regardless of how many times the “600 series” item is transferred (in-country) or whether the “600 series” item is incorporated into higher level assemblies or other items, the “600 series” item must ultimately be provided to an eligible ultimate end user, or be otherwise authorized under the EAR. This applies regardless of whether the “600 series” item has been incorporated into a foreign-made item that may no longer be “subject to the EAR.” Because the other items eligible for authorization under License Exception STA (9x515 and other non-600 series ECCNs) do not include the “600 series” requirements specific to ultimate end user, this 'completing the chain' concept does not apply to 9x515 and other non-600 series ECCNs authorized under License Exception STA. However, the original export, reexport, or transfer (in-country) made under License Exception STA for 9x515 and other non-600 series ECCNs still must comply with the original authorization—meaning the terms and conditions of License Exception STA.

              (c) Authorizing paragraphs—(1) Multiple reasons for control. Exports, reexports, and transfers (in-country) in which the only applicable reason(s) for control is (are) national security (NS); chemical or biological weapons (CB); nuclear nonproliferation (NP); regional stability (RS); crime control (CC), and/or significant items (SI) are authorized for destinations in or nationals of Country Group A:5 (See supplement no.1 to part 740 of the EAR).

                Note to paragraph (c)(1).

                  License Exception STA under § 740.20(c)(1) may be used to authorize the export, reexport, or transfer (in-country) of “600 series” items only if the purchaser, intermediate consignee, ultimate consignee, and end user have previously been approved on a license or other approval, i.e., Directorate of Defense Trade Controls (DDTC) Manufacturing License Agreement (MLA), Technical Assistance Agreement (TAA), Warehouse Distribution Agreement (WDA), or General Correspondence approval (GC) issued by BIS or DDTC at the U.S. Department of State.

              (2) Controls of lesser sensitivity. Exports, reexports and transfers (in-country) in which the only applicable reason for control is national security (NS) and the item being exported, reexported or transferred (in-country) is not designated in the STA paragraph in the License Exception section of the ECCN that lists the item are authorized for destinations in or nationals of Country Group A:6 (See supplement no. 1 to this part).
              (d) Conditions—(1) Requirement to furnish Export Control Classification Number. (i) The exporter must furnish to the consignee the ECCN of each item to be exported pursuant to this section. Once furnished to a particular consignee, the ECCN that applies to any item need not be refurnished to that consignee at the time the same exporter makes an additional export of the same item, if the information remains accurate at the time of the additional export.
              (ii) A reexporter or transferor must furnish to subsequent consignees the ECCN, provided by the exporter or a prior reexporter or transferor, of each item to be reexported or transferred (in-country) pursuant to this section. Once furnished to a particular consignee, the ECCN that applies to any item need not be refurnished to that consignee at the time the same reexporter or transferor makes an additional reexport or transfer (in-country) of the same item, if the information remains accurate at the time of the additional reexport or transfer (in-country).
              (iii) For purposes of determining reexport or transfer eligibility under this section, the consignee may rely on the ECCN provided to it by the party required to furnish the ECCN under paragraph (d)(1)(i) or (ii) of this section unless the consignee knows that the ECCN is incorrect or has changed. The word “knows” has the same meaning as the term “knowledge” in § 772.1 of the EAR.
              (2) Prior Consignee Statement. The requirements in this paragraph (d)(2) apply to each party using License Exception STA to export, reexport, or transfer (in-country), including reexporters and transferors of items previously received under License Exception STA. The exporter, reexporter, or transferor must obtain the following statement in writing from its consignee(s) prior to exporting, reexporting, or transferring (in-country) the item and must retain the statement in accordance with part 762 of the EAR. One statement may be used for multiple exports, reexports, or transfers (in-country) of the same items between the same parties so long as the party names, the description(s) of the item(s) and the ECCNs are correct. The exporter, reexporter, or transferor must maintain a log or other record (such as documents created in the ordinary course of business) that identifies each shipment made pursuant to this section and the specific consignee statement that is associated with each shipment. For purposes of this paragraph (d)(2), a log or other record is not required for intangible (i.e., electronic or in an otherwise intangible form) exports, reexports, or transfers (in-country) made under License Exception STA, but an exporter, reexporter, or transferor is required, prior to making any export, reexport, or transfer (in-country), to ensure that a prior consignee statement has been obtained pursuant to the requirements of this paragraph (d)(2). (See Note 1 to paragraph (d)(3) of this section for additional guidance on intangible exports, reexports, and transfers (in-country), including best practices). Paragraphs (d)(2)(i) through (vi) of this section are required for all transactions. In addition, paragraph (d)(2)(vii) is required for all transactions in “600 series” items and paragraph (viii) of this section is required for transactions in “600 series” items if the consignee is not the government of a country listed in Country Group A:5 (See supplement no. 1 to part 740 of the EAR). Paragraph (d)(2)(viii) is also required for transactions including 9x515 items.

                [INSERT NAME(S) OF CONSIGNEE(S)]:

                (i) Is aware that [INSERT GENERAL DESCRIPTION AND APPLICABLE ECCN(S) OF ITEMS TO BE SHIPPED (e.g., aircraft parts and components classified under ECCN 9A610)] will be shipped pursuant to License Exception Strategic Trade Authorization (STA) in § 740.20 of the United States Export Administration Regulations (15 CFR 740.20);
                (ii) Has been informed of the ECCN(s) noted above by [INSERT NAME OF EXPORTER, REEXPORTER OR TRANSFEROR];
                (iii) Understands that items shipped pursuant to License Exception STA may not subsequently be reexported pursuant to paragraphs (a) or (b) of License Exception APR (15 CFR 740.16(a) or (b));
                (iv) Agrees to obtain a prior consignee statement when using License Exception STA for any reexport or transfer (in-country) of items previously received under License Exception STA;
                (v) Agrees not to export, reexport, or transfer these items to any destination, use or user prohibited by the United States' Export Administration Regulations;

                (vi) Agrees to provide copies of this document and all other export, reexport, or transfer records (i.e., the documents described in 15 CFR part 762) relevant to the items referenced in this statement to the U.S. Government as set forth in 15 CFR 762.7;
                (vii) Understands that License Exception STA may be used to export, reexport, and transfer (in-country) “600 series” items to persons, whether non-governmental or governmental, only if they are in and, for natural persons, nationals of a country listed in Country Group A:5 (See supplement no. 1 to part 740 of the EAR) or the United States and if:
                (A) The ultimate end user for such items is the armed forces, police, paramilitary, law enforcement, customs, correctional, fire, or a search and rescue agency of a government of one of the countries listed in Country Group A:5 or the United States Government;
                (B) For the “development,” “production,” operation, installation, maintenance, repair, overhaul, or refurbishing of an item in one of the countries listed in Country Group A:5 or the United States that will be for one, or more, of the following purposes:

                  (1) Ultimately to be used by any such government agencies in one of the countries listed in Country Group A:5 or the United States Government; or

                  (2) Sent to a person in the United States and not for subsequent export under § 740.9(b)(1) (License Exception TMP for items moving in transit through the United States); or
                (C) The United States Government has otherwise authorized the ultimate end use, the license or other authorization is in effect, and the consignee verifies in writing that such authorization exists and has provided the license or other approval identifier to the exporter, reexporter or transferor (as applicable).

                (viii) Agrees to permit a U.S. Government end-use check with respect to the items.

                [INSERT NAME(S) AND TITLE(S) OF PERSON(S) SIGNING THIS DOCUMENT, AND DATE(S) DOCUMENT IS SIGNED].

                Note 1 to paragraph (d)(2):
                When multiple consignees who form a network engaged in a production process (or other type of collaborative activity, such as joint development) will be receiving items under License Exception STA, a single prior consignee statement for multiple consignees may be used for any item eligible for export, reexport, or transfer (in-country) under License Exception STA, provided all of the applicable requirements of License Exception STA are met, including those specified in paragraph (d)(2).

                Note 2 to paragraph (d)(2):
                Country Group A:5 and A:6 government consignees are not required to sign or provide a prior consignee statement.

              (3) Notification to consignee of STA shipment. With each shipment under License Exception STA, the exporter (or reexporter or transferor as applicable), must notify the consignee in writing that the shipment is made pursuant to License Exception STA. The notice must either specify which items are subject to License Exception STA or state that the entire shipment is made pursuant to License Exception STA. The notice must clearly identify the shipment to which it applies. The written notice may be conveyed by paper documents or by electronic methods such as facsimile or email.

                Note 1 to paragraph (d)(3):
                While the exporter, reexporter, and transferor must furnish the applicable ECCN and obtain a consignee statement prior to export, reexport or transfer (in-country) made under License Exception STA in accordance with the requirements of paragraphs (d)(1) and (d)(2) of this section, intangible (i.e., electronic or in an otherwise intangible form) exports, reexports, and transfers (in-country) made under License Exception STA are not subject to the notification requirements of paragraph (d)(3) of this section. However, any export, reexport, or transfer (in-country) made under STA must stay within the scope of the original authorization.

              (4) Requirements for releases of software source code or technology within a single country. Instead of the requirement of paragraphs (d)(1) through (d)(3) of this section, the party releasing software source code or technology to a national of a country listed in Country Group A:5 or A:6 (See supplement no. 1 to this part) must notify the recipient of the software source code or technology of the restrictions upon further release of the software source code or technology. The notification must either expressly inform the recipient that the EAR impose limits on further disclosure or must be in the form of an agreement in which the recipient agrees to limits on further disclosure. Any such agreement must impose limits that are equivalent to or more restrictive than all limits on further disclosure that are imposed by the EAR. The notification must be in writing and a copy of it must be retained by the party making the release and the recipient of the release. The notification may be in a separate document or included in a document such as a contract or a nondisclosure agreement. If the document has an expiration date, it must provide that the restrictions on disclosure do not expire.
              (e) Limitation on subsequent exports, reexports or in country transfers. If a commodity has been exported, reexported or transferred in-country pursuant to this section, it may not be subsequently exported, reexported or transferred in-country pursuant to paragraphs (a) or (b) of License Exception APR (§ 740.16(a) or (b) of the EAR). Paragraphs (a) and (b) of License Exception APR do not authorize exports of software or technology.
              (f) Applicability of Wassenaar Arrangement reporting requirements. See § 743.1 of the EAR for special reporting requirements that apply to some exports made pursuant to this section.
              (g) License Exception STA eligibility requests for 9x515 and “600 series” items—(1) Applicability. Any person may request License Exception STA eligibility for end items described in ECCN 0A606.a, ECCN 8A609.a, ECCNs 8A620.a or .b, “spacecraft” in ECCNs 9A515.a.1, .a.2, .a.3, .a.4, or .g, 9A610.a, or technology ECCNs 9E515.b, .d, .e, or .f.
              (2) Required information and manner of requests. Requests for License Exception STA eligibility must be made via the BIS Simplified Network Application Process-Redesign(SNAP-R) system unless BIS authorizes submission via the paper BIS-748-P Multipurpose Application form. For situations in which BIS 748-P submissions may be authorized, see § 748.1(d)(1). For required information specific to License Exception STA eligibility requests, see supplement no. 1 to part 748, Blocks 5 and 6 and supplement no. 2 to part 748, paragraph (w). In SNAP-R the work type for these applications is “Export.”
              (3) Timeline for USG review. The Departments of Commerce, Defense and State will review License Exception STA eligibility requests in accordance with the timelines set forth in Executive Order 12981 and § 750.4. If the License Exception STA request is approved, the process outlined in paragraph (g)(5)(i) of this section is followed.
              (4) Review criteria. The Departments of Commerce, Defense and State will determine whether the “end item” is eligible for this license exception based on an assessment of whether it provides a critical military or intelligence advantage to the United States or is otherwise available in countries that are not regime partners or close allies. If the “end item” does not provide a critical military or intelligence advantage to the United States or is otherwise available in countries that are not regime partners or close allies, the Departments will determine that License Exception STA is available unless an overarching foreign policy rationale for restricting STA availability can be articulated. Consensus among the Departments is required in order for an “end item” to be eligible for License Exception STA. Such determinations are made by the departments' representatives to the Advisory Committee on Export Policy (ACEP), or their designees.
              (5) Disposition of License Exception STA eligibility requests—(i) Approvals. If the request for STA eligibility is approved, the applicant will receive notification from BIS authorizing the use of the additional License Exception STA for the specific end items requested. This will be in the form of a notice generated by SNAP-R to the applicant. Applicants who receive an approval notification may share it with companies affiliated with them, such as a branch or distributor, and may also take steps to make it public (e.g., on their Web site) if the applicants so wish. In addition, BIS will add a description of the approved end item in the relevant ECCN and in an online table posted on the BIS Web site, which removes the restriction on the use of License Exception STA for the end item identified in the approved request. BIS will publish, as needed, a final rule adding this license exception eligibility to the EAR for that ECCN entry or end item.
              (ii) Denials. If the STA eligibility request is not approved, the applicant will receive written notification from BIS. This will be in the form of a notice generated by SNAP-R to the applicant. Applicants may re-submit STA eligibility requests at any time.
              [76 FR 35287, June 16, 2011]

                Editorial Note:
                For Federal Register citations affecting § 740.20, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 740.21
              Support for the Cuban People (SCP).
              (a) Introduction. This License Exception authorizes certain exports and reexports to Cuba that are intended to support the Cuban people by improving their living conditions and supporting independent economic activity; strengthening civil society in Cuba; and improving the free flow of information to, from, and among the Cuban people.
              (b) Improving living conditions and supporting independent economic activity. This paragraph authorizes the export or reexport to Cuba of items designated as EAR99, or controlled on the Commerce Control List (CCL) (supplement no. 1 to part 774 of the EAR) only for anti-terrorism reasons (i.e., anti-terrorism must be the only reason for control that applies to the item as set forth in the Export Control Classification Number (ECCN) that controls the item). If any other reason for control applies to the item, it is not authorized for export or reexport by this paragraph. The item must be within one or more of the following categories:
              (1) Items for use by the Cuban private sector for private sector economic activities, except for items that would be used to:

              (i) Primarily generate revenue for the state; or

              (ii) Contribute to the operation of the state, including through the construction or renovation of state-owned buildings.
              (2) Items sold directly to individuals in Cuba for their personal use or their immediate family's personal use, other than officials identified in paragraphs (d)(4)(ii) or (iii) of this section.
              (2) Items sold directly to individuals in Cuba for their personal use or their immediate family's personal use, other than officials identified in paragraphs (d)(4)(ii) or (iii) of this section.
              (c) Strengthening civil society. This paragraph authorizes the export or reexport to Cuba of certain items for use in specified activities that can strengthen civil society. The items authorized pursuant this paragraph are limited to those designated as EAR99 or controlled only for anti-terrorism reasons on the CCL (i.e., anti-terrorism must be the only reason for control that applies to the item as set forth in the ECCN that controls the item). If any other reason for control applies to the item, it is not authorized for export or reexport by this paragraph. The export or reexport must be within one or more of the following categories:
              (1) The export or reexport to Cuba of donated items for use in scientific, archaeological, cultural, ecological, educational, historic preservation, or sporting activities. The items may not be donated to organizations administered or controlled by the Cuban government or communist party, and must support eligible activities independent of the Cuban government and communist party. The activities may not relate to the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul or refurbishing of any item enumerated or otherwise described on the United States Munitions List (22 CFR part 121) or of any item enumerated or otherwise described on the Commerce Control List (supplement no. 1 to part 774 of the EAR) unless the only reason for control that applies to that item, as set forth in the ECCN that controls that item, is anti-terrorism.
              (2) The temporary export or reexport to Cuba of items by travelers to Cuba for the travelers' use in scientific, archeological, cultural, ecological, educational, historic preservation, or sporting activities, or professional meetings or research. The following requirements apply:
              (i) The research must be directly related to traveler's profession, professional background or area of expertise, including area of graduate-level full-time study.
              (ii) The activities or research may not relate to the “development,” “production,” “use,” operation, installation, maintenance, repair, overhaul or refurbishing of any item enumerated or otherwise described on the United States Munitions List (22 CFR part 121) or of any item enumerated or otherwise described on the Commerce Control List (supplement no. 1 to part 774 of the EAR) unless the only reason for control that applies to that item as set forth in the ECCN that controls that item is anti-terrorism.
              (iii) The items must remain under the traveler's “effective control” while in Cuba.
              (iv) Items authorized for temporary export by this paragraph must be returned to the United States within two years of the date of export from the United States unless:
              (A) The items are consumed in Cuba; or
              (B) The exporter applies for and receives a license from BIS, prior to the expiration of the two year period, authorizing the items to remain in Cuba for longer than two years.
              (v) Paragraph (c)(2) of this section does not authorize exports if, at the time of the export, the exporter has “knowledge” that the item exported will remain in Cuba for more than two years.
              (3) The export or reexport to Cuba of items to human rights organizations, individuals or non-governmental organizations that promote independent activity intended to strengthen civil society.
              (d) Improving communications. This paragraph authorizes the export or reexport to Cuba of certain items intended to improve the free flow of information to, from, and among the Cuban people. The items authorized pursuant to this paragraph are limited to those designated as EAR99 or controlled only for anti-terrorism reasons on the CCL (i.e., anti-terrorism must be the only reason for control that applies to the item as set forth in the ECCN that controls the item). If any other reason for control applies to the item, it is not authorized for export or reexport by this paragraph. The export or reexport must be within one or more of the following categories:

              (1) The export or reexport to Cuba of items for the creation and upgrade of telecommunications infrastructure to improve the free flow of information to, from, and among the Cuban people, including infrastructure that enables access to the internet and use of internet services. For infrastructure items that would be used to connect specific end users, those items may be used to connect individual Cubans or the Cuban private sector only (e.g., not Cuban government ministries or state-owned enterprises).
              (2) The export or reexport to Cuba of items for use by news media personnel engaged in the gathering and dissemination of news to the general public and who are:
              (i) Regularly employed as journalists by a news reporting organization;
              (ii) Regularly employed as supporting broadcast or technical personnel;
              (iii) Freelance journalists with a record of previous journalistic experience working on a freelance journalistic project; or
              (iv) Broadcast or technical personnel with a record of previous broadcast or technical experience who are supporting a freelance journalist working on a freelance journalistic project.
              (3) The export or reexport to Cuba of items for use by U.S. news bureaus engaged in the gathering and dissemination of news to the general public.
              (4) The export or reexport to Cuba of commodities or software that will be used by individuals or private sector entities to develop software that will improve the free flow of information or that will support the private sector activities described in paragraph (b) of this section. The following are ineligible end-users:
              (i) The Cuban Government or the Cuban Communist Party and organizations they administer or control;
              (ii) Ministers and Vice-Ministers; members of the Council of State; members of the Council of Ministers; members and employees of the National Assembly of People's Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; or members and employees of the Supreme Court (Tribuno Supremo Nacional); and
              (iii) Members of the Politburo.
              (e) Facilitating engagement, communications, and commerce. This paragraph (e) authorizes the export or reexport to Cuba of certain items intended to facilitate engagement between the U.S. and Cuban people; the free flow of information to, from, and among the Cuban people; and independent economic activity in Cuba. The export or reexport must be within one or more of the following categories:

              (1) The export or reexport to Cuba of items for use by persons authorized by the Department of the Treasury, Office of Foreign Assets Control (OFAC) to establish and maintain a physical or business presence in Cuba pursuant to 31 CFR 515.573 or pursuant to a specific license issued by OFAC. The items authorized pursuant to this paragraph (e)(1) are limited to those designated as EAR99 (i.e., items subject to the EAR but not specified in any ECCN) or controlled on the CCL only for anti-terrorism reasons.
              (2) [Reserved]

                Note to paragraph (e):
                Any resulting payments associated with establishing or maintaining a physical or business presence in Cuba, such as lease payments, are permitted only to the extent authorized by 31 CFR 515.573 or a specific license issued by OFAC.

              (f) Temporary exports and reexports to Cuba. This paragraph (f) authorizes the export or reexport to Cuba, for periods not exceeding one year, of certain items designated as EAR99 or controlled only for anti-terrorism reasons on the CCL (i.e., anti-terrorism must be the only reason for control that applies to the item as set forth in the ECCN that controls the item). If any other reason for control applies to the item, it is not authorized for export or reexport by this paragraph. This paragraph does not authorize any transaction if the exporter or reexporter has “knowledge” that the item is intended to remain in Cuba for more than one year; if an order to acquire the item, such as a purchase order, has been received before shipment; or when the item is for subsequent lease or rental. The export or reexport must be within one or more of the following categories.
              (1) Tools of trade—commodities and software. Commodities or software to be used by the exporter or reexporter or its employees for the installation, servicing or repair of items that are subject to the EAR and that have been exported or reexported to Cuba under a license or license exception, or foreign-origin items that are not subject to the EAR that are owned and used exclusively by private sector entities in Cuba, may be exported or reexported under this paragraph (f). The commodities or software must remain under the “effective control” of the exporter or reexporter or its employees. Examples of security precautions to help prevent unauthorized access include the following:
              (i) Use of secure connections, such as Virtual Private Network connections, when accessing IT networks for activities that involve the transmission and use of the software authorized under this license exception;
              (ii) Use of password systems on electronic devices that store the software authorized under this license exception; and
              (iii) Use of personal firewalls on electronic devices that store the software authorized under this license exception.
              (2) Tools of trade—technology. Technology to be used by a 'U.S. person' exporter or reexporter or its employees who are traveling to or on temporary assignment in Cuba for the installation, servicing or repair of items that are subject to the EAR and that have been exported or reexported to Cuba under a license or license exception, or foreign-origin items that are not subject to the EAR that are owned and used exclusively by private sector entities in Cuba, may be exported or reexported under this paragraph (f). For purposes of this paragraph (f)(2), a 'U.S. person' is: an individual who is a citizen of the United States, an individual who is “lawfully admitted for permanent residence” in the United States as defined by 8 U.S.C. 1101(a)(20) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). 'U.S. person' also means any juridical person organized under the laws of the United States, or any jurisdiction within the United States (e.g., corporation, business association, partnership, society, trust, or any other entity, organization or group that is authorized to do business in the United States). If the employee who will use the technology is not a 'U.S. person,' the release of that technology to that employee must either not require a license or be authorized by a license or a license exception other than this section before it may be exported or reexported to that employee under this paragraph. The exporter or reexporter and the recipient of the technology must take security precautions to protect against unauthorized release of the technology while the technology is being shipped or transmitted and used overseas. Examples of security precautions to help prevent unauthorized access include the following:
              (i) Use of secure connections, such as Virtual Private Network connections, when accessing IT networks for email and other business activities that involve the transmission and use of the technology authorized under this license exception;
              (ii) Use of password systems on electronic devices that will store the technology authorized under this license exception; and
              (iii) Use of personal firewalls on electronic devices that will store the technology authorized under this license exception.
              (3) Kits of replacement “parts” or “components.” Kits consisting of replacement “parts” or “components” for items that have been exported or reexported to Cuba under a license or license exception, or foreign-origin items that are not subject to the EAR that are owned and used exclusively by private sector entities in Cuba, may be exported or reexported under this paragraph (f)(3) provided:
              (i) The kits remain under “effective control” of the exporter or reexporter or its employees; and
              (ii) All parts and components in the kit are returned, except that one-for-one replacements may be made in accordance with the requirements of License Exception Servicing and Replacement of Parts and Equipment (RPL) and the defective parts and components returned (see Parts, Components, Accessories and Attachments in § 740.10(a)).
              (4) Exhibition and demonstration. Commodities or software for exhibition or demonstration at trade shows, or to any entity that would be eligible to receive the commodities or software under paragraphs (a) through (e) of this section, may be exported or reexported under this paragraph (f). The commodities or software must remain under the “effective control” of the exporter or reexporter or its private sector agent, may not be exhibited or demonstrated at any one location for more than 30 days and may not be used for more than the minimum extent required for effective exhibition or demonstration.
              (5) Containers. Containers that would require a license for export or reexport to Cuba but that are necessary for shipment of commodities being exported to Cuba under a license or license exception may be exported or reexported to Cuba. However, this paragraph (f) does not authorize the export of the container's contents, which, if not exempt from licensing, must be separately authorized for export or reexport under either a license or a license exception.
              [80 FR 2289, Jan. 16, 2015, as amended at 80 FR 56902, Sept. 21, 2015; 81 FR 13974, Mar. 16, 2016; 81 FR 71367, Oct. 17, 2016; 82 FR 51985, Nov. 9, 2017; 84 FR 56121, Oct. 21, 2019]

              Pt. 740, Supp. No. 1
              Supplement No. 1 to Part 740—Country Groups

                Country Group A

                  Country
                  [A:1]Wassenaar
                    participating
                    states1

                  [A:2]Missile
                    technology
                    control
                    regime

                  [A:3]Australia
                    group

                  [A:4]Nuclear
                    suppliers
                    group2

                  [A:5]
                  [A:6]

                  Albania

                  X

                  Argentina
                  X
                  X
                  X
                  X
                  X

                  Australia
                  X
                  X
                  X
                  X
                  X

                  Austria
                  X
                  X
                  X
                  X
                  X

                  Belarus

                  X

                  Belgium
                  X
                  X
                  X
                  X
                  X

                  Brazil

                  X

                  X

                  Bulgaria
                  X
                  X
                  X
                  X
                  X

                  Canada
                  X
                  X
                  X
                  X
                  X

                  Croatia
                  X

                  X
                  X
                  X

                  Cyprus

                  X
                  X

                  Czech Republic
                  X
                  X
                  X
                  X
                  X

                  Denmark
                  X
                  X
                  X
                  X
                  X

                  Estonia
                  X

                  X
                  X
                  X

                  Finland
                  X
                  X
                  X
                  X
                  X

                  France
                  X
                  X
                  X
                  X
                  X

                  Germany
                  X
                  X
                  X
                  X
                  X

                  Greece
                  X
                  X
                  X
                  X
                  X

                  Hong Kong

                  X

                  Hungary
                  X
                  X
                  X
                  X
                  X

                  Iceland
                  X
                  X
                  X
                  X
                  X

                  India
                  X
                  X
                  X

                  X

                  Ireland
                  X
                  X
                  X
                  X
                  X

                  Israel

                  X

                  Italy
                  X
                  X
                  X
                  X
                  X

                  Japan
                  X
                  X
                  X
                  X
                  X

                  Kazakhstan

                  X

                  Korea, South
                  X
                  X
                  X
                  X
                  X

                  Latvia
                  X

                  X
                  X
                  X

                  Lithuania
                  X

                  X
                  X
                  X

                  Luxembourg
                  X
                  X
                  X
                  X
                  X

                  Malta

                  X
                  X

                  X

                  Mexico
                  X

                  X
                  X

                  Netherlands
                  X
                  X
                  X
                  X
                  X

                  New Zealand
                  X
                  X
                  X
                  X
                  X

                  Norway
                  X
                  X
                  X
                  X
                  X

                  Poland
                  X
                  X
                  X
                  X
                  X

                  Portugal
                  X
                  X
                  X
                  X
                  X

                  Romania
                  X

                  X
                  X
                  X

                  Russia

                  X

                  X

                  Serbia

                  X

                  Singapore

                  X

                  Slovakia
                  X

                  X
                  X
                  X

                  Slovenia
                  X

                  X
                  X
                  X

                  South Africa
                  X
                  X

                  X

                  X

                  Spain
                  X
                  X
                  X
                  X
                  X

                  Sweden
                  X
                  X
                  X
                  X
                  X

                  Switzerland
                  X
                  X
                  X
                  X
                  X

                  Taiwan

                  X

                  Turkey
                  X
                  X
                  X
                  X
                  X

                  Ukraine3

                  X
                  X
                  X

                  United Kingdom
                  X
                  X
                  X
                  X
                  X

                  United States
                  X
                  X
                  X
                  X

                  1 Country Group A:1 is a list of the Wassenaar Arrangement Participating States, except for Malta, Russia and Ukraine.

                  2 Country Group A:4 is a list of the Nuclear Suppliers Group countries, except for the People's Republic of China (PRC).

                  3 For purposes of this supplement, as well as any other EAR provision that references the Country Groups, the designations for Ukraine also apply to the Crimea region of Ukraine. See § 746.6(c) for an exhaustive listing of license exceptions that are available for the Crimea region of Ukraine. No other EAR license exceptions are available for the Crimea region of Ukraine. The Crimea region of Ukraine includes the land territory in that region as well as any maritime area over which sovereignty, sovereign rights, or jurisdiction is claimed based on purported annexation of that land territory.

              Country Group B—Countries

                Afghanistan
                Albania
                Algeria
                Andorra
                Angola
                Antigua and Barbuda
                Argentina
                Aruba
                Australia
                Austria
                The Bahamas
                Bahrain
                Bangladesh
                Barbados
                Belgium
                Belize
                Benin
                Bhutan
                Bolivia
                Bosnia & Herzegovina
                Botswana
                Brazil
                Brunei
                Bulgaria
                Burkina Faso
                Burma
                Burundi
                Cameroon
                Canada
                Cape Verde
                Central African Republic
                Chad
                Chile
                Colombia
                Comoros
                Congo (Democratic Republic of the)
                Congo (Republic of the)
                Costa Rica
                Cote d'lvoire
                Croatia
                Curaçao
                Cyprus
                Czech Republic
                Denmark
                Djibouti
                Dominica
                Dominican Republic
                Ecuador
                Egypt
                El Salvador
                Equatorial Guinea
                Eritrea
                Estonia
                Ethiopia
                Fiji
                Finland
                France
                Gabon
                Gambia, The
                Germany
                Ghana
                Greece
                Grenada
                Guatemala
                Guinea
                Guinea-Bissau
                Guyana
                Haiti
                Honduras
                Hong Kong
                Hungary
                Iceland
                India
                Indonesia
                Ireland
                Israel
                Italy
                Jamaica
                Japan
                Jordan
                Kenya
                Kiribati
                Korea, South
                Kosovo
                Kuwait
                Latvia
                Lebanon
                Lesotho
                Liberia
                Lithuania
                Luxembourg
                Macedonia, The Former
                 Yugoslav Republic of
                Madagascar
                Malawi
                Malaysia
                Maldives
                Mali
                Malta
                Marshall Islands
                Mauritania
                Mauritius
                Mexico
                Micronesia, Federated
                 States of
                Monaco
                Montenegro

                Morocco
                Mozambique
                Namibia
                Nauru
                Nepal
                Netherlands
                New Zealand
                Nicaragua
                Niger
                Nigeria
                Norway
                Oman
                Pakistan
                Palau
                Panama
                Papua New Guinea
                Paraguay
                Peru
                Philippines
                Poland
                Portugal
                Qatar
                Romania
                Rwanda
                Saint Kitts & Nevis
                Saint Lucia
                Saint Vincent and the Grenadines
                Samoa
                San Marino
                Sao Tome & Principe
                Saudi Arabia
                Senegal
                Serbia
                Seychelles
                Sierra Leone
                Singapore
                Sint Maarten (the Dutch two-fifths of the island of Saint Martin)
                Slovakia
                Slovenia
                Solomon Islands
                Somalia
                South Africa
                South Sudan, Republic of
                Spain
                Sri Lanka
                Surinam
                Swaziland
                Sweden
                Switzerland
                Taiwan
                Tanzania
                Thailand
                Timor-Leste
                Togo
                Tonga
                Trlnidad & Tobago
                Tunisia
                Turkey
                Tuvalu
                Uganda
                United Arab Emirates
                United Kingdom
                United States
                Uruguay
                Vanuatu
                Vatican City
                Western Sahara
                Yemen
                Zambia
                Zimbabwe

              Country Group C [Reserved]

                Country Group D

                  Country
                  [D: 1]National
                    Security

                  [D: 2]Nuclear

                  [D: 3]Chemical &
                    Biological

                  [D: 4]Missile
                    Technology

                  [D: 5]U.S. Arms Embargoed Countries1

                  Afghanistan

                  X

                  X

                  Armenia
                  X

                  X

                  Azerbaijan
                  X

                  X

                  Bahrain

                  X
                  X

                  Belarus
                  X

                  X

                  X

                  Burma

                  X

                  X

                  Cambodia
                  X

                  Central African Republic

                  X

                  China (PRC)
                  X

                  X
                  X
                  X

                  Congo (Democratic Republic of)

                  X

                  Cuba

                  X
                  X

                  X

                  Cyprus

                  X

                  Egypt

                  X
                  X

                  Eritrea

                  X

                  Georgia
                  X

                  X

                  Haiti

                  X

                  Iran

                  X
                  X
                  X
                  X

                  Iraq
                  X
                  X
                  X
                  X
                  X

                  Israel

                  X
                  X
                  X

                  Jordan

                  X
                  X

                  Kazakhstan
                  X

                  X

                  Korea, North
                  X
                  X
                  X
                  X
                  X

                  Kuwait

                  X
                  X

                  Kyrgyzstan
                  X

                  X

                  Laos
                  X

                  Lebanon

                  X
                  X
                  X

                  Libya
                  X
                  X
                  X
                  X
                  X

                  Macau
                  X

                  X
                  X

                  Moldova
                  X

                  X

                  Mongolia
                  X

                  X

                  Oman

                  X
                  X

                  Pakistan

                  X
                  X
                  X

                  Qatar

                  X
                  X

                  Russia
                  X

                  X

                  Saudi Arabia

                  X
                  X

                  Somalia

                  X

                  South Sudan, Republic of

                  X

                  Sudan

                  X

                  Syria

                  X
                  X
                  X

                  Taiwan

                  X

                  Tajikistan
                  X

                  X

                  Turkmenistan
                  X

                  X

                  Ukraine
                  X

                  United Arab Emirates

                  X
                  X

                  Uzbekistan
                  X

                  X

                  Venezuela
                  X
                  X
                  X
                  X
                  X

                  Vietnam
                  X

                  X

                  Yemen

                  X
                  X

                  Zimbabwe

                  X

                  1 Note to Country Group D:5: Countries subject to U.S. arms embargoes are identified by the State Department through notices published in the Federal Register. The list of arms embargoed destinations in this paragraph is drawn from 22 CFR § 126.1 and State Department Federal Register notices related to arms embargoes (compiled at http://www.pmddtc.state.gov/embargoed_countries/index.html) and will be amended when the State Department publishes subsequent notices. If there are any discrepancies between the list of countries in this paragraph and the countries identified by the State Department as subject to a U.S. arms embargo (in the Federal Register), the State Department's list of countries subject to U.S. arms embargoes shall be controlling.

                Country Group E 1

                  Country
                  [E:1]Terrorist
                    supporting
                    countries 2

                  [E:2]Unilateral
                    embargo

                  Cuba

                  X

                  Iran
                  X

                  Korea, North
                  X

                  Sudan
                  X

                  Syria
                  X

                  1 In addition to the controls maintained by the Bureau of Industry and Security pursuant to the EAR, note that the Department of the Treasury administers:
                (a) A comprehensive embargo against Cuba, Iran, and Sudan; and
                (b) An embargo against certain persons, e.g., Specially Designated Terrorists (SDT), Foreign Terrorist Organizations (FTO), Specially Designated Global Terrorists (SDGT), and Specially Designated Narcotics Traffickers (SDNT). Please see part 744 of the EAR for controls maintained by the Bureau of Industry and Security on these and other persons.

                  2 The President made inapplicable with respect to Iraq provisions of law that apply to countries that have supported terrorism.

              [61 FR 12768, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting supplement no. 1 to part 740, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              Pt. 740, Supp. No. 2
              Supplement No. 2 to Part 740—Items That May Be Donated To Meet Basic Human Needs Under the Humanitarian License Exception
              (a) Health

              Equipment for the Handicapped
              Hospital Supplies and Equipment
              Laboratory Supplies and Equipment
              Medical Supplies and Devices
              Medicine-Processing Equipment
              Medicines
              Vitamins
              Water Resources Equipment
              Food
              Agricultural Materials and Machinery Suited to Small-Scale Farming Operations
              Agricultural Research and Testing Equipment
              Fertilizers
              Fishing Equipment and Supplies Suited to Small-Scale Fishing Operations

              (b) Food

              Insecticides
              Pesticides
              Seeds
              Small-Scale Irrigation Equipment
              Veterinary Medicines and Supplies

              (c) Clothes and Household Goods

              Bedding
              Clothes
              Cooking Utensils
              Fabric
              Personal Hygiene Items
              Soap-Making Equipment
              Weaving and Sewing Equipment

              (d) Shelter

              Building Materials
              Hand Tools

              (e) Education

              Books
              Individual School Supplies
              School Furniture
              Special Education Supplies and Equipment for the Handicapped

              (f) Basic Support Equipment and Supplies Necessary To Operate and Administer the Donative Program

              Audio-Visual Aids for Training
              Generators
              Office Supplies and Equipment

              Pt. 740, Supp. No. 3
              Supplement No. 3 to Part 740—License Exception ENC Favorable Treatment Countries

                Austria
                Australia
                Belgium
                Bulgaria
                Canada
                Croatia
                Cyprus
                Czech Republic
                Estonia
                Denmark
                Finland
                France
                Germany
                Greece
                Hungary
                Iceland
                Ireland
                Italy
                Japan
                Latvia
                Lithuania
                Luxembourg
                Malta
                Netherlands
                New Zealand
                Norway
                Poland
                Portugal
                Romania
                Slovakia
                Slovenia
                Spain
                Sweden
                Switzerland
                Turkey
                United Kingdom

              [69 FR 71363, Dec. 9, 2004, as amended at 73 FR 57507, Oct. 3, 2008; 81 FR 64673, Sept. 20, 2016]

            Pt. 742
            PART 742—CONTROL POLICY—CCL BASED CONTROLS

              Sec.
              742.1
              Introduction.
              742.2
              Proliferation of chemical and biological weapons.
              742.3
              Nuclear nonproliferation.
              742.4
              National security.
              742.5
              Missile technology.
              742.6
              Regional stability.
              742.7
              Crime control and detection.
              742.8
              Anti-terrorism: Iran.
              742.9
              Anti-terrorism: Syria.
              742.10
              Anti-terrorism: Sudan.
              742.11
              Specially designed implements of torture, including thumbscrews, thumbcuffs, fingercuffs, spiked batons, and parts and accessories, n.e.s.
              742.12
              [Reserved]
              742.13
              Communications intercepting devices; software and technology for communications intercepting devices.
              742.14

              Significant items: hot section technology for the development, production or overhaul of commercial aircraft engines, components, and systems.
              742.15
              Encryption items.
              742.16
              [Reserved]
              742.17
              Exports of firearms to OAS member countries.
              742.18
              Chemical Weapons Convention (CWC or Convention).
              742.19
              Anti-terrorism: North Korea.
              Supplement No. 1 to Part 742—Nonproliferation of Chemical and Biological Weapons
              Supplement No. 2 to Part 742—Anti-Terrorism Controls: Iran, North Korea, Syria and Sudan Contract Sanctity Dates and Related Policies
              Supplement Nos. 3-5 to Part 742 [Reserved]
              Supplement No. 6 to Part 742—Technical Questionnaire for Encryption and Other “Information Security” Items
              Supplement No. 7 to Part 742—Description of Major Weapons Systems
              Supplement No. 8 to Part 742—Self-Classification Report for Encryption Items

               Authority:

              Pub. L. 115-232, Title XVII, Subtitle B. 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; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; 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. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 Comp., p. 320; Notice of November 6, 2017, 82 FR 51971 (November 8, 2017); Notice of August 8, 2018, 83 FR 39871 (August 13, 2018).

              Source:
              61 FR 12786, Mar. 25, 1996, unless otherwise noted.

              § 742.1
              Introduction.
              In this part, references to the Export Administration Regulations (EAR) are references to 15 CFR chapter VII, subchapter C.
              (a) Scope. This part describes all the reasons for control reflected in the Country Chart in supplement no. 1 to part 738 of the EAR. In addition, it includes licensing requirements and licensing policies for the following items that are not reflected on the Country Chart: specially designed implements of torture, high performance computers, and communications intercepting devices. In addition to describing the reasons for control and licensing requirements and policies, this part describes any applicable contract sanctity provisions that may apply to specific controls and includes a description of any multilateral regime under which specific controls are maintained.
              (b) Reasons for control listed on the CCL not covered by this part. This part describes the license requirements and the licensing policies for all the “Reasons for Control” that are listed on the Commerce Control List (CCL) except “Short Supply” and “U.N. Sanctions,” which do not appear on the Country Chart.
              (1) Short supply. ECCNs containing items subject to short supply controls (“SS”) refer the exporter to part 754 of the EAR. These ECCNs are: 0A980 (Horses for export by sea); 1C980 (certain inorganic chemicals); 1C982 (certain other petroleum products); 1C983 (certain natural gas liquids and other natural gas derivatives); 1C984 (certain manufactured gas and synthetic natural gas (except when commingled with natural gas and thus subject to export authorization from the Department of Energy); and 1C988 (Unprocessed western red cedar (thuja plicata) logs and timber, and rough, dressed and worked lumber containing wane).
              (2) U.N. Sanctions. The United Nations imposes sanctions, short of complete embargoes, against certain countries which may result in controls that supplement those otherwise maintained under the EAR for that particular country. This part does not address license requirements and licensing policies for controls implementing U.N. sanctions. CCL entries containing items subject to U.N. sanctions will refer the exporter to part 746 of the EAR, Embargoes and Other Special Controls, for any supplemental controls that may apply to exports and reexports involving these countries.
              (c) Exports and reexports involving Cuba and Iran. This part does not cover license requirements and licensing policies that apply to exports and reexports to embargoed destinations (Cuba and Iran). These comprehensive embargoes cover a broader range of items than those reflected in the CCL. If you are exporting or reexporting to any of these destinations, you should first review part 746 of the EAR, Embargoes and Other Special Controls.

              (d) Anti-terrorism Controls on Iran, North Korea, Sudan and Syria. Commerce maintains anti-terrorism controls on Iran, North Korea, Syria and Sudan under section 6(a) of the Export Administration Act. Items controlled under section 6(a) to Iran, Syria, Sudan, and North Korea are described in §§ 742.8, 742.9, 742.10, and 742.19, respectively, and in supplement no. 2 to part 742. Commerce also maintains controls under section 6(j) of the EAA to Iran, North Korea, Sudan and Syria. Items controlled to these countries under EAA section 6(j) are also described in supplement 2 to part 742. The Secretaries of Commerce and State are required to notify appropriate Committees of the Congress 30 days before issuing a license for an item controlled under section 6(j) to North Korea, Iran, Sudan or Syria. If you are exporting or reexporting to Iran, North Korea, or Syria, you should review part 746 of the EAR, Embargoes and Other Special Controls.
              (e) End-user and end-use based controls. This part does not cover prohibitions and licensing requirements for exports of items not included on the CCL that are subject to end-use and end-user controls: certain nuclear end-uses; certain missile end-uses; certain chemical and biological weapons end-uses; certain naval nuclear propulsion end-uses; certain activities of U.S. persons; and certain exports to and for the use of certain foreign vessels and aircraft. Licensing requirements and policies for these exports are contained in part 744 of the EAR.
              (f) Overlapping license policies. Many items on the CCL are subject to more than one type of control (e.g., national security (NS), missile technology (MT), nuclear nonproliferation (NP), regional stability (RS)). In addition, applications for all items on the CCL, other than those controlled for short supply reasons, may be reviewed for missile technology (see § 742.5(b)(3) of this part), nuclear nonproliferation (see § 742.3(b)(2) of this part), or chemical and biological weapons (see § 742.2(b)(3) of this part), if the end-use or end-user may be involved in certain proliferation activities. Finally, many multilaterally controlled items are reviewed for anti-terrorism reasons if they are destined for a terrorism-supporting country (see paragraph (d) of this section). Your application for a license will be reviewed under all applicable licensing policies. A license will be issued only if an application can be approved under all applicable licensing policies.
              [61 FR 12786, Mar. 25, 1996, as amended at 62 FR 25458, May 9, 1997; 65 FR 38151, June 19, 2000; 69 FR 23629, Apr. 29, 2004; 69 FR 46075, July 30, 2004; 71 FR 51717, Aug. 31, 2006; 72 FR 3725, Jan. 26, 2007; 76 FR 77117, Dec. 12, 2011; 79 FR 34410, June 17, 2014; 80 FR 43318, July 22, 2015; 81 FR 29486, May 12, 2016]

              § 742.2
              Proliferation of chemical and biological weapons.
              (a) License requirements. The following controls are maintained in support of the U.S. foreign policy of opposing the proliferation and illegal use of chemical and biological weapons. (See also § 742.18 of this part for license requirements pursuant to the Chemical Weapons Convention).
              (1) If CB Column 1 of the Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations, including Canada, for the following:
              (i) Human pathogens, zoonoses, toxins, animal pathogens, genetically modified microorganisms and plant pathogens identified in ECCNs 1C351, 1C353, and 1C354; and
              (ii) Technology (ECCNs 1E001 and 1E351) for the production and/or disposal of microbiological commodities described in paragraph (a)(1)(i) of this section.
              (2) If CB Column 2 of the Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations except countries in Country Group A:3 (see supplement no. 1 to part 740 of the EAR) (Australia Group members) for the following:
              (i) Chemicals identified in ECCN 1C350 (precursor and intermediate chemicals used in the production of chemical warfare agents).

              (A) This license requirement includes chemical mixtures identified in ECCN 1C350.b, .c, or .d, except as specified in License Requirements Note 2 to that ECCN.

              (B) This licensing requirement does not include chemical compounds created with any chemicals identified in ECCN 1C350, unless those compounds are also identified in ECCN 1C350.
              (C) This licensing requirement does not apply to any of the following medical, analytical, diagnostic, and food testing kits that consist of pre-packaged materials of defined composition that are specifically developed, packaged, and marketed for diagnostic, analytical, or public health purposes:
              (1) Test kits containing no more than 300 grams of any chemical controlled by ECCN 1C350.b or .c (CB-controlled chemicals also identified as Schedule 2 or 3 chemicals under the CWC) that are destined for export or reexport to CWC States Parties (destinations listed in supplement no. 2 to part 745 of the EAR). Such test kits are controlled by ECCN 1C395 for CB and CW reasons, to States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR), and for AT reasons.
              (2) Test kits that contain no more than 300 grams of any chemical controlled by ECCN 1C350.d (CB-controlled chemicals not also identified as Schedule 1, 2, or 3 chemicals under the CWC). Such test kits are controlled by ECCN 1C995 for AT reasons.
              (ii) Software (ECCN 1D390) for process control that is specifically configured to control or initiate production of the chemical precursors controlled by ECCN 1C350.
              (iii) Technology (ECCN 1E001) for the development or production of chemical detection systems and dedicated detectors therefore, controlled by ECCN 1A004.c, that also have the technical characteristics described in ECCN 2B351.a.
              (iv) Technology (ECCNs 1E001 and 1E350) involving the following for facilities designed or intended to produce chemicals described in 1C350:
              (A) Overall plant design;
              (B) Design, specification, or procurement of equipment;
              (C) Supervision of construction, installation, or operation of complete plant or components thereof;
              (D) Training of personnel; or
              (E) Consultation on specific problems involving such facilities.
              (v) Technology (ECCNs 1E001 and 1E351) for the production and/or disposal of chemical precursors described in ECCN 1C350;
              (vi) Equipment and materials identified in ECCN 2B350 or 2B351 on the CCL, chemical detection systems controlled by 1A004.c for detecting chemical warfare agents and having the characteristics of toxic gas monitoring systems described in 2B351.a, and valves controlled by ECCN 2A226 having the characteristics of those described in 2B350.g, which can be used in the production of chemical weapons precursors or chemical warfare agents.
              (vii) Equipment and materials identified in ECCN 2B352, which can be used in the production of biological agents.
              (viii) Dedicated software identified in ECCN 2D351 for the “use” of toxic gas monitoring systems and their dedicated detecting components controlled by ECCN 2B351.
              (ix) Technology identified in ECCN 2E001 for the “development” of software controlled by ECCN 2D351.
              (x) Technology identified in ECCN 2E001, 2E002, or 2E301 for:
              (A) The development, production, or use of items controlled by ECCN 2B350, 2B351, or 2B352; or
              (B) The development or production of valves controlled by ECCN 2A226 having the characteristics of those described in ECCN 2B350.g.
              (xi) Technology identified in ECCN 2E201 or 2E290 for the use of valves controlled by ECCN 2A226 having the characteristics of those described in 2B350.g.
              (3) If CB Column 3 of the Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to Country Group D:3 (see supplement no. 1 to part 740 of the EAR) for medical products identified in ECCN 1C991.d.
              (4) A license is required, to States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR), for mixtures controlled by 1C395.a and test kits controlled by 1C395.b.
              (b) Licensing policy. (1) License applications for the items described in paragraph (a) of this section will be considered on a case-by-case basis to determine whether the export or reexport would make a material contribution to the design, development, production, stockpiling or use of chemical or biological weapons. When an export or reexport is deemed to make such a material contribution, the license will be denied. When an export or reexport is intended to be used in a chemical weapons or biological weapons program, or for chemical or biological weapons terrorism purposes, it is deemed to make a material contribution. The factors listed in paragraph (b)(2) of this section are among those that will be considered to determine what action should be taken on license applications for these items.
              (2) The following factors are among those that will be considered to determine what action should be taken on license applications for the items described in paragraph (a) of this section:
              (i) The specific nature of the end-use, including the appropriateness of the stated end-use;
              (ii) The significance of the export and reexport in terms of its potential contribution to the design, development, production, stockpiling, or use of chemical or biological weapons;
              (iii) The nonproliferation credentials of the importing country, including the importing country's chemical and biological capabilities and objectives;
              (iv) The extent and effectiveness of the export control system in the importing country and in any intermediary country through which the items being exported or reexported will transit or be transshipped en route to the importing country;
              (v) The risk that the items will be diverted for use in a chemical weapons or biological weapons program, or for chemical weapons or biological weapons terrorism purposes;
              (vi) The reliability of the parties to the transaction, including whether:
              (A) An export or reexport license application involving any such parties has previously been denied;
              (B) Any such parties have been engaged in clandestine or illegal procurement activities;
              (C) The end-user is capable of securely handling and storing the items to be exported or reexported;
              (vii) Relevant information about proliferation and terrorism activities, including activities involving the design, development, production, stockpiling, or use of chemical or biological weapons by any parties to the transaction;
              (viii) The types of assurances or guarantees against the design, development, production, stockpiling, or use of chemical or biological weapons that are given in a particular case, including any relevant assurances provided by the importing country or the end-user;
              (ix) The applicability of other multilateral export control or nonproliferation agreements (e.g., the Chemical Weapons Convention and the Biological and Toxin Weapons Convention) to the transaction; and
              (x) The existence of a pre-existing contract.
              (3) BIS will review license applications in accordance with the licensing policy described in paragraph (b)(1) of this section for items not described in paragraph (a) of this section that:

              (i) Require a license for reasons other than short supply; and

              (ii) Could be destined for the design, development, production, stockpiling, or use of chemical or biological weapons, or for a facility engaged in such activities.
              (4) License applications for items described in paragraph (a) of this section, when destined for the People's Republic of China or Russia, will be reviewed in accordance with the licensing policies in both paragraph (b) of this section and § 742.4(b)(7).
              (c) Contract sanctity. Contract sanctity dates are set forth in supplement no. 1 to part 742. Applicants who wish that a preexisting contract be considered in reviewing their license applications must submit documentation sufficient to establish the existence of such a contract.
              (d) Australia Group. The Australia Group, a multilateral body that works to halt the spread of chemical and biological weapons, has developed common control lists of items specifically related to chemical and biological weapons. Australia Group members are listed in Country Group A:3 (see supplement no. 1 to part 740 of the EAR). Controls on items listed in paragraph (a) of this section are consistent with lists agreed to in the Australia Group.

              (e) License application requirements and instructions. Unique application and submission requirements for chemicals, medicinals, and pharmaceuticals are described in paragraph (a) of supplement no. 2 to part 748 of the EAR.
              [61 FR 12786, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 742.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 742.3
              Nuclear nonproliferation.
              (a) License requirements. Section 309(c) of the Nuclear Non-Proliferation Act of 1978 requires BIS to identify items subject to the EAR that could be of significance for nuclear explosive purposes if used for activities other than those authorized at the time of export or reexport. ECCNs on the CCL that include the symbol “NP 1” or “NP 2” in the “Country Chart” column of the “License Requirements” section identify items that could be of significance for nuclear explosive purposes and are therefore subject to licensing requirements under this part and under section 309(c) of the Nuclear Non-Proliferation Act of 1978. These items are referred to as “The Nuclear Referral List” and are subject to the following licensing requirements:
              (1) If NP Column 1 of the Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations, except those Nuclear Suppliers Group (NSG) member countries that are listed under Country Group A:4 in supplement no. 1 to part 740 of the EAR.
              (2) If NP Column 2 of the Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the applicable ECCN, a license is required to Country Group D:2 (see supplement no. 1 to part 740 of the EAR).
              (3) Other nuclear-related license requirements are described in §§ 744.2 and 744.5 of the EAR.
              (b) Licensing policy. (1) To implement the controls in paragraph (a) of this section, the following factors are among those used to determine what action should be taken on individual applications:
              (i) Whether the items to be transferred are appropriate for the stated end-use and whether that stated end-use is appropriate for the end-user;
              (ii) The significance for nuclear purposes of the particular item;
              (iii) Whether the items to be exported or reexported are to be used in research on, or for the development, design, manufacture, construction, operation, or maintenance of, any reprocessing or enrichment facility;
              (iv) The types of assurances or guarantees given against use for nuclear explosive purposes or proliferation in the particular case;
              (v) Whether any party to the transaction has been engaged in clandestine or illegal procurement activities;
              (vi) Whether an application for a license to export or reexport to the end-user has previously been denied, or whether the end-user has previously diverted items received under a general license, a License Exception, or a validated license to unauthorized activities;
              (vii) Whether the export or reexport would present an unacceptable risk of diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2(a) of the EAR;
              (viii) The nonproliferation credentials of the importing country, based on consideration of the following factors:
              (A) Whether the importing country is a party to the Nuclear Non-Proliferation Treaty (NPT) or to the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) or to a similar international legally-binding nuclear nonproliferation agreement;
              (B) Whether the importing country has all of its nuclear activities, facilities, or installations that are operational, being designed, or under construction under International Atomic Energy Agency (IAEA) safeguards or equivalent full scope safeguards;
              (C) Whether there is an agreement for cooperation in the civil uses of atomic energy between the U.S. and the importing country;

              (D) Whether the actions, statements, and policies of the government of the importing country are in support of nuclear nonproliferation and whether that government is in compliance with its international obligations in the field of non-proliferation;
              (E) The degree to which the government of the importing country cooperates in non-proliferation policy generally (e.g., willingness to consult on international nonproliferation issues); and
              (F) Information on the importing country's nuclear intentions and activities; and
              (ix) Whether the recipient state has sufficient national export controls (as described in paragraph 3 of United Nations Security Council Resolution 1540 (2004)) to prevent an unacceptable risk of retransfer or diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2(a) of the EAR.

              (2) In addition, BIS will review license applications in accordance with the licensing policy described in paragraph (b) of this section for items not on the Nuclear Referral List that:
              (i) Require a license on the CCL for reasons other than “short supply;” and
              (ii) Are intended for a nuclear related end-use or end-user.
              (3) For the People's Republic of China, the general licensing policy for applications for those items that would make a direct and significant contribution to nuclear weapons and their delivery systems is extended review or denial.
              (4) License applications for items described in paragraph (a) of this section, when destined to the People's Republic of China or Russia, will be reviewed in accordance with the licensing policies in both paragraph (b) of this section and § 742.4(b)(7).
              (c) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.
              (d) Nuclear Suppliers Group. Most items on the Nuclear Referral List that require a license under NP Column No. 1 on the Country Chart (see supplement no. 1 to part 738 of the EAR) are contained in the Annex to the “Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Material, and Related Technology” (the Annex), as published by the International Atomic Energy Agency in INFCIRC/254/Revision 1/Part 2. The adherents to INFCIRC/254/Revision 1/Part 2, which includes the Nuclear Suppliers Guidelines, have agreed to establish export licensing procedures for the transfer of items identified in the Annex. Items that are listed as requiring a license under NP Column No. 2 on the Country Chart (see supplement no. 1 to part 738 of the EAR) are not included in the Annex and are controlled only by the United States.
              [61 FR 12786, Mar. 25, 1996, as amended at 70 FR 51252, Aug. 30, 2005; 72 FR 33656, June 19, 2007; 76 FR 4231, Jan. 25, 2011; 79 FR 46324, Aug. 7, 2014; 81 FR 94967, Dec. 27, 2016]

              § 742.4
              National security.
              (a) License requirements. It is the policy of the United States to restrict the export and reexport of items that would make a significant contribution to the military potential of any other country or combination of countries that would prove detrimental to the national security of the United States. Accordingly, a license is required for exports and reexports to all destinations, except Canada, for all items in ECCNs on the CCL that include NS Column 1 in the Country Chart column of the “License Requirements” section. A license is required to all destinations except those in Country Group A:1 (see supplement no. 1 to part 740 of the EAR), for all items in ECCNs on the CCL that include NS column 2 in the Commerce Country Chart column of the “License Requirements” section except those cameras in ECCN 6A003.b.4.b that have a focal plane array with 111,000 or fewer elements and a frame rate of 60 Hz or less. A license is required to all destinations except those in Country Group A:1 (see supplement no. 1 to part 740) for those cameras in ECCN 6A003.b.4.b that have a focal plane array with 111,000 or fewer elements and a frame rate of 60 Hz or less and for cameras being exported or reexported pursuant to an authorization described in § 742.6(a)(2)(iii) or (v) of the EAR. The purpose of the controls is to ensure that these items do not make a contribution to the military potential of countries in Country Group D:1 (see supplement no. 1 to part 740 of the EAR) that would prove detrimental to the national security of the United States. License Exception GBS is available for the export and reexport of certain national security controlled items to Country Group B (see § 740.4 and supplement no. 1 to part 740 of the EAR).
              (b) Licensing policy. (1)(i) The policy for national security controlled items exported or reexported to any country except a country in Country Group D:1 (see supplement no. 1 to part 740 of the EAR) is to approve applications unless there is a significant risk that the items will be diverted to a country in Country Group D:1.
              (ii) When destined to a country listed in Country Group D:5 in supplement no. 1 to part 740 of the EAR, however, items classified under 9x515 or “600 series” ECCNs will be reviewed consistent with United States arms embargo policies in § 126.1 of the ITAR.
              (iii) When destined to the People's Republic of China or a country listed in Country Group E:1 in supplement no. 1 to part 740 of the EAR, items classified under any 9x515 ECCN will be subject to a policy of denial.
              (2) Except for those countries described in paragraphs (b)(5) through (b)(7) of this section, the general policy for exports and reexports of items to Country Group D:1 (see supplement no. 1 to part 740 of the EAR) is to approve applications when BIS determines, on a case-by-case basis, that the items are for civilian use or would otherwise not make a significant contribution to the military potential of the country of destination that would prove detrimental to the national security of the United States.
              (3) To permit such policy judgments to be made, each application is reviewed in the light of prevailing policies with full consideration of all aspects of the proposed transaction. The review generally includes:
              (i) An analysis of the kinds and quantities of items to be shipped;
              (ii) Their military or civilian uses;
              (iii) The unrestricted availability abroad of the same or comparable items;
              (iv) The country of destination;
              (v) The ultimate end-users in the country of destination; and
              (vi) The intended end-use.
              (4) Although each proposed transaction is considered individually, items described in Advisory Notes on the Commerce Control List are more likely to be approved than others.
              (5) In recognition of efforts made to adopt safeguard measures for exports and reexports, Kazakhstan and Mongolia are accorded enhanced favorable consideration licensing treatment.
              (6) The general policy for Cambodia and Laos is to approve license applications when BIS determines, on a case-by-case basis, that the items are for an authorized use in Cambodia or Laos and are not likely to be diverted to another country or use contrary to the national security or foreign policy controls of the United States.
              (7) For the People's Republic of China (PRC), there is a general policy of approval for license applications to export, reexport, or transfer items to civil end-uses. There is a presumption of denial for license applications to export, reexport or transfer items that would make a direct and significant contribution to the PRC's or Russia's military capabilities such as, but not limited to, the major weapons systems described in supplement no. 7 to part 742 of the EAR.
              (8) For India, there is a general policy of approval for license applications to export, reexport, or transfer items, including “600 series” items, for civil or military end uses in India, for ultimate end use by the Government of India, for reexport to countries in Country Group A:5, or for return to the United States, so long as such items are not for use in nuclear, “missile,” or chemical or biological weapons activities.
              (c) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.
              (d) [Reserved]
              [61 FR 12786, Mar. 25, 1996, as amended at 61 FR 64283, Dec. 4, 1996; 70 FR 67348, Nov. 7, 2005; 72 FR 33656, June 19, 2007; 74 FR 23946, May 22, 2009; 74 FR 68145, Dec. 23, 2009; 78 FR 22721, Apr. 16, 2013; 79 FR 27436, May 13, 2014; 79 FR 45679, Aug. 6, 2014; 79 FR 76873, Dec. 23, 2014; 80 FR 29443, May 21, 2015; 81 FR 94967, Dec. 27, 2016; 82 FR 6220, Jan. 19, 2017]

              § 742.5
              Missile technology.
              (a) License requirements. (1) In support of U.S. foreign policy to limit the proliferation of missiles, a license is required to export and reexport items related to the design, development, production, or use of missiles. These items are identified in ECCNs on the CCL as MT Column No. 1 in the Country Chart column of the “License Requirements” section. Licenses for these items are required to all destinations, except Canada, as indicated by MT Column 1 of the Country Chart (see supplement no. 1 to part 738 of the EAR).
              (2) The term “missiles” is defined as rocket systems (including ballistic missiles, space launch vehicles, and sounding rockets) and unmanned aerial vehicle systems (including cruise missiles, target drones, and reconnaissance drones) capable of delivering at least 500 kilograms (kg) payload to a range of at least 300 kilometers (km). See § 746.3 of the EAR for definition of a “ballistic missile” to be exported or reexported to Iraq.
              (b) Licensing policy. (1) Applications to export and reexport items identified in ECCNs on the CCL as MT Column No. 1 in the Country Chart column of the “License Requirements” section will be considered on a case-by-case basis to determine whether the export or reexport would make a material contribution to the proliferation of missiles. Applications for exports and reexports of such items contained in Category 7A or described by ECCN 9A101 on the CCL will be considered more favorably if such exports or reexports are determined to be destined to a manned aircraft, satellite, land vehicle, or marine vessel, in quantities appropriate for replacement parts for such applications. When an export or reexport is deemed to make a material contribution to the proliferation of missiles, the license will be denied.
              (2) The following factors are among those that will be considered in reviewing individual applications.
              (i) The specific nature of the end-use;
              (ii) The significance of the export and reexport in terms of its contribution to the design, development, production, or use of missiles;
              (iii) The capabilities and objectives of the missile and space programs of the recipient country;
              (iv) The nonproliferation credentials of the importing country;
              (v) The types of assurances or guarantees against design, development, production, or use of missiles that are given in a particular case; and
              (vi) The existence of a preexisting contract.
              (3)(i) Consistent with the MTCR Annex General Minimum Software Note, MTCR Annex General Technology Note and § 750.7(c)(1)(x) of the EAR, the approval of any item controlled for MT reasons on a BIS license also authorizes the export, reexport, or transfer (in-country) to the same ultimate consignee(s) and end user(s) specified on the license of the minimum “software,” excluding source code, controlled for MT reasons that is required for the installation, operation, maintenance or repair of the item and the “technology” required for the installation, operation, maintenance, or repair of the item in order to ensure the item's safe operation as originally intended. The approval of any item controlled for MT reasons on a BIS license also authorizes the later export, reexport, or transfer (in-country) of “software” controlled for MT reasons intended to correct defects (bug fixes) in a previously legally exported item under a BIS license to the same ultimate consignee(s) and end user(s) specified on the license, provided that the capability and/or performance of the item are not otherwise enhanced. This MT licensing policy is implemented concurrent with § 750.7(c)(1)(x) because it applies to all MT licenses, except when a condition is placed on the license which excludes the use of § 750.7(c)(1)(x), as described in paragraph (b)(3)(ii) of this section.

              (ii) Applicants are not required to identify or provide any support documentation for such minimum “software” or “technology” on a license application for MT controlled items because such minimum “software” or “technology” is authorized within the scope of the license, consistent with § 750.7(c)(1)(x). Applicants will be informed when such minimum “software” and/or “technology” in § 750.7(c)(1)(x) is excluded from the license by a BIS condition on the license, which will state the following: “This license does not authorize the export, reexport or transfer (in-country) of the minimum “software” and/or “technology” specified in paragraph (c)(1)(x) of § 750.7 (See paragraph (b)(3) of § 742.5).”

                Note to paragraph (b)(3):
                License Exception TSU under § 740.13 of the EAR is available for the ECCNs controlled for MT reasons specified in paragraph (a)(5) in § 740.2, provided the software or technology is for an end use specified in that paragraph and meets the requirements of License Exception TSU. (See §§ 740.2(a)(5) and 740.13). The licensing policy in paragraph (b)(3) is only available for licensed exports (or reexports, or transfers (in-country)).

              (4) Controls on other items. BIS will review license applications, in accordance with the licensing policy described in paragraph (b)(1) of this section, for items not described in paragraph (a) of this section that:
              (i) Require a validated license for reasons other than short supply; and
              (ii) Could be destined for the design, development, production, or use of missiles, or for a facility engaged in such activities.
              (5) License applications for items described in paragraph (a) of this section, when destined for the People's Republic of China, will be reviewed in accordance with the licensing policies in both paragraph (b) of this section and § 742.4(b)(7).
              (c) Contract sanctity. The following contract sanctity dates have been established:
              (1) License applications for batch mixers specified in ECCN 1B117 involving contracts that were entered into prior to January 19, 1990, will be considered on a case-by-case basis.
              (2) License applications subject to ECCN 1B115.b or .c that involve a contract entered into prior to March 7, 1991, will be considered on a case-by-case basis.
              (3) Applicants who wish that a pre-existing contract be considered in reviewing their license applications must submit documentation sufficient to establish the existence of a contract.
              (d) Missile Technology Control Regime. Missile Technology Control Regime (MTCR) members are listed in Country Group A:2 (see supplement no. 1 to part 740 of the EAR). Controls on items identified in paragraph (a) of this section are consistent with the list agreed to in the MTCR and included in the MTCR Annex.
              [61 FR 12786, Mar. 25, 1996, as amended at 68 FR 16147, Apr. 2, 2003; 69 FR 46075, July 30, 2004; 72 FR 33656, June 19, 2007; 76 FR 4231, Jan. 25, 2011; 81 FR 19030, Apr. 4, 2016; 81 FR 76861, Nov. 4, 2016; 82 FR 31446, July 7, 2017]

              § 742.6
              Regional stability.
              (a) License requirements. The following controls are maintained in support of U.S. foreign policy to maintain regional stability:
              (1) RS Column 1 license requirements in general. A license is required for exports and reexports to all destinations, except Canada, for all items in ECCNs on the CCL that include RS Column 1 in the Country Chart column of the “License Requirements” section. Transactions described in paragraphs (a)(2), (a)(3), or (a)(8) of this section are subject to the RS Column 1 license requirements set forth in those paragraphs rather than the license requirements set forth in this paragraph (a)(1).
              (2) Special RS Column 1 license requirements applicable to certain thermal imaging cameras. (i) As indicated in the CCL and in RS Column 1 of the Commerce Country Chart, cameras described in 6A003 b.4.b require a license to all destinations other than Canada if such cameras have a frame rate greater than 60 Hz.
              (ii) Except as noted in paragraph (a)(2)(iii) of this section, as indicated in the CCL and in RS Column 1 of the Commerce Country Chart, cameras described in 6A003 b.4.b require a license to all destinations other than Canada if such cameras incorporate a focal plane array with more than 111,000 elements and a frame rate of 60 Hz or less, or cameras described in 6A003 b.4.b that are being exported or reexported to be embedded in a civil product.

              (iii) BIS may issue licenses for cameras subject to the license requirement of paragraph (a)(2)(ii) of this section that are fully-packaged for use as consumer-ready civil products that, in addition to the specific transactions authorized by such license, authorize exports and reexports of such cameras without a license to any civil end-user to whom such exports or reexport are not otherwise prohibited by U.S. law in a destination in Country Group A:1 (see supplement no. 1 to part 740 of the EAR). The license requirements of this paragraph (a)(2) shall not apply to exports or reexports so authorized. In this paragraph, the term “civil end-user” means any entity that is not a national armed service (army, navy, marine, air force, or coast guard), national guard, national police, government intelligence organization or government reconnaissance organization, or any person or entity whose actions or functions are intended to support “military end-uses” as defined in § 744.17(d) of the EAR.
              (iv) Except as noted in paragraph (a)(2)(v) of this section, as indicated in the CCL and in RS Column 1 of the Commerce Country Chart, cameras described in 6A003 b.4.b require a license to all destinations other than Canada if such cameras incorporate a focal plane array with 111,000 elements or less and a frame rate of 60 Hz or less and are being exported or reexported to be embedded in a civil product.
              (v) BIS may also issue licenses for the cameras described in paragraph (a)(2)(iv) of this section that, in addition to the specific transactions authorized by such license, authorize exports and reexports to authorized companies described in the license for the purpose of embedding such cameras into a completed product that will be distributed only in countries in Country Group A:1 (see supplement no. 1 to part 740 of the EAR). The license requirements of this paragraph (a)(2) shall not apply to exports or reexports so authorized. In this paragraph, the term “authorized companies” means companies that have been previously licensed for export, are not the subject of relevant negative intelligence or open source information, have not been the subject of a Department of Commerce or Department of State enforcement action within the past two years, have demonstrable production capacity, and do not pose an unacceptable risk of diversion.
              (3) Special RS Column 1 license requirement applicable to military commodities. A license is required for reexports to all destinations except Canada for items classified under ECCN 0A919 except when such items are being reexported as part of a military deployment by a unit of the government of a country in Country Group A:1 (see supplement no. 1 to part 740 of the EAR) or the United States.
              (4) RS Column 2 license requirements—(i) License requirements applicable to most RS Column 2 items. As indicated in the CCL and in RS Column 2 of the Commerce Country Chart (see supplement no. 1 to part 738 of the EAR), a license is required to any destination except those in Country Group A:1 (see supplement no. 1 to part 740 of the EAR) and India for all items in ECCNs on the CCL that include RS Column 2 in the Country Chart column of the “License Requirements” section. A license continues to be required for items controlled under ECCNs 6A003.b.4.b and 9A515.e for RS Column 2 reasons when destined to India.
              (ii) Special RS Column 2 license requirements applicable only to certain cameras. As indicated by the CCL, and RS column 2 and footnote number 4 to the Commerce Country Chart, a license is required to any destination except a country in Country Group A:1 (see supplement no. 1 to part 740 of the EAR) for fully-packaged thermal imaging cameras for use as consumer-ready civil products controlled by 6A003.b.4.b when incorporating “focal plane arrays” that have not more than 111,000 elements and a frame rate of 60Hz or less and that are not being exported or reexported to be embedded in a civil product.
              (5) RS requirements that apply to Iraq. As indicated on the CCL, a license is required for the export or reexport to Iraq or transfer within Iraq of the following items controlled for RS reasons on the CCL: 0B999, 0D999, 1B999, 1C992, 1C995, 1C997, 1C999 and 6A992. The Commerce Country Chart is not designed to determine RS licensing requirements for these ECCNs.
              (6) RS requirement that applies to Hong Kong. A license is required to export or reexport to Hong Kong any item controlled in ECCN 6A003.b.4.b
              (7) RS Column 1 license requirements and related policies for ECCN 0Y521 items—(i) Scope. This paragraph (a)(7) supplements the information in the 0Y521 ECCNs and in supplement no. 5 to part 774 (Items Classified Under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521). This paragraph alerts exporters, reexporters and transferors to the procedures that apply to items classified under the 0Y521 ECCNs.
              (ii) 0Y521 Items. Items subject to the EAR that are not listed elsewhere in the CCL, but which the Department of Commerce, with the concurrence of the Departments of Defense and State, has determined should be controlled for export because the items provide at least a significant military or intelligence advantage to the United States or for foreign policy reasons are classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521. These items are typically emerging technologies (including emerging commodities, software and technology) that are not yet included in the CCL, so such items are listed on the CCL in 0Y521 ECCNs while the U.S. Government determines whether classification under a revised or new ECCN, or an EAR 99 designation, is appropriate. The list of items classified under a 0Y521 ECCN is limited to those listed in supplement no. 5 to part 774.
              (iii) Requirement to be classified under another ECCN within one calendar year of classification under ECCN 0Y521. Items classified under an ECCN 0Y521 entry must be re-classified under another ECCN within one calendar year from the date they are listed in supplement no. 5 to part 774 of the EAR. If such re-classification does not occur within that period, classification under an ECCN 0Y521 entry expires, and such items are designated as EAR99 items unless either the CCL is amended to impose a control on such items under another ECCN or the ECCN 0Y521 classification is extended. BIS may extend an item's ECCN 0Y521 classification for two one-year periods, provided that the U.S. Government has submitted a proposal to the relevant multilateral regime(s) to obtain multilateral controls over the item. Further extension beyond three years may occur only if the Under Secretary for Industry and Security makes a determination that such extension is in the national security or foreign policy interests of the United States. Any extension or re-extension of control of an ECCN 0Y521 item, including the determination by the Under Secretary, shall be published in the Federal Register.

              (8) Special RS Column 1 license requirement applicable to certain spacecraft and related items. A license is required for all destinations, including Canada, for spacecraft and related items classified under ECCN 9A515.a.1, .a.2., .a.3., .a.4., .g, and ECCN 9E515.f.
              (b) Licensing policy—(1) Licensing policy for RS Column 1 items. (i) Applications for exports and reexports of 9x515 and “600 series” items will be reviewed on a case-by-case basis to determine whether the transaction is contrary to the national security or foreign policy interests of the United States, including the foreign policy interest of promoting the observance of human rights throughout the world. Other applications for exports and reexports described in paragraph (a)(1), (2), (6), or (7) of this section will be reviewed on a case-by-case basis to determine whether the export or reexport could contribute directly or indirectly to any country's military capabilities in a manner that would alter or destabilize a region's military balance contrary to the foreign policy interests of the United States. Applications for reexports of items described in paragraph (a)(3) of this section will be reviewed applying the policies for similar commodities that are subject to the ITAR. Applications for export or reexport of items classified under any 9x515 or “600 series” ECCN requiring a license in accordance with paragraph (a)(1) or (a)(8) of this section will also be reviewed consistent with United States arms embargo policies in § 126.1 of the ITAR (22 CFR 126.1) if destined to a country set forth in Country Group D:5 in supplement no. 1 to part 740 of the EAR. Applications for export or reexport of “parts,” “components,” “accessories,” “attachments,” “software,” or “technology” “specially designed” or otherwise required for the F-14 aircraft will generally be denied. When destined to the People's Republic of China or a country listed in Country Group E:1 in supplement no. 1 to part 740 of the EAR, items classified under any 9x515 ECCN will be subject to a policy of denial.

              (ii) Applications for exports and reexports to a country listed in Country Group D:5 (in supplement no. 1 to part 740 of the EAR) of technology controlled under 6E001 for the development of focal plane arrays, read-out integrated circuits (ROICs) or image intensifier tubes described in 6A002 or technology controlled under 6E002 for the production of focal plane arrays, read-out integrated circuits (ROICs) or image intensifier tubes described in 6A002 will be reviewed with a presumption of denial.
              (2) Licensing policy for RS Column 2 items. (i) Except as described in paragraph (b)(2)(ii), applications to export and reexport commodities described in paragraph (a)(4) of this section will generally be considered favorably on a case-by-case basis unless there is evidence that the export or reexport would contribute significantly to the destabilization of the region to which the equipment is destined.
              (ii) Applications to export and reexport items controlled under ECCNs 2A984, 2D984 and 2E984 will be reviewed under a presumption of approval when exported or reexported to Austria, Cyprus, Finland, Ireland, Israel, Malta, Mexico, Singapore or Sweden, provided the items to be exported or reexported are being made to a government end-user or to a person designated by the government end-user pursuant to contract. License applications to export to a designated person must include a statement from the government end-user that the person is so designated. See supplement no. 2 to part 748, paragraph (k)(2).
              (3) For terrorist-designated countries, the applicable licensing policies are found in parts 742 and 746 of the EAR.
              (4) See § 746.3(b) of the EAR for the applicable licensing policies for items controlled for RS reasons to Iraq.
              (5) Spacecraft for launch. (i) Applications to export or reexport a “spacecraft” controlled under ECCN 9A515.a for launch in or by a country that is not a member of the North Atlantic Treaty Organization (NATO) or a major non-NATO ally of the United States (as defined in 22 CFR 120.31 and 120.32), will require a technology transfer control plan approved by the Department of Defense, an encryption technology control plan approved by the National Security Agency, and Department of Defense monitoring of all launch activities.
              (ii) Applications to export or reexport a “spacecraft” controlled under ECCN 9A515.a for launch in or by a country that is a member of the North Atlantic Treaty Organization (NATO) or a major non-NATO ally of the United States (as defined in 22 CFR 120.31 and 120.32), may require a technology transfer control plan approved by the Department of Defense, an encryption technology control plan approved by the National Security Agency, or Department of Defense monitoring of launch activities.
              (6) Remote sensing spacecraft. Applications to export or reexport a “spacecraft” described in ECCN 9A515.a.1,.a.2, a.3, or .a.4, sensitive remote sensing components described in 9A515.g, or “technology” described in ECCN 9E515.f may require a government-to-government agreement at the discretion of the U.S. Government.
              (7) For India, there is a general policy of approval for license applications to export, reexport, or transfer items, including “600 series” items, for civil or military end uses in India, for ultimate end use by the Government of India, for reexport to countries in Country Group A:5, or for return to the United States, so long as such items are not for use in nuclear, “missile,” or chemical or biological weapons activities.
              (c)(1) Contract sanctity date: March 21, 2003. This contract sanctity date applies only to items controlled under ECCNs 2A983, 2D983 and 2E983 destined for countries not listed in Country Group E (supplement 1 to part 740). See parts 742 and 746 for the contract sanctity requirements applicable to exports and reexports to countries listed in Country Group E.
              (2) Contract sanctity date: March 19, 2010. This contract sanctity date applies only to items controlled under ECCNs 2A984, 2D984 and 2E984 destined for countries not listed in Country Group E (supplement 1 to part 740). See parts 742 and 746 for the contract sanctity requirements applicable to exports and reexports to countries listed in Country Group E.
              (d) U.S. controls. Although the United States seeks cooperation from like-minded countries in maintaining regional stability controls, at this time these controls are maintained only by the United States.
              [61 FR 12786, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 742.6, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 742.7
              Crime control and detection.
              (a) License requirements. In support of U.S. foreign policy to promote the observance of human rights throughout the world, a license is required to export and reexport crime control and detection equipment, related technology and software as follows:
              (1) Crime control and detection instruments and equipment and related technology and software identified in the appropriate ECCNs on the CCL under CC Column 1 in the Country Chart column of the “License Requirements” section. A license is required to countries listed in CC Column 1 (supplement no. 1 to part 738 of the EAR). Items affected by this requirement are identified on the CCL under the following ECCNs: 0A978, 0A979, 0A984, 0A987, 0E984, 1A984, 1A985, 3A980, 3A981, 3D980, 3E980, 4A003 (for fingerprint computers only), 4A980, 4D001 (for fingerprint computers only), 4D980, 4E001 (for fingerprint computers only), 4E980, 6A002 (for police-model infrared viewers only), 6E001 (for police-model infrared viewers only), 6E002 (for police-model infrared viewers only), and 9A980.
              (2) Shotguns with a barrel length greater than or equal to 24 inches, identified in ECCN 0A984 on the CCL under CC Column 2 in the Country Chart column of the “License Requirements” section regardless of end-user to countries listed in CC Column 2 (supplement no. 1 part 738 of the EAR).
              (3) Shotguns with barrel length greater than or equal to 24 inches, identified in ECCN 0A984 on the CCL under CC Column 3 in the Country Chart column of the “License Requirements” section only if for sale or resale to police or law enforcement entities in countries listed in CC Column 3 (supplement no. 1 part 738 of the EAR).
              (4) Certain crime control items require a license to all destinations, except Canada. These items are identified under ECCNs 0A982, 0A985, and 0E982. Controls for these items appear in each ECCN; a column specific to these controls does not appear in the Country Chart (supplement no. 1 to part 738 of the EAR).
              (5) Items designed for the execution of human beings as identified in ECCN 0A981 require a license to all destinations including Canada.
              (6) See § 742.11 of the EAR for further information on items controlled under ECCN 0A983, which require a license to all destinations, including Canada.
              (b) Licensing policy. Applications for items controlled under this section will generally be considered favorably on a case-by-case basis unless there is civil disorder in the country or region or unless there is evidence that the government of the importing country may have violated internationally recognized human rights. The judicious use of export controls is intended to deter the development of a consistent pattern of human rights abuses, distance the United States from such abuses and avoid contributing to civil disorder in a country or region.
              (c) Contract sanctity. Contract sanctity date: August 22, 2000. Contract sanctity applies only to items controlled under ECCNs 0A982, 0A985 and 0E982 destined for countries not listed in CC Column 1 of the Country Chart (supplement no. 1 to part 738 of the EAR).
              (d) U.S. controls. In maintaining its controls on crime control and detection items, the United States considers international norms regarding human rights and the practices of other countries that control exports to promote the observance of human rights. However, these controls are not based on the decisions of any multinational export control regime and may differ from controls imposed by other countries.
              [65 FR 55178, Sept. 13, 2000, as amended at 75 FR 41082, July 15, 2010]

              § 742.8
              Anti-terrorism: Iran.
              (a) License requirements. (1) A license is required for anti-terrorism purposes to export or reexport to Iran any item for which AT column 1 or AT column 2 is indicated in the Country Chart column of the applicable ECCN or any item described in ECCNs 1C350, 1C355, 1C395, 2A994, 2D994 and 2E994. See paragraph (a)(5) of this section for controls maintained by the Department of the Treasury. See § 746.7 of the EAR for additional EAR license requirements that apply to Iran.
              (2) [Reserved]
              (3) The Secretary of State has designated Iran as a country whose Government has repeatedly provided support for acts of international terrorism.
              (4) In support of U.S. foreign policy applicable to terrorism-supporting countries, the EAR imposes anti-terrorism license requirements on exports and reexports to Iran pursuant to sections 6(j) and 6(a) of the Export Administration Act.
              (i) Section 6(j) anti-terrorism controls. Section 6(j) requirements apply to all exports and reexports destined to the police, military or other sensitive end-users of items listed on the Commerce Control List (supp. no. 1 to part 774 of the EAR) for which any listed reason for control in the applicable ECCN is NS (national security), CB (chemical or biological weapons proliferation), MT (missile proliferation), NP (nuclear weapons proliferation) or an Export Control Classification Number ending in “18” (military related items). BIS may not issue a license for a transaction subject to section 6(j) controls until 30 days after the notification described in Section 6(j)(2) of the Export Administration Act is delivered to the committees of Congress specified in that section. License applications for all other items controlled under section 6(a) are also reviewed to determine whether section 6(j) applies.
              (ii) Section 6(a) anti-terrorism controls. Section 6(a) requirements apply to all exports and reexports regardless of the end user of items described in paragraph (a)(1) of this section.
              (5) Exports and certain reexports to Iran are subject to a comprehensive embargo administered by the Department of the Treasury's Office of Foreign Assets Control (OFAC). If you wish to export or reexport to Iran, the Government of Iran or any entity owned or controlled by that Government, you should review part 746 of the EAR and consult with OFAC. Please note that authorization from OFAC constitutes authorization under the EAR and no separate license or authorization from BIS is required.
              (b) Licensing policy. (1) The Iran-Iraq Arms Non-Proliferation Act of October 23, 1992, requires BIS to deny licenses for items controlled to Iran for national security (section 5 of the 1979 EAA) or foreign policy reasons (section 6 of the 1979 EAA), absent contract sanctity or a Presidential waiver. License applications for which contract sanctity is established may be considered under policies in effect prior to the enactment of that Act. Otherwise, licenses for such items to Iran are subject to a general policy of denial.
              (2) License applications for items controlled under section 6(a) of the EAA will also be reviewed to determine whether requirements of section 6(j) apply. Whenever the Secretary of State determines that an export or reexport could make a significant contribution to the military potential of Iran, including its military logistics capability, or could enhance Iran's ability to support acts of international terrorism, the Secretaries of State and Commerce will notify the Congress 30 days prior to the issuance of a license.
              (c) Contract Sanctity. Section 6(f) of the Export Administration Act requires that a report be delivered to Congress before foreign policy based export controls are imposed, expanded or extended. Consistent with section 6(p) of the Export Administration Act, certain exports or reexports in fulfillment of contracts entered into before such delivery of the report applicable to a particular license requirement or licensing policy may be subject to the license requirements and licensing policy that were in force before the report was delivered. License applicants who wish to have their application considered under such pre-existing requirements or policy must include evidence of the pre-existing contract with their license applications.

              (d) U.S. controls. Although the United States seeks cooperation from like-minded countries in maintaining anti-terrorism controls, at this time these controls are maintained only by the United States.
              [61 FR 12786, Mar. 25, 1996, as amended at 63 FR 42228, Aug. 7, 1998; 64 FR 27142, May 18, 1999; 65 FR 34075, May 26, 2000; 66 FR 36682, July 12, 2001; 68 FR 16212, Apr. 3, 2003; 74 FR 2356, Jan. 15, 2009]

              § 742.9
              Anti-terrorism: Syria.
              (a) License requirements. (1) If AT Column 1 of the Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required for export and reexport to Syria for anti-terrorism purposes.
              (2) The Secretary of State has designated Syria as a country whose government has repeatedly provided support for acts of international terrorism.
              (3) In support of U.S. foreign policy against terrorism, BIS maintains two types of anti-terrorism controls on the export and reexport to Syria of items described in supplement no. 2 to part 742.
              (i) Items described in paragraphs (c)(1) through (c)(5) of supplement no. 2 to part 742, if destined to military, police, intelligence or other end-users in Syria, are controlled under section 6(j) of the Export Administration Act, as amended (EAA).
              (ii) Items listed in paragraphs (c)(1) through (c)(5) of supplement no. 2 to part 742 destined to other end-users in Syria, as well as items to all end-users listed in (c)(6) through (c)(8), (c)(10) through (c)(14), (c)(16) through (c)(19), and (c)(22) through (c)(44) of supplement no. 2 to part 742, are controlled to Syria under section 6(a) of the EAA.
              (b) Licensing policy. (1) Applications for export and reexport to all end-users in Syria of the following items will generally be denied:
              (i) Items that are controlled for chemical and biological weapons proliferation reasons to any destination. These are items that contain CB Column 1, CB Column 2, or CB Column 3 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (ii) Military-related items controlled for national security reasons to any destination. These are items that contain NS Column 1 in the Country Chart column of the “License Requirements” section in an ECCN on the CCL and are controlled by equipment or material entries ending in the number “18.”
              (iii) Items that are controlled for missile proliferation reasons to any destination. These are items that have an MT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (iv) All aircraft (powered and unpowered), helicopters, engines, and related spare parts and components, except that parts and components intended to ensure the safety of civil aviation and the safe operation of commercial passenger aircraft will be reviewed on a case-by-case basis, with a presumption of approval. These are items controlled to any destination for national security and missile technology reasons and items controlled to Syria for anti-terrorism purposes. Such items contain an NS Column 1, NS Column 2, MT Column 1, or AT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL. Note that, consistent with the general rule that applies to computing U.S. parts and components content incorporated into foreign made products, all aircraft-related items that require a license to Syria will be included as controlled U.S. content, except for ECCNs 6A998, 7A994, and 9A991.d, for purposes of such licensing requirements.
              (v) Cryptographic, cryptoanalytic, and cryptologic items controlled to any destination for national security reasons. Such items contain an AT Column 1 and an NS Column 1 or NS Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (vi) Explosives detection equipment controlled under ECCN 2A983.
              (vii) “Software” (ECCN 2D983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.

              (viii) “Technology” (ECCN 2E983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
              (ix) Commercial charges and devices controlled under ECCN 1C992.
              (x) Ammonium nitrate, including certain fertilizers containing ammonium nitrate, controlled under ECCN 1C997.
              (xi) Technology for the production of Chemical Weapons Convention (CWC) Schedule 2 and 3 chemicals controlled under ECCN 1E355.
              (xii) Concealed object detection equipment controlled under ECCN 2A984.
              (xiii) “Software” (ECCN 2D984) “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984.
              (xiv) “Technology” (ECCN 2E984) “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984, or the “development” of “software” controlled by 2D984.
              (2) Applications for export and reexport to Syria of all other items described in paragraph (a) of this section, and not described by paragraph (b)(1) of this section, will generally be denied if the export or reexport is destined to a military end-user or for military end-use. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (3) Notwithstanding the provisions of paragraphs (b)(1) and (b)(2), of this section, applications for Syria will be considered on a case-by-case basis if:
              (i) The transaction involves the reexport to Syria of items where Syria was not the intended ultimate destination at the time of original export from the United States, provided that the exports from the U.S. occurred prior to the applicable contract sanctity date (or, where the contract sanctity date is December 16, 1986, prior to June 18, 1987).
              (ii) The U.S. content of foreign-produced commodities is 20% or less by value; or
              (iii) The commodities are medical items.

                Note to paragraph (b) of this section:
                Applicants who wish any of the factors described in paragraph (b) of this section to be considered in reviewing their license applications must submit adequate documentation demonstrating the value of the U.S. content, the specifications and medical use of the equipment, or the date of export from the United States.

              (4) License applications for items reviewed under 6(a) controls will also be reviewed to determine the applicability of 6(j) controls to the transaction. When it is determined that an export or reexport could make a significant contribution to the military potential of Syria, including its military logistics capability, or could enhance Syria's ability to support acts of international terrorism, the Secretaries of State and Commerce will notify the Congress 30 days prior to issuance of a license.
              (c) Contract sanctity. Contract sanctity dates and related licensing policies for Syria are set forth in supplement no. 2 to part 742. Applicants who wish a pre-existing contract to be considered must submit sufficient documentation to establish the existence of a contract.
              (d) U.S. controls. Although the United States seeks cooperation from like-minded countries in maintaining anti-terrorism controls, at this time these controls are maintained only by the United States.
              (e) Section 746.9 (Syria) of the EAR sets forth the export and reexport controls for Syria. Section 746.9 supersedes the provisions of paragraphs (a) through (d) of this section.
              [61 FR 12786, Mar. 25, 1996, as amended at 62 FR 25459, May 9, 1997; 63 FR 42228, Aug. 7, 1998; 64 FR 27142, May 18, 1999; 64 FR 47667, Sept. 1, 1999; 64 FR 50248, Sept. 16, 1999; 66 FR 36682, July 12, 2001; 68 FR 16212, Apr. 3, 2003; 71 FR 9442, Feb. 24, 2006; 75 FR 14340, Mar. 25, 2010; 76 FR 77117, Dec. 12, 2011; 78 FR 13469, Feb. 28, 2013]

              § 742.10
              Anti-terrorism: Sudan.
              (a) License requirements. (1) If AT column 1 or AT column 2 1

                 of the Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required for export to Sudan for anti-terrorism purposes.

                  1 AT column 1 refers to items controlled to Iran, Sudan, and Syria for anti-terrorism purposes. AT column 2 refers to additional items controlled to Iran and Sudan for anti-terrorism purposes. In addition, items included in ECCNs 2A994, 2D994 and 2E994 are controlled to Iran for anti-terrorism purposes.

              (2) If AT column 1 or AT column 2 of the Commerce Country Chart (supplement no. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required for reexport to Sudan for anti-terrorism purposes, except for ECCNs 2A994, 3A992.a, 5A991.g, 5A992.c, 5D992.c, 6A991, 6A998, 7A994, 8A992.d, .e, .f, and .g, 9A990.a and .b, and 9A991.d and .e. In addition, items in these ECCNs are not counted as controlled U.S. content for the purpose of determining license requirements for U.S. parts, components or materials incorporated into foreign made products. However, the export from the United States to any destination with knowledge that they will be reexported directly or indirectly, in whole or in part to Sudan is prohibited without a license.
              (3) The Secretary of State has designated Sudan as a country whose government has repeatedly provided support for acts of international terrorism.
              (4) In support of U.S. foreign policy against terrorism, BIS maintains anti-terrorism controls on the export and reexport to Sudan of items described in supplement no. 2 to part 742.
              (i) Items described in paragraph (c)(1) through (c)(5) of supplement no. 2 to part 742 if destined to military, police, intelligence or other sensitive end-users in Sudan are controlled under section 6(j) of the Export Administration Act, as amended (EAA).
              (ii) Items listed in paragraphs (c)(1) through (c)(5) of supplement no. 2 to part 742 destined to other end-users in Sudan, as well as items to all end-users listed in (c)(6) through (c)(14) and (c)(16) through (c)(44) of supplement no. 2 to part 742 are controlled to Sudan under section 6(a) of the EAA.
              (b) Licensing policy—(1) General policy of denial. Applications for export and reexport to all end-users in Sudan of the following items will generally be denied:
              (i) Items that are controlled for chemical and biological weapons proliferation reasons to any destination. These are items that contain CB Column 1, CB Column 2, or CB Column 3 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (ii) Military-related items controlled for national security reasons to any destination. These are items that contain NS Column 1 in the Country Chart column of the “License Requirements” section in an ECCN on the CCL and are controlled by equipment or material entries ending in the number “18.”
              (iii) Items that are controlled for missile proliferation reasons to any destination. These are items that contain a MT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (iv) Except as provided in paragraph (b)(3)(ii) of this section, all aircraft (powered and unpowered), helicopters, engines and related spare parts and components. These are items controlled to any destination for national security reasons and items controlled to Sudan for anti-terrorism reasons. Such items contain an NS Column 1, NS Column 2, or AT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL. Note that, consistent with the general rule that applies to computing U.S. parts and components content incorporated in foreign made products, all aircraft-related items that require a license to Sudan will be included as controlled US content for purposes of such license requirements.
              (v) Cryptographic, cryptoanalytic, and cryptologic items controlled to any destination. These are items that contain an NS Column 1, NS Column 2, AT Column 1 or AT Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (vi) Explosives detection equipment controlled under ECCN 2A983.
              (vii) “Software” (ECCN 2D983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.

              (viii) “Technology” (ECCN 2E983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.

              (ix) Commercial charges and devices controlled under ECCN 1C992.
              (x) Technology for the production of Chemical Weapons Convention (CWC) Schedule 2 and 3 chemicals controlled under ECCN 1E355.
              (xi) Ammonium nitrate, including certain fertilizers containing ammonium nitrate, controlled under ECCN 1C997.
              (xii) Concealed object detection equipment controlled under ECCN 2A984.
              (xiii) “Software” (ECCN 2D984) “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984.
              (xiv) “Technology” (ECCN 2E984) “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984, or the “development” of “software” controlled by 2D984.
              (2) Military end-user and end-use policy. Applications for the export and reexport of all other items described in paragraph (a) of this section, and not described in paragraph (b)(1) of this section, will be denied if the export or reexport is destined to a military end-user or for military end-use. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (3) Other licensing policies. The licensing policies set forth in this paragraph apply notwithstanding the provisions of paragraphs (b)(1) and (b)(2) of this section.
              (i) Case-by-case review policy. Applications to export or reexport to Sudan will be considered on a case-by-case basis in the four situations described in paragraphs (b)(3)(i)(A) through (D) of this section.
              (A) The transaction involves the reexport to Sudan of items where Sudan was not the intended ultimate destination at the time of original export from the United States, provided that the export from the United States occurred prior to the applicable contract sanctity date.
              (B) The U.S. content of foreign-produced commodities is 20% or less by value.
              (C) The commodities are medical items.

              (D) The items are telecommunications equipment and associated computers, software and technology for civil end use, including items useful for the development of civil telecommunications network infrastructure.

                Note to paragraph (b)(3)(i).
                Applicants seeking approval of their license applications pursuant to this paragraph must include with their applications documentation demonstrating how their proposed transaction is consistent with one or more of the four situations described in this paragraph.

              (ii) General policy of approval. Applications to export or reexport to Sudan the following for civil uses by non-sensitive end-users within Sudan will be reviewed with a general policy of approval.
              (A) Parts, components, materials, equipment, and technology that are controlled on the Commerce Control List (supp. no. 1 to part 774 of the EAR) only for anti-terrorism reasons that are intended to ensure the safety of civil aviation or the safe operation of fixed-wing commercial passenger aircraft.

              (B) Items controlled on the Commerce Control List (supp. no. 1 to part 774 of the EAR) only for anti-terrorism reasons that will be used to inspect, design, construct, operate, improve, maintain, repair, overhaul or refurbish railroads in Sudan.

                Note to paragraph (b)(3)(ii).
                Applications will generally be denied for exports or reexports that would substantially benefit a sensitive end user. Sensitive end users include Sudan's military, police, and intelligence services and persons that are owned by or are part of or operated or controlled by those services.

              (4) License applications for items reviewed under 6(a) controls will also be reviewed to determine the applicability of 6(j) controls to the transaction. When it is determined that an export or reexport could make a significant contribution to the military potential of Sudan, including its military logistics capability, or could enhance Sudan's ability to support acts of international terrorism, the appropriate committees of the Congress will be notified 30 days before issuance of a license to export or reexport such items.

              (c) Contract sanctity. Contract sanctity dates and related licensing information for Sudan are set forth in supplement no. 2 to part 742. Applicants who wish a pre-existing contract to be considered must submit sufficient documentation to establish the existence of a contract.
              (d) U.S. controls. Although the United States seeks cooperation from like-minded countries in maintaining anti-terrorism controls, at this time these controls are maintained only by the United States.
              [61 FR 12786, Mar. 25, 1996, as amended at 63 FR 42228, Aug. 7, 1998; 64 FR 27142, May 18, 1999; 64 FR 47667, Sept. 1, 1999; 65 FR 14859, Mar. 20, 2000; 65 FR 34075, May 26, 2000; 66 FR 36682, July 12, 2001; 68 FR 16212, Apr. 3, 2003; 75 FR 14340, Mar. 25, 2010; 78 FR 13469, Feb. 28, 2013; 80 FR 8523, Feb. 18, 2015; 81 FR 64673, Sept. 20, 2016; 82 FR 4783, Jan. 17, 2017]

              § 742.11
              Specially designed implements of torture, including thumbscrews, thumbcuffs, fingercuffs, spiked batons, and parts and accessories, n.e.s.
              (a) License Requirements. In support of U.S. foreign policy to promote the observance of human rights throughout the world, a license is required to export any commodity controlled by ECCN 0A983 to all destinations including Canada.
              (b) Licensing policy. Applications for such licenses will generally be denied to all destinations.
              (c) Contract sanctity. The contract sanctity date is November 9, 1995. Contract sanctity will be a factor in considering only applications for export to the NATO countries, Japan, Australia, and New Zealand.
              (d) U.S. controls. In maintaining its controls on specially designed instruments of torture the United States considers international norms regarding human rights and the practices of other countries that control exports to promote the observance of human rights. However, these controls are not based on the decisions of any multinational export control regime and may differ from controls imposed by other countries.
              [61 FR 12786, Mar. 25, 1996, as amended at 72 FR 9849, Mar. 6, 2007; 75 FR 41082, July 15, 2010]

              § 742.12
              [Reserved]

              § 742.13
              Communications intercepting devices; software and technology for communications intercepting devices.
              (a) License requirement. (1) In support of U.S. foreign policy to prohibit the export of items that may be used for the surreptitious interception of wire, oral, or electronic communications, a license is required for all destinations, including Canada, for ECCNs having an “SL” under the “Reason for Control” paragraph. These items include any electronic, mechanical, or other device primarily useful for the surreptitious interception of wire, oral, or electronic communications (ECCNs 5A001.f.1 and 5A980); and for related “software” primarily useful for the surreptitious interception of wire, oral, or electronic communications (ECCN 5D001.c and 5D980.a); and “software” primarily useful for the “development”, “production”, or “use” of devices controlled under ECCNs 5A001.f.1 and 5A980 (ECCNs 5D001.a and 5D980.b); and for “technology” primarily useful for the “development”, “production”, or “use” of items controlled by ECCNs 5A001.f.1, 5D001.a (for 5A001.f.1), 5A980 and 5D980 (ECCNs 5E001.a and 5E980); and for “software” primarily useful to support such ECCN 5E001.a “development”, “production”, or “use” “technology” for 5A001.f.1 equipment and certain 5D001.a “software” (ECCN 5D001.b). These licensing requirements do not supersede the requirements contained in the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. 2512). This license requirement is not reflected on the Commerce Country Chart (supplement no. 1 to part 738 of the EAR).

              (2) “Communications intercepting devices” are electronic, mechanical, or other devices that can be used for interception of wire, oral, or electronic communications if their design renders them primarily useful for surreptitious listening even though they may also have innocent uses. A device is not restricted merely because it is small or may be adapted to wiretapping or eavesdropping. Some examples of devices to which these restrictions apply are: the martini olive transmitter; the infinity transmitter; the spike mike; and the disguised microphone appearing as a wristwatch, cufflink, or cigarette pack; etc. The restrictions do not apply to devices such as the parabolic microphone or other directional microphones ordinarily used by broadcasters at sports events, since these devices are not primarily useful for surreptitious listening.
              (b) Licensing policy. (1) License applications, except for those applications for which a license is required for both SL and AT reasons, will generally be approved for exports or reexports requiring a license for SL reasons when the exporter or reexporter is:
              (i) A provider of wire or electronic communication services or an officer, agent, or employee of, or person under contract with such a provider, in the normal course of the business of providing that wire or electronic communication service; or

              (ii) An officer, agent, or employee of, or a person under contract with, the United States, one of the 50 States, or a political subdivision thereof, when engaged in the normal course of government activities.

                Note to paragraph (b)(1):
                For SL reasons, license applications will generally be denied to countries that are subject to controls for AT reasons.

                Note to paragraph (b)(1)(i):
                The normal course of the business of providing a wire or electronic communications service includes any activity which is a necessary incident to the rendition of the service or to the protection of the rights and property of the provider of that service.

              (2) Other license applications will generally be denied for exports or reexports requiring a license for SL reasons.
              (c) Contract sanctity. Contract sanctity provisions are not available for license applications involving exports and reexports of communications interception devices.
              (d) U.S. controls. Controls on items classified under ECCNs 5A980, 5D980, and 5E980 are maintained by the United States government for foreign policy purposes.
              [61 FR 12786, Mar. 25, 1996, as amended at 71 FR 67036, Nov. 20, 2006; 77 FR 39368, July 2, 2012; 78 FR 37382, June 20, 2013]

              § 742.14
              Significant items: hot section technology for the development, production or overhaul of commercial aircraft engines, components, and systems.
              (a) License requirement. Licenses are required for all destinations, except Canada, for ECCNs having an “SI” under the “Reason for Control” paragraph. These items include hot section technology for the development, production or overhaul of commercial aircraft engines controlled under ECCN 9E003.a.1 through a.8, .h,.i and .j, and related controls.
              (b) Licensing policy. Pursuant to section 6 of the Export Administration Act of 1979, as amended, foreign policy controls apply to technology required for the development, production or overhaul of commercial aircraft engines controlled by ECCN 9E003a.1 through a.8, .h,.i, and .j, and related controls. These controls supplement the national security controls that apply to these items. Applications for export and reexport to all destinations will be reviewed on a case-by-case basis to determine whether the export or reexport is consistent with U.S. national security and foreign policy interests. The following factors are among those that will be considered to determine what action will be taken on license applications:
              (1) The country of destination;
              (2) The ultimate end-user(s);
              (3) The technology involved;
              (4) The specific nature of the end-use(s); and
              (5) The types of assurance against unauthorized use or diversion that are given in a particular case.
              (c) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this § 742.14.
              (d) [Reserved]
              [64 FR 13339, Mar. 18, 1999, as amended at 75 FR 36515, June 28, 2010; 75 FR 54276, Sept. 7, 2010; 76 FR 29619, May 20, 2011]

              § 742.15
              Encryption items.

              Encryption items can be used to maintain the secrecy of information, and thereby may be used by persons abroad to harm U.S. national security, foreign policy and law enforcement interests. The United States has a critical interest in ensuring that important and sensitive information of the public and private sector is protected. Consistent with our international obligations as a member of the Wassenaar Arrangement, the United States has a responsibility to maintain control over the export and reexport of encryption items. As the President indicated in Executive Order 13026 and in his Memorandum of November 15, 1996, exports and reexports of encryption software, like exports and reexports of encryption hardware, are controlled because of this functional capacity to encrypt information, and not because of any informational or theoretical value that such software may reflect, contain, or represent, or that its export or reexport may convey to others abroad. For this reason, export controls on encryption software are distinguished from controls on other software regulated under the EAR.
              (a) Licensing requirements and policy—(1) Licensing requirements. A license is required to export or reexport encryption items (“EI”) classified under ECCN 5A002, 5A004, 5D002.a, .c.1 or .d (for equipment and “software” in ECCNs 5A002 or 5A004, 5D002.c.1); or 5E002 for “technology” for the “development,” “production,” or “use” of commodities or “software” controlled for EI reasons in ECCNs 5A002, 5A004 or 5D002, and “technology” classified under 5E002.b to all destinations, except Canada. Refer to part 740 of the EAR, for license exceptions that apply to certain encryption items, and to § 772.1 of the EAR for definitions of encryption items and terms. Most encryption items may be exported under the provisions of License Exception ENC set forth in § 740.17 of the EAR. Following classification or self-classification, items that meet the criteria of Note 3 to Category 5—Part 2 of the Commerce Control List (the “mass market” note), are classified ECCN 5A992.c or 5D992.c and are no longer subject to this Section (see § 740.17 of the EAR). Before submitting a license application, please review License Exception ENC to determine whether this license exception is available for your item or transaction. For exports, reexports, or transfers (in-country) of encryption items that are not eligible for a license exception, you must submit an application to obtain authorization under a license or an Encryption Licensing Arrangement.
              (2) Licensing policy. Applications will be reviewed on a case-by-case basis by BIS, in conjunction with other agencies, to determine whether the export, reexport, or transfer (in-country) is consistent with U.S. national security and foreign policy interests. Encryption Licensing Arrangements (ELAs) may be authorized for exports, reexports, or transfers (in-country) of unlimited quantities of encryption commodities and software described in § 740.17 (b)(2)(i)(A) that have been classified by BIS to “more sensitive government end users,” in all destinations, except countries listed in Country Groups E:1 or E:2 of supplement no. 1 to part 740. ELAs for “more sensitive government end users” may be authorized for encryption commodities and software described in § 740.17(b)(2)(ii) through (iv) under certain circumstances. ELAs are valid for four years and may require pre-shipment notification. Applicants seeking authorization for Encryption Licensing Arrangements must specify the sales territory on their license applications.
              (b) Publicly available encryption source code—(1) Scope and eligibility. Subject to the notification requirements of paragraph (b)(2) of this section, publicly available (see § 734.3(b)(3) of the EAR) encryption source code classified under ECCN 5D002 is not subject to the EAR. Such source code is publicly available even if it is subject to an express agreement for the payment of a licensing fee or royalty for commercial production or sale of any product developed using the source code.
              (2) Notification requirement. You must notify BIS and the ENC Encryption Request Coordinator via email of the Internet location (e.g., URL or Internet address) of the publicly available encryption source code classified under ECCN 5D002 or provide each of them a copy of the publicly available encryption source code. If you update or modify the source code, you must also provide additional copies to each of them each time the cryptographic functionality of the source code is updated or modified. In addition, if you posted the source code on the Internet, you must notify BIS and the ENC Encryption Request Coordinator each time the Internet location is changed, but you are not required to notify them of updates or modifications made to the encryption source code at the previously notified location. In all instances, submit the notification or copy to crypt@bis.doc.gov and to enc@nsa.gov.

              [73 FR 57507, Oct. 3, 2008, as amended at 75 FR 36494, June 25, 2010; 75 FR 43821, July 27, 2010; 76 FR 1063, Jan. 7, 2011; 76 FR 29619, May 20, 2011; 78 FR 13469, Feb. 28, 2013; 78 FR 37383, June 20, 2013; 81 FR 64673, Sept. 20, 2016]

              § 742.16
              [Reserved]

              § 742.17
              Exports of firearms to OAS member countries.
              (a) License requirements. BIS maintains a licensing system for the export of shotguns and related items to all OAS member countries. This action is based on the Organization of American States (OAS) Model Regulations for the Control of the International Movement of Firearms, their Parts and Components and Munitions (OAS Model Regulations) which were developed to assist OAS member countries to implement the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (Firearms Convention). 2
                 Items subject to these controls are identified by “FC Column 1” in the “License Requirements” section of their Export Control Classification Number (ECCN) on the Commerce Control List (CCL). If “FC Column 1” of the Commerce Country Chart (supplement no. 1 to part 738 of the EAR) is indicated for a particular country, a license is required for export to that destination. Licenses will generally be issued on a Firearms Convention (FC) Import Certificate or equivalent official document, satisfactory to BIS, issued by the government of the importing OAS member country.

                  2 Status of Convention as of April 13, 1999 had not entered into force.

              (b) Licensing policy. Applications supported by an FC Import Certificate or equivalent official document issued by the government of the importing country for such items will generally be approved, except there is a policy of denial for applications to export items linked to such activities as drug trafficking, terrorism, and transnational organized crime.
              (c) Contract sanctity. Contract sanctity provisions are not available for license applications under this § 742.17.
              (d) OAS Model Regulations. The OAS Model Regulations on which regulations are based are designed by OAS member countries to combat illicit manufacturing of and trafficking in firearms, ammunition, explosives, and other related materials in North and South America because of their links to such activities as drug trafficking, terrorism, and transnational organized crime.
              (e) OAS member countries to which firearms controls under this section apply. The OAS member countries include: Antigua and Barbuda, Argentina, the Bahamas, Barbados, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, St. Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, the United States, Uruguay, and Venezuela.
              (f) Items/Commodities. Items requiring a license under this section are ECCNs 0A984 (shotguns with a barrel length 18 inches or over and related parts, and buckshot shotgun shells), 0A986 (shotgun shells, and related parts) and 0A987 (optical sighting devices). (See supplement no. 1 to part 774 of the EAR.)
              (g) Validity period for licenses. Although licenses generally will be valid for a period of four years, your ability to ship items that require an FC Import Certificate or equivalent official document under this section may be affected by the validity of the FC Import Certificate or equivalent official document (see § 748.12(d)(4) of the EAR).
              [64 FR 17973, Apr. 13, 1999, as amended at 78 FR 13469, Feb. 28, 2013; 80 FR 13217, Mar. 13, 2015]

              § 742.18
              Chemical Weapons Convention (CWC or Convention).

              States that are parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention), undertake never to develop, produce, acquire, stockpile, transfer, or use chemical weapons. As a State Party to the Convention, the United States is subjecting certain toxic chemicals and their precursors listed in Schedules within the Convention to trade restrictions. Trade restrictions include: a prohibition on the export of Schedule 1 chemicals to States not Party to the CWC; a prohibition on the reexport of Schedule 1 chemicals to all destinations (both States Parties to the CWC and States not Party to the CWC); license requirements for the export of Schedule 1 chemicals to all States Parties; a prohibition on the export of Schedule 2 chemicals to States not Party to the CWC; and an End-Use Certificate requirement for exports of Schedule 3 chemicals to States not Party to the CWC. Exports of CWC chemicals that do not require a license for CW reasons (e.g., exports and reexports of Schedule 2 and Schedule 3 chemicals to States Parties to the CWC) may require a license for other reasons set forth in the EAR. (See, in particular, the license requirements in § 742.2 of the EAR that apply to exports and reexports of precursor chemicals controlled by ECCN 1C350, for CB reasons. Also note the end-use and end-user restrictions in part 744 of the EAR and the restrictions that apply to embargoed countries in part 746 of the EAR.)
              (a) License requirements (1) Schedule 1 chemicals and mixtures controlled under ECCN 1C351. A license is required for CW reasons to export or reexport Schedule 1 chemicals controlled under ECCN 1C351.d.11 or d.12 to all destinations including Canada. CW applies to 1C351.d.11 for ricin in the form of Ricinus Communis AgglutininII (RCAII), which is also known as ricin D or Ricinus Communis LectinIII (RCLIII), and Ricinus Communis LectinIV (RCLIV), which is also known as ricin E. CW applies to 1C351.d.12 for saxitoxin identified by C.A.S. #35523-89-8. (Note that the advance notification procedures and annual reporting requirements described in § 745.1 of the EAR also apply to exports of Schedule 1 chemicals.)
              (2) Schedule 2 and 3 chemicals and mixtures controlled under ECCN 1C350, ECCN 1C355, or ECCN 1C395—(i) States Parties to the CWC. Neither a license nor an End-Use Certificate is required for CW reasons to export or reexport Schedule 2 or 3 chemicals and mixtures controlled under ECCN 1C350, ECCN 1C355, or ECCN 1C395 to States Parties to the CWC (destinations listed in supplement no. 2 to part 745 of the EAR).
              (ii) States not Party to the CWC—(A) Schedule 2 chemicals. A license is required for CW reasons to export or reexport Schedule 2 chemicals and mixtures controlled under ECCN 1C350.b, ECCN 1C355.a, or ECCN 1C395 to States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR).
              (B) Schedule 3 chemicals—(1) Exports. A license is required for CW reasons to export Schedule 3 chemicals and mixtures controlled under ECCN 1C350.c, ECCN 1C355.b, or ECCN 1C395.b to States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR), unless the exporter obtains from the consignee an End-Use Certificate (issued by the government of the importing country) prior to exporting the Schedule 3 chemicals and submits it to BIS in accordance with the procedures described in § 745.2 of the EAR. Note, however, that obtaining an End-Use Certificate does not relieve the exporter from the responsibility of complying with other license requirements set forth elsewhere in the EAR.
              (2) Reexports—(i) Reexports from States Parties to the CWC. Neither a license nor an End-Use Certificate is required for CW reasons to reexport Schedule 3 chemicals and mixtures controlled under ECCN 1C350.c, ECCN 1C355.b, or ECCN 1C395.b from States Parties to the CWC (destinations listed in supplement no. 2 to part 745 of the EAR) to States not Party to the CWC. However, a license may be required for other reasons set forth elsewhere in the EAR. In addition, reexports of Schedule 3 chemicals may be subject to an End-Use Certificate requirement by governments of other countries when the chemicals are destined for States not Party to the CWC.
              (ii) Reexports from States not Party to the CWC. A license is required for CW reasons to reexport Schedule 3 chemicals and mixtures controlled under ECCN 1C350.c, ECCN 1C355.b, or ECCN 1C395.b from a State not Party to the CWC (a destination not listed in supplement no. 2 to part 745 of the EAR) to any other State not Party to the CWC.
              (C) Technology controlled under ECCN 1E355. A license is required for CW reasons to export or reexport technology controlled under ECCN 1E355 to all States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR), except for Israel and Taiwan.
              (b) Licensing Policy—(1) Schedule 1 chemicals and mixtures—(i) Exports to States Parties to the CWC. Applications to export Schedule 1 Chemicals controlled under ECCN 1C351.d.11 or .d.12 to States Parties to the CWC (destinations listed in supplement no. 2 to part 745 of the EAR) generally will be denied, unless all of the following conditions are met:

              (A) The chemicals are destined only for purposes not prohibited under the CWC (i.e., research, medical, pharmaceutical, or protective purposes);
              (B) The types and quantities of chemicals are strictly limited to those that can be justified for those purposes;

              (C) The Schedule 1 chemicals were not previously imported into the United States (this does not apply to Schedule 1 chemicals imported into the United States prior to April 29, 1997, or imported into the United States directly from the same State Party to which they now are to be returned, i.e., exported); and

              (D) The aggregate amount of Schedule 1 chemicals in the country of destination at any given time is equal to or less than one metric ton and receipt of the proposed export will not cause the country of destination to acquire or to have acquired one metric ton or more of Schedule 1 chemicals in any calendar year.
              (ii) Exports to States not party to the CWC. Applications to export Schedule 1 chemicals controlled under ECCN 1C351.d.11 or .d.12 to States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR) generally will be denied, consistent with U.S. obligations under the CWC to prohibit exports of these chemicals to States not Party to the CWC.
              (iii) Reexports. Applications to reexport Schedule 1 chemicals controlled under ECCN 1C351.d.11 or .d.12 generally will be denied to all destinations (including both States Parties to the CWC and States not Party to the CWC).
              (2) Schedule 2 chemicals and mixtures. Applications to export or reexport Schedule 2 chemicals and mixtures controlled under ECCN 1C350.b, ECCN 1C355.a, or ECCN 1C395 to States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR) generally will be denied, consistent with U.S. obligations under the CWC to prohibit exports of these chemicals to States not Party to the CWC.
              (3) Schedule 3 chemicals and mixtures—(i) Exports. Applications to export Schedule 3 chemicals and mixtures controlled under ECCN 1C350.c, ECCN 1C355.b, or ECCN 1C395.b to States not Party to the CWC (destinations not listed in supplement no. 2 to part 745 of the EAR) generally will be denied.
              (ii) Reexports from States not Party to the CWC. Applications to reexport Schedule 3 chemicals and mixtures controlled under ECCN 1C350.c, ECCN 1C355.b, or ECCN 1C395.b from a State not Party to the CWC (a destination not listed in supplement no. 2 to part 745 of the EAR) to any other State not Party to the CWC generally will be denied.
              (4) Technology controlled under ECCN 1E355. Exports and reexports of technology controlled under ECCN 1E355 will be reviewed on a case-by-case basis.
              (c) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.
              [67 FR 37982, May 31, 2002, as amended at 69 FR 42865, July 19, 2004; 76 FR 56101, >Sept. 12, 2011]

              § 742.19
              Anti-terrorism: North Korea.
              (a) License requirements. (1) All items on the Commerce Control List (CCL) (i.e., with a designation other than EAR99) that are controlled for anti-terrorism reasons require a license for export or reexport to North Korea. This includes all items on the CCL containing AT column 1 or AT column 2 in the Country Chart column of the License requirements section of an ECCN; and ECCNs 0A986, 0A988, 0A999, 0B986, 0B999, 0D999, 1A999, 1B999, 1C995, 1C999, 1D999, 2A994, 2A999, 2B999, 2D994, 2E994, 3A999, and 6A999. See also part 746 of the EAR.
              (2) The Secretary of State has designated North Korea as a country whose Government has repeatedly provided support for acts of international terrorism.
              (3) In support of U.S. foreign policy on terrorism-supporting countries, BIS maintains two types of anti-terrorism controls on the export and reexport of items described in supplement 2 to part 742.
              (i) Items described in paragraphs (c)(1) through (c)(5) of supplement so. 2 to part 742 are controlled under section 6(j) of the Export Administration Act, as amended (EAA), if destined to military, police, intelligence or other sensitive end-users.
              (ii) Items described in paragraphs (c)(1) through (c)(5) of supplement no. 2 to part 742 destined to non-sensitive end-users, as well as items described in paragraph (c)(6) through (c)(45) to all end-users, are controlled to North Korea under section 6(a) of the EAA. License applications for items reviewed under section 6(a) controls will also be reviewed to determine the applicability of section 6(j) controls to the transaction. When it is determined that an export or reexport could make a significant contribution to the military potential of North Korea, including its military logistics capability, or could enhance North Korea's ability to support acts of international terrorism, the Secretaries of State and Commerce will notify the Congress 30 days prior to issuance of a license. (See supplement no. 2 to part 742 for more information on items controlled under sections 6(a) and 6(j) of the EAA and § 750.6 of the EAR for procedures for processing license applications for items controlled under EAA section 6(j).)
              (b) Licensing policy. (1) Applications for export and reexport to all end-users in North Korea of the following items will generally be denied:
              (i) Items controlled for chemical and biological weapons proliferation reasons to any destination. These items contain CB Column 1, CB Column 2, or CB Column 3 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (ii) Items controlled for missile proliferation reasons to any destination. These items have an MT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (iii) Items controlled for nuclear weapons proliferation reasons to any destination. These items contain NP Column 1 or NP Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (iv) Items controlled for national security reasons to any destination. These items contain NS Column 1 or NS Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.

              (v) Military-related items controlled for national security reasons to any destination. These items contain NS Column 1 in the Country Chart column of the “License Requirements” section in an ECCN on the CCL and are controlled by equipment or material entries ending in the number “18.”
              (vi) All aircraft (powered and unpowered), helicopters, engines, and related spare parts and components. Such items contain an NS Column 1, NS Column 2, MT Column 1, or AT Column 1 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL. (Not including parts and components for safety-of-flight, which will be reviewed on a case-by-case basis in accordance with paragraph (b)(2) of this section).

              (vii) Cryptographic, cryptoanalytic, and crypto-logic items controlled any destination. These are items that contain an NS Column 1, NS Column 2, AT Column 1 or AT Column 2 in the Country Chart column of the “License Requirements” section of an ECCN on the CCL.
              (viii) Submersible systems controlled under ECCN 8A992.
              (ix) Scuba gear and related equipment controlled under ECCN 8A992.
              (x) Pressurized aircraft breathing equipment controlled under ECCN 9A991.
              (xi) Explosives detection equipment controlled under ECCN 2A983.
              (xii) “Software” (ECCN 2D983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
              (xiii) “Technology” (ECCN 2E983) specially designed or modified for the “development”, “production” or “use” of explosives detection equipment controlled by 2A983.
              (xiv) Commercial charges and devices controlled under ECCN 1C992.
              (xv) Computer numerically controlled machine tools controlled under ECCN 2B991.
              (xvi) Aircraft skin and spar milling machines controlled under ECCN 2B991.
              (xvii) Semiconductor manufacturing equipment controlled under ECCN 3B991.
              (xviii) Digital computers with an Adjusted Peak Performance (APP) exceeding 0.0004 Weighted TeraFLOPS (WT).
              (xix) Microprocessors with a processing speed of 0.5 GFLOPS or above .
              (xx) Ammonium nitrate, including certain fertilizers containing ammonium nitrate, controlled under ECCN 1C997.
              (xxi) Technology for the production of Chemical Weapons Convention (CWC) Schedule 2 and 3 Chemicals controlled under ECCN 1E355.
              (xxii) Concealed object detection equipment controlled under ECCN 2A984.
              (xxiii) “Software” (ECCN 2D984) “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984.
              (xxiv) “Technology” (ECCN 2E984) “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984, or the “development” of “software” controlled by 2D984.
              (2) Applications for export and reexport to North Korea of all other items described in paragraph (a) of this section, and not described by paragraph (b)(1) of this section, will generally be denied if the export or reexport is destined to a military end-user or for military end-use. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis. Applications to export or reexport humanitarian items intended for the benefit of the North Korean people; items in support of United Nations humanitarian efforts; and agricultural commodities and medical devices will generally be approved.
              (3) Applications for export and reexport to North Korea of items described in paragraphs (c)(12), (c)(24), (c)(34), (c)(37), (c)(38), and (c)(45) of supplement no. 2 to part 742 will generally be denied if the export or reexport is destined to nuclear end-users or nuclear end-uses. Applications for non-nuclear end-users or for non-nuclear end-uses, excluding items described in (c)(24)(iv)(A) of supplement no. 2 to part 742, will be considered on a case-by-case basis.
              (4) License applications for items reviewed under section 6(a) controls will also be reviewed to determine the applicability of section 6(j) controls to the transaction. When it is determined that an export or reexport could make a significant contribution to the military potential of North Korea, including its military logistics capability, or could enhance North Korea's ability to support acts of international terrorism, the Secretaries of State and Commerce will notify the Congress 30 days prior to issuance of a license.
              [65 FR 38151, June 19, 2000, as amended at 66 FR 36682, July 12, 2001; 68 FR 16212, Apr. 3, 2003; 70 FR 54628, Sept. 16, 2005; 71 FR 20885, Apr. 24, 2006; 72 FR 3725, Jan. 26, 2007; 72 FR 62532, Nov. 5, 2007; 75 FR 14340, Mar. 25, 2010]

              Pt. 742, Supp. No. 1
              Supplement No. 1 to Part 742—Nonproliferation of Chemical and Biological Weapons

                Note:

                Exports and reexports of items in performance of contracts entered into before the applicable contract sanctity date(s) will be eligible for review on a case-by-case basis or other applicable licensing policies that were in effect prior to the contract sanctity date. The contract sanctity dates set forth in this supplement are for the guidance of exporters. Contract sanctity dates are established in the course of the imposition of foreign policy controls on specific items and are the relevant dates for the purpose of licensing determinations involving such items. If you believe that a specific contract sanctity date is applicable to your transaction, you should include all relevant information with your license application.

              (1) The contract sanctity date for exports to Iran or Syria of dimethyl methylphosphonate, phosphorous oxychloride, thiodiglycol, dimethylamine hydrochloride, dimethylamine, ethylene chlorohydrin (2-chloroethanol), and potassium fluoride is April 28, 1986.
              (2) The contract sanctity date for exports to Iran or Syria of dimethyl phosphite (dimethyl hydrogen phosphite), methyl phosphonyldichloride, 3-quinuclidinol, N,N-diisopropylamino-ethane-2-thiol, N,N-diisopropylaminoethyl-2-chloride, 3-hydroxy-1-methylpiperidine, trimethyl phosphite, phosphorous trichloride, and thionyl chloride is July 6, 1987.
              (3) The contract sanctity date for exports to Iran or Syria of items in ECCNs 1C351, 1C353 and 1C354 is February 22, 1989.
              (4) The contract sanctity date for exports to Iran of dimethyl methylphosphonate, phosphorus oxychloride, and thiodiglycol is February 22, 1989.
              (5) The contract sanctity date for exports to Iran or Syria of potassium hydrogen fluoride, ammonium hydrogen fluoride, sodium fluoride, sodium bifluoride, phosphorus pentasulfide, sodium cyanide, triethanolamine, diisopropylamine, sodium sulfide, and N,N-diethylethanolamine is December 12, 1989.
              (6) The contract sanctity date for exports to all destinations (except Iran or Syria) of phosphorus trichloride, trimethyl phosphite, and thionyl chloride is December 12, 1989. For exports to Iran or Syria, paragraph (2) of this supplement applies.
              (7) The contract sanctity date for exports to all destinations (except Iran or Syria) of 2-chloroethanol and triethanolamine is January 15, 1991. For exports of 2-chloroethanol to Iran or Syria, paragraph (1) of this Supplement applies. For exports of triethanolamine to Iran or Syria, paragraph (5) of this Supplement applies.
              (8) The contract sanctity date for exports to all destinations (except Iran or Syria) of chemicals controlled by ECCN 1C350 is March 7, 1991, except for applications to export the following chemicals: 2-chloroethanol, dimethyl methylphosphonate, dimethyl phosphite (dimethyl hydrogen phosphite), phosphorus oxychloride, phosphorous trichloride, thiodiglycol, thionyl chloride triethanolamine, and trimethyl phosphite. (See also paragraphs (6) and (7) of this Supplement.) For exports to Iran or Syria, see paragraphs (1) through (6) of this Supplement.
              (9) The contract sanctity date for exports and reexports of the following commodities and technical data is March 7, 1991:
              (i) Equipment (for producing chemical weapon precursors and chemical warfare agents) described in ECCNs 2B350 and 2B351;
              (ii) Equipment and materials (for producing biological agents) described in ECCNs 1C351, 1C353, 1C354, and 2B352; and
              (iii) Technology (for the development, production, and use of equipment described in ECCNs 1C351, 1C353, 1C354, 2B350, 2B351, and 2B352) described in ECCNs 2E001, 2E002, and 2E301.
              (10) The contract sanctity date for license applications subject to § 742.2(b)(3) of this part is March 7, 1991.
              (11) The contract sanctity date for reexports of chemicals controlled under ECCN 1C350 is March 7, 1991, except that the contract sanctity date for reexports of these chemicals to Iran or Syria is December 12, 1989.
              (12) The contract sanctity date for reexports of human pathogens, zoonoses, toxins, animal pathogens, genetically modified microorganisms and plant pathogens controlled by ECCNs 1C351, 1C353 and 1C354 is March 7, 1991.
              [61 FR 12786, Mar. 25, 1996, as amended at 62 FR 25459, May 9, 1997; 69 FR 42865, July 19, 2004; 71 FR 51718, Aug. 31, 2006; 80 FR 34271, June 16, 2015]

              Pt. 742, Supp. No. 2
              Supplement No. 2 to Part 742—Anti-Terrorism Controls: North Korea, Syria and Sudan Contract Sanctity Dates and Related Policies

                Note:
                Exports and reexports of items in performance of contracts entered into before the applicable contract sanctity date(s) will be eligible for review on a case-by-case basis or other applicable licensing policies that were in effect prior to the contract sanctity date. The contract sanctity dates set forth in this Supplement are for the guidance of exporters. Contract sanctity dates are established in the course of the imposition of foreign policy controls on specific items and are the relevant dates for the purpose of licensing determinations involving such items. If you believe that a specific contract sanctity date is applicable to your transaction, you should include all relevant information with your license application. BIS will determine any applicable contract sanctity date at the time an application with relevant supporting documents is submitted.

              (a) Terrorist-supporting countries. The Secretary of State has designated North Korea, Sudan and Syria as countries whose governments have repeatedly provided support for acts of international terrorism under section 6(j) of the Export Administration Act (EAA).
              (b) Items controlled under EAA sections 6(j) and 6(a). Whenever the Secretary of State determines that an export or reexport to any of these countries could make a significant contribution to the military potential of such country, including its military logistics capability, or could enhance the ability of such country to support acts of international terrorism, the item is subject to mandatory control under EAA section 6(j) and the Secretaries of Commerce and State are required to notify appropriate Committees of the Congress 30 days before a license for such an item may be issued.
              (1) On December 28, 1993, the Secretary of State determined that the export to North Korea, Sudan, or Syria of items described in paragraphs (c)(1) through (c)(5) of this Supplement, if destined to military, police, intelligence or other sensitive end-users, are controlled under EAA section 6(j). Therefore, the 30-day advance Congressional notification requirement applies to the export or reexport of these items to sensitive end-users in any of these countries.
              (2) License applications for items controlled to designated terrorist-supporting countries under EAA section 6(a) will also be reviewed to determine whether the Congressional notification requirements of EAA section 6(j) apply.
              (3) Items controlled for anti-terrorism reasons under section 6(a) to North Korea, Sudan and Syria are:
              (i) Items described in paragraphs (c)(1) through (c)(5) to non-sensitive end-users, and
              (ii) The following items to all end-users: for North Korea, items in paragraph (c)(6) through (c)(45) of this Supplement; for Sudan, items in paragraphs (c)(6) through (c)(14) and (c)(16) through (c)(44) of this Supplement; and for Syria, items in paragraphs (c)(6) through (c)(8), (c)(10) through (c)(14), (c)(16) through (c)(19), and (c)(22) through (c)(44) of this Supplement.
              (c) The license requirements and licensing policies for items controlled for anti-terrorism reasons to Syria, Sudan, and North Korea are generally described in §§ 742.9, 742.10, and 742.19 of this part, respectively. This Supplement provides guidance on licensing policies for North Korea, Syria, and Sudan and related contract sanctity dates that may be available for transactions benefiting from pre-existing contracts involving Syria, and Sudan.
              (1) All items subject to national security controls.

              (i) [Reserved]
              (ii) Syria. Applications for military end-users or military end-uses in Syria will generally be denied. Applications for non-military end-users or end-uses will be considered on a case-by-case basis, unless otherwise specified in paragraphs (c)(2) through (c)(42) of this Supplement. No contract sanctity date is available for items valued at $7 million or more to military end-users or end-uses. The contract sanctity date for all other items for all end-users: December 16, 1986.
              (iii) Sudan. Applications for military end-users or military end-uses in Sudan will generally be denied. Applications for non-military end-users or end-uses will be considered on a case-by-case basis unless otherwise specified in paragraphs (c)(2) through (c)(42) of this Supplement. Contract sanctity date: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (2) All items subject to chemical and biological weapons proliferation controls. Applications for all end-users in North Korea, Syria, or Sudan of these items will generally be denied. See supplement no. 1 to part 742 for contract sanctity dates for Syria. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993), or unless an earlier date for any item is listed in Supplement 1 to part 742.
              (3) All items subject to missile proliferation controls (MTCR). Applications for all end-users in North Korea, Syria, or Sudan will generally be denied. Contract sanctity provisions for Syria are not available. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (4) All items subject to nuclear weapons proliferation controls (NRL).  (i) [Reserved]
              (ii) Syria. Applications for military end-users or end-uses to Syria will generally be denied. Applications for non-military end-users or end-uses will be considered on a case-by-case basis unless otherwise specified in paragraphs (c)(2) through (c)(42) of this Supplement. No contract sanctity date is available.
              (iii) Sudan. Applications for military end-users or end-uses in Sudan will generally be denied. Applications for export and reexport to non-military end-users or end-uses will be considered on a case-by-case basis unless otherwise specified in paragraphs (c)(2) through (c)(42) of this Supplement. No contract sanctity date is available.
              (iv) North Korea. Applications for all end-users in North Korea will generally be denied.

              (5) All military-related items, i.e., applications for export and reexport of items controlled by CCL entries ending with the number “18”.

              (i) [Reserved]
              (ii) Syria. Applications for all end-users in Syria will generally be denied. Contract sanctity date: see paragraph (c)(1)(ii) of this Supplement.
              (iii) Sudan. Applications for all end-users in Sudan will generally be denied. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for all end-users in North Korea will generally be denied.
              (6) All aircraft (powered and unpowered), helicopters, engines, and related spare parts and components. (i) [Reserved]
              (ii) Syria. Applications for all end-users in Syria will generally be denied.
              (A) There is no contract sanctity for helicopters exceeding 10,000 lbs. empty weight or fixed wing aircraft valued at $3 million or more; except that passenger aircraft, regardless of value, have a contract sanctity date of December 16, 1986, if destined for a regularly scheduled airline with assurance against military use.
              (B) Contract sanctity date for helicopters with 10,000 lbs. empty weight or less: April 28, 1986.
              (C) Contract sanctity date for other aircraft and gas turbine engines therefor: December 16, 1986.
              (D) Contract sanctity date for helicopter or aircraft parts and components controlled by ECCN 9A991.d: August 28, 1991.
              (iii) [Reserved]
              (iv) North Korea. Applications for all end-users in North Korea will generally be denied.
              (7) Heavy duty, on-highway tractors (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis. Contract sanctity date: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date: January 19, 1996.
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea will be considered on a case-by-case basis.
              (8) Off-highway wheel tractors of carriage capacity 9t (10 tons) or more. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis. Contract sanctity date: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date: January 19, 1996.
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea will be considered on a case-by-case basis.
              (9) Large diesel engines (greater than 400 horsepower) and parts to power tank transporters. (i) [Reserved]
              (ii) Sudan. Applications for military end-users or for military end-uses in Sudan will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date: January 19, 1996.
              (iii) North Korea. Applications for military end-users or for military end-uses in North Korea will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea will be considered on a case-by-case basis.
              (10) Cryptographic, cryptoanalytic, and cryptologic equipment. (i) [Reserved]
              (ii) Syria. A license is required for all national security-controlled cryptographic, cryptoanalytic, and cryptologic equipment to all end-users. Applications for all end-users in Syria will generally be denied. Contract sanctity date for cryptographic, cryptoanalytic, and cryptologic equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (iii) [Reserved]
              (iv) North Korea. Applications for all end-users in North Korea of any such equipment will generally be denied.
              (11) Navigation, direction finding, and radar equipment. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis.

              (A) Contract sanctity date for exports of navigation, direction finding, and radar equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.

              (B) Contract sanctity date for all other navigation, direction finding, and radar equipment: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan of such equipment will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea will be considered on a case-by-case basis.
              (12) Electronic test equipment. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis.
              (A) Contract sanctity date for electronic test equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other electronic test equipment: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses, or for nuclear end-users or nuclear end-uses, in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses, or for non-nuclear end-users or non-nuclear end-uses, in North Korea will be considered on a case-by-case basis.
              (13) Mobile communications equipment. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis.
              (A) Contract sanctity date for mobile communications equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for exports of all other mobile communications equipment: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan of such equipment will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea will be considered on a case-by-case basis.
              (14) Acoustic underwater detection equipment. (i) [Reserved]
              (ii) Syria. A license is required for acoustic underwater detection equipment that was subject to national security controls on August 28, 1991, to all end-users. Applications for military end-users or for military end-uses in Syria will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis. Contract sanctity date for acoustic underwater detection equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (iii) Sudan. Applications for military end-users or for military end-uses to Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of such equipment of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea of such equipment will be considered on a case-by-case basis.
              (15) Portable electric power generator. (i) [Reserved]
              (ii) North Korea. Applications for military end-users or for military end-uses in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea of such equipment will be considered on a case-by-case basis.

              (16) Vessels and boats, including inflatable boats. (i) [Reserved]
              (ii) Syria. A license is required for national security-controlled vessels and boats. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis. Contract sanctity date for vessels and boats that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea of these items will be considered on a case-by-case basis.
              (17) Marine and submarine engines (outboard/inboard, regardless of horsepower). (i) [Reserved]
              (ii) Syria. A license is required for all marine and submarine engines subject to national security controls to all end-users. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis. Contract sanctity date for marine and submarine engines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in North Korea of these items will be considered on a case-by-case basis.
              (18) Underwater photographic equipment. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis.
              (A) Contract sanctity date for underwater photographic equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other underwater photographic equipment: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (19) Submersible systems. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such systems will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis.
              (A) Contract sanctity date for submersible systems that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other submersible systems: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such systems will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies(e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (20) Scuba gear and related equipment. (i) [Reserved]
              (ii) Sudan. Applications for military end-users and end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date: January 19, 1996.

              (iii) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (21) Pressurized aircraft breathing equipment. (i) [Reserved]
              (ii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date: January 19, 1996.
              (iii) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (22) Computer numerically controlled machine tools. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for computer numerically controlled machine tools that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for exports of all other computer numerically controlled machine tools: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (23) Vibration test equipment. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for vibration test equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for exports of all other vibration test equipment: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (24) Digital computers with an APP of .00001 WT or above, assemblies, related equipment, equipment for development or production of magnetic and optical storage equipment, and materials for fabrication of head/disk assemblies. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity dates for items that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other items: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. (A) Computers with an APP exceeding 0.0004 WT: Applications for all end-users will generally be denied.
              (B) Computers with an APP equal to or less than 0.0004 WT: Applications for military end-users or for military end-uses, or for nuclear end-users or nuclear end-uses, will generally be denied. Applications for non-military end-users or for non-military end-uses, or for non-nuclear end-users or non-nuclear end-uses, will be considered on a case-by-case basis.
              (25) Telecommunications equipment. (i) A license is required for the following telecommunications equipment:
              (A) Radio relay systems or equipment operating at a frequency equal to or greater than 19.7 GHz or “spectral efficiency” greater than 3 bit/s/Hz; (B) Fiber optic systems or equipment operating at a wavelength greater than 1000 nm; (C) “Telecommunications transmission systems” or equipment with a “digital transfer rate” at the highest multiplex level exceeding 45 Mb/s.
              (ii) [Reserved]

              (iii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for exports of telecommunications equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for exports of all other telecommunications equipment: August 28, 1991.
              (iv) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (v) North Korea. Applications for military end-users or for military end-uses in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (26) Microprocessors—(i) Operating at a clock speed over 25 MHz.
              (A) [Reserved]
              (B) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (1) Contract sanctity date for microprocessors that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this supplement.
              (2) Contract sanctity date for all other microprocessors: August 28, 1991.
              (C) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (ii) With a processing speed of 0.5 GFLOPS or above.
              (A) North Korea. Applications for all end-users in North Korea of these items will generally be denied.
              (B) [Reserved]
              (27) Semiconductor manufacturing equipment. For Syria, Sudan, or North Korea, a license is required for all such equipment described in ECCNs 3B001 and 3B991.
              (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for semiconductor manufacturing equipment that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other semiconductor manufacturing equipment: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (28) Software specially designed for the computer-aided design and manufacture of integrated circuits. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such software will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for such software that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other such software: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such software will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of such software will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (29) Packet switches. Equipment described in ECCN 5A991.c. (i) [Reserved]

              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for packet switches that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other packet switches: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (30) Specially designed software for air traffic control applications that uses any digital signal processing techniques for automatic target tracking or that has a facility for electronic tracking. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such software will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for such software that was subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for exports of all other such software: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such software will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of such software will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (31) Gravity meters having static accuracy of less (better) than 100 microgal, or gravity meters of the quartz element (worden) type. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for gravity meters that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for exports of all other such gravity meters: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (32) Magnetometers with a sensitivity lower (better) than 1.0 nt rms per square root Hertz. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for such magnetometers that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other such magnetometers: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.

              (33) Fluorocarbon compounds described in ECCN 1C006.d for cooling fluids for radar. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such compounds will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for such fluorocarbon compounds that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other such fluorocarbon compounds: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such compounds will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (34) High strength organic and inorganic fibers (kevlar) described in ECCN 1C210. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of such fibers will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for high strength organic and inorganic fibers (kevlar) described in ECCN 1C210 that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other high strength organic and inorganic fibers (kevlar) described in ECCN 1C210: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of such fibers will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses, or for nuclear end-users or nuclear end-uses, in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses, or for non-nuclear end-users or non-nuclear end-uses, in North Korea will be considered on a case-by-case basis.
              (35) Machines described in ECCNs 2B003 and 2B993 for cutting gears up to 1.25 meters in diameter. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other machines: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (36) Aircraft skin and spar milling machines. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (A) Contract sanctity date for aircraft skin and spar milling machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other aircraft skin and spar milling machines: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).

              (iv) North Korea. Applications for all end-users in North Korea of such equipment will generally be denied.
              (37) Manual dimensional inspection machines described in ECCN 2B996. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis.
              (A) Contract sanctity date for such manual dimensional inspection machines that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other such manual dimensional inspection machines: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses, or for nuclear end-users or nuclear end-uses, in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses, or for non-nuclear end-users or non-nuclear end-uses, in North Korea will be considered on a case-by-case basis.
              (38) Robots capable of employing feedback information in real time processing to generate or modify programs. (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by case basis.
              (A) Contract sanctity date for such robots that were subject to national security controls on August 28, 1991: see paragraph (c)(1)(ii) of this Supplement.
              (B) Contract sanctity date for all other such robots: August 28, 1991.
              (iii) Sudan. Applications for military end-users or for military end-uses in Sudan of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Sudan will be considered on a case-by-case basis. Contract sanctity date for Sudan: January 19, 1996, unless a prior contract sanctity date applies (e.g., items first controlled to Sudan for foreign policy reasons under EAA section 6(j) have a contract sanctity date of December 28, 1993).
              (iv) North Korea. Applications for military end-users or for military end-uses, or for nuclear end-users or nuclear end-uses, in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses, or for non-nuclear end-users or non-nuclear end-uses, in North Korea will be considered on a case-by-case basis.
              (39) Explosives detection equipment described in ECCN 2A983—(i) Explosives detection equipment described in ECCN 2A983, controlled prior to April 3, 2003 under ECCN 2A993.
              (A) [Reserved]
              (B) Syria. Applications for all end-users in Syria of these items will generally be denied. Contract sanctity date: January 19, 1996.
              (C) Sudan. Applications for all end-users in Sudan of these items will generally be denied. Contract sanctity date: January 19, 1996.
              (D) North Korea. Applications for all end-users in North Korea of these items will generally be denied.
              (ii) Explosives detection equipment described in ECCN 2A983, not controlled prior to April 3, 2003 under ECCN 2A993.
              (A) [Reserved]
              (B) Syria. Applications for all end-users in Syria of these items will generally be denied. Contract sanctity date: March 21, 2003.
              (C) Sudan. Applications for all end-users in Sudan of these items will generally be denied. Contract sanctity date for reexports by non-U.S. persons: March 21, 2003.
              (D) North Korea. Applications for all end-users in North Korea of these items will generally be denied. Contract sanctity date: March 21, 2003.
              (40) “Software” described in ECCN 2D983 specially designed or modified for the “development”, “production” or “use” of explosives detection equipment. (i) [Reserved]
              (ii) Syria. Applications for all end-users in Syria of these items will generally be denied. Contract sanctity date: March 21, 2003.
              (iii) Sudan. Applications for all end-users in Sudan of these items will generally be denied. Contract sanctity date for reexports by non-U.S. persons: March 21, 2003.
              (iv) North Korea. Applications for all end-users in North Korea of these items will generally be denied. Contract sanctity date: March 21, 2003.
              (41) “Technology” described in ECCN 2E983 specially designed or modified for the “development”, “production” or “use” of explosives detection equipment. (i) [Reserved]
              (ii) Syria. Applications for all end-users in Syria of these items will generally be denied. Contract sanctity date: March 21, 2003.
              (iii) Sudan. Applications for all end-users in Sudan of these items will generally be denied. Contract sanctity date for reexports by non-U.S. persons: March 21, 2003.

              (iv) North Korea. Applications for all end-users in North Korea of these items will generally be denied. Contract sanctity date: March 21, 2003.
              (42) Production technology controlled under ECCN 1C355 on the CCL—
              (i) [Reserved]
              (ii) Syria. Applications for military end-users or for military end-uses in Syria of these items will generally be denied. Applications for non-military end-users or for non-military end-uses in Syria will be considered on a case-by-case basis.
              (iii) Sudan. Applications for all end-users in Sudan of these items will generally be denied.
              (iv) North Korea. Applications for military end-users or for military end-uses in North Korea of these items will generally be denied. Applications for non-military end-users or for non-military end-uses will be considered on a case-by-case basis.
              (43) Commercial Charges and devices controlled under ECCN 1C992 on the CCL. (i) [Reserved]
              (ii) Syria. Applications for all end-users in Syria of these items will generally be denied.
              (iii) Sudan. Applications for all end-users in Sudan of these items will generally be denied.
              (iv) North Korea. Applications for all end-users in North Korea of these items will generally be denied.
              (44) Ammonium nitrate, including certain fertilizers containing ammonium nitrate, under ECCN 1C997 on the CCL (i) [Reserved]
              (ii) Syria. Applications for all end-users in Syria of these items will generally be denied. Contract sanctity date: June 15, 2001.
              (iii) Sudan. Applications for all end-users in Sudan of these items will generally be denied.
              (iv) North Korea. Applications for all end-users in North Korea of these items will generally be denied. Contract sanctity date: June 15, 2001.
              (45) Specific processing equipment, materials and software controlled under ECCNs 0A999, 0B999, 0D999, 1A999, 1C999, 1D999, 2A999, 2B999, 3A999, and 6A999 on the CCL. (i) North Korea. Applications for military end-users or for military end-uses, or for nuclear end-users or nuclear end-uses, in North Korea of such equipment will generally be denied. Applications for non-military end-users or for non-military end-uses, or for non-nuclear end-users or non-nuclear end-uses, in North Korea will be considered on a case-by-case basis.
              (ii) [Reserved]
              (46) Concealed object detection equipment described in ECCN 2A984. (i) Syria. Applications for all end-users in Syria of these commodities will generally be denied. Contract sanctity date: March 19, 2010.
              (ii) Sudan. Applications for all end-users in Sudan of these commodities will generally be denied. Contract sanctity date: March 19, 2010.
              (iii) North Korea. Applications for all end-users in North Korea of these commodities will generally be denied. Contract sanctity date: March 19, 2010.
              (47) “Software” described in ECCN 2D984 “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984. (i) Syria. Applications for all end-users in Syria of these software will generally be denied. Contract sanctity date: March 19, 2010.
              (ii) Sudan. Applications for all end-users in Sudan of these software will generally be denied. Contract sanctity date: March 19, 2010.
              (iii) North Korea. Applications for all end-users in North Korea of these software will generally be denied. Contract sanctity date: March 19, 2010.
              (48) “Technology” described in ECCN 2E984 “required” for the “development”, “production” or “use” of concealed object detection equipment controlled by 2A984, or the “development” of “software” controlled by 2D984. (i) Syria. Applications for all end-users in Syria of these items will generally be denied. Contract sanctity date: March 19, 2010.
              (ii) Sudan. Applications for all end-users in Sudan of these items will generally be denied. Contract sanctity date: March 19, 2010.
              (iii) North Korea. Applications for all end-users in North Korea of these items will generally be denied. Contract sanctity date: March 19, 2010.
              [69 FR 23630, Apr. 29, 2004, as amended at 69 FR 46076, July 30, 2004; 70 FR 14391, Mar. 22, 2005; 71 FR 20885, Apr. 24, 2006; 71 FR 51718, Aug. 31, 2006; 72 FR 20223, Apr. 24, 2007; 72 FR 62532, Nov. 5, 2007; 74 FR 2357, Jan. 15, 2009; 75 FR 14340, Mar. 25, 2010; 80 FR 43318, July 22, 2015; 82 FR 4783, Jan. 17, 2017]

              Supplement Nos. 3-5 to Part 742 [Reserved]

              Pt. 742, Supp. No. 6
              Supplement No. 6 to Part 742—Technical Questionnaire for Encryption and Other “Information Security” Items
              (a) For all items:
              (1) State the name(s) of each product being submitted for classification or other consideration (as a result of a request by BIS) and provide a brief non-technical description of the type of product (e.g., routers, disk drives, cell phones, and chips) being submitted, and provide brochures, data sheets, technical specifications or other information that describes the item(s).

              (2) Indicate whether there have been any prior classifications of the product(s), if they are applicable to the current submission. For products with minor changes in encryption functionality, you must include a cover sheet with complete reference to the previous review (Commodity Classification Automated Tracking System (CCATS) number, Export Control Classification Number (ECCN), authorization paragraph) along with a clear description of the changes.
              (3) Describe how encryption is used in the product and the categories of encrypted data (e.g., stored data, communications, management data, and internal data).
              (4) For ‘mass market’ encryption products, describe specifically to whom and how the product is being marketed and state how this method of marketing and other relevant information (e.g., cost of product and volume of sales) are described by the Cryptography Note (Note 3 to Category 5, Part 2).
              (5) Is any “encryption source code” being provided (shipped or bundled) as part of this offering? If yes, is this source code publicly available source code, unchanged from the code obtained from an open source Web site, or is it proprietary “encryption source code?”
              (b) For classification requests and other submissions, provide the following information
              (1) Description of all the symmetric and asymmetric encryption algorithms and key lengths and how the algorithms are used, including relevant parameters, inputs and settings. Specify which encryption modes are supported (e.g., cipher feedback mode or cipher block chaining mode).
              (2) Describe how encryption keys are generated or managed by your product, including algorithms and modulus sizes supported.
              (3) Describe whether the products incorporate or use “non-standard cryptography” defined as incorporating or using proprietary, unpublished cryptographic functionality, including encryption algorithms or protocols that have not been adopted or approved by a duly recognized international standards body. Provide a textual description and the source code of the algorithm.
              (4) Describe the pre-processing methods (e.g., data compression or data interleaving) that are applied to the plaintext data prior to encryption.
              (5) Describe the post-processing methods (e.g., packetization, encapsulation) that are applied to the cipher text data after encryption.
              (6) State all communication protocols (e.g., X.25, Telnet, TCP, IEEE 802.11, IEEE 802.16, SIP . . .) and cryptographic protocols and methods (e.g., SSL, TLS, SSH, IPSEC, IKE, SRTP, ECC, MD5, SHA, X.509, PKCS standards . . .), including application programming interfaces (APIs), that are supported and describe how they are used.
              (7) State how the product is written to preclude user modification of the encryption algorithms, key management and key space.
              (8) Describe the cryptographic functionality that is provided by third-party hardware or software encryption components (if any). Identify the manufacturers of the hardware or software components, including specific part numbers and version information as needed to describe the product. Describe whether the encryption software components (if any) are statically or dynamically linked.
              (9) Identify the version(s) and type(s) of compilers, runtime interpreters or code assemblers used, as applicable.
              (10) With respect to your company's encryption products, are any of the products (or its encryption components) manufactured outside the United States? If yes, provide manufacturing locations (city and country).

              (11) See § 740.17(b)(2) of the EAR. Describe whether the item meets any of the § 740.17(b)(2) criteria. Provide a comparison of your item against the criteria listed in each paragraph of § 740.17(b)(2). Give specific data for each of the parameters listed, as applicable (e.g., maximum aggregate encrypted throughput, maximum number of encrypted endpoints, maximum satellite or terrestrial wireless transmission rates, terrestrial wireless operating range, customized cryptography, network penetration capability, cryptanalytic capability and “non-standard cryptography”).

              (12) See § 740.17(b)(3) of the EAR. Describe whether the product meets any of the criteria described under each of the paragraphs in § 740.17(b)(3) (e.g., chip, chipset, electronic assembly, programmable logic device, cryptographic library, cryptographic development kit, “non-standard cryptography,” digital forensics, and “cryptographic activation”).
              (13) See § 740.17(b)(2)(iii) of the EAR. For products which incorporate an “open cryptographic interface” as defined in part 772 of the EAR, describe the cryptographic interface.
              (14) For products with IPsec capabilities:
              (i) Please describe your product's implementation of IKE vendor IDs, including vendor specific and capability IDs; and
              (ii) Please specify which version of IKE you use (IKEv1 or IKEv2).

              (c) For classification requests for hardware or software “encryption components” other than source code (i.e., chips, toolkits, executable or linkable modules intended for use in or production of another encryption item) provide the following additional information:
              (1) Reference the application for which the components are used in, if known;
              (2) State if there is a general programming interface to the component;

              (3) State whether the component is constrained by function; and

              (4) Identify the encryption component and include the name of the manufacturer, component model number or other identifier.
              (d) For classification requests for “encryption source code” provide the following information:
              (1) If applicable, reference the executable (object code) product that was previously classified by BIS;
              (2) Include whether the source code has been modified, and the technical details on how the source code was modified; and
              (3) Upon request, include a copy of the sections of the source code that contain the encryption algorithm, key management routines and their related calls.
              [75 FR 36497, June 25, 2010, as amended at 81 FR 64674, Sept. 20, 2016]

              Pt. 742, Supp. No. 7
              Supplement No. 7 to Part 742—Description of Major Weapons Systems
              (1) Battle Tanks: Tracked or wheeled self-propelled armored fighting vehicles with high cross-country mobility and a high-level of self protection, weighing at least 16.5 metric tons unladen weight, with a high muzzle velocity direct fire main gun of at least 75 millimeters caliber.
              (2) Armored Combat Vehicles: Tracked, semi-tracked, or wheeled self-propelled vehicles, with armored protection and cross-country capability, either designed and equipped to transport a squad of four or more infantrymen, or armed with an integral or organic weapon of a least 12.5 millimeters caliber or a missile launcher.
              (3) Large-Caliber Artillery Systems: Guns, howitzers, artillery pieces combining the characteristics of a gun or a howitzer, mortars or multiple-launch rocket systems, capable of engaging surface targets by delivering primarily indirect fire, with a caliber of 75 millimeters and above.
              (4) Combat Aircraft: Fixed-wing or variable-geometry wing aircraft designed, equipped, or modified to engage targets by employing guided missiles, unguided rockets, bombs, guns, cannons, or other weapons of destruction, including versions of these aircraft which perform specialized electronic warfare, suppression of air defense or reconnaissance missions. The term “combat aircraft” does not include primary trainer aircraft, unless designed, equipped, or modified as described above.
              (5) Attack Helicopters: Rotary-wing aircraft designed, equipped or modified to engage targets by employing guided or unguided anti-armor, air-to-surface, air-to-subsurface, or air-to-air weapons and equipped with an integrated fire control and aiming system for these weapons, including versions of these aircraft that perform specialized reconnaissance or electronic warfare missions.
              (6) Warships: Vessels or submarines armed and equipped for military use with a standard displacement of 750 metric tons or above, and those with a standard displacement of less than 750 metric tons that are equipped for launching missiles with a range of at least 25 kilometers or torpedoes with a similar range.
              (7) Missiles and Missile Launchers:
              (a) Guided or unguided rockets, or ballistic, or cruise missiles capable of delivering a warhead or weapon of destruction to a range of at least 25 kilometers, and those items that are designed or modified specifically for launching such missiles or rockets, if not covered by systems identified in paragraphs (1) through (6) of this Supplement. For purposes of this rule, systems in this paragraph include remotely piloted vehicles with the characteristics for missiles as defined in this paragraph but do not include ground-to-air missiles;
              (b) Man-Portable Air-Defense Systems (MANPADS); or
              (c) Unmanned Aerial Vehicles (UAVs) of any type, including sensors for guidance and control of these systems, except model airplanes.
              (8) Offensive Space Weapons: Systems or capabilities that can deny freedom of action in space for the United States and its allies or hinder the United States and its allies from denying an adversary the ability to take action in space. This includes systems such as anti-satellite missiles, or other systems designed to defeat or destroy assets in space.
              (9) Command, Control, Communications, Computer, Intelligence, Surveillance, and Reconnaissance (C4ISR): Systems that support military commanders in the exercise of authority and direction over assigned forces across the range of military operations; collect, process, integrate, analyze, evaluate, or interpret information concerning foreign countries or areas; systematically observe aerospace, surface or subsurface areas, places, persons, or things by visual, aural, electronic, photographic, or other means; and obtain, by visual observation or other detection methods, information about the activities and resources of an enemy or potential enemy, or secure data concerning the meteorological, hydrographic, or geographic characteristics of a particular area, including Undersea communications. Also includes sensor technologies.
              (10) Precision Guided Munitions (PGMs), including “smart bombs”: Weapons used in precision bombing missions such as specially designed weapons, or bombs fitted with kits to allow them to be guided to their target.

              (11) Night vision equipment: Any electro-optical device that is used to detect visible and infrared energy and to provide an image. This includes night vision goggles, forward-looking infrared systems, thermal sights, and low-light level systems that are night vision devices, as well as infrared focal plane array detectors and cameras specifically designed, developed, modified, or configured for military use; image intensification and other night sighting equipment or systems specifically designed, modified or configured for military use; second generation and above military image intensification tubes specifically designed, developed, modified, or configured for military use, and infrared, visible and ultraviolet devices specifically designed, developed, modified, or configured for military application.
              [72 FR 33656, June 19, 2007, as amended at 73 FR 58037, Oct. 6, 2008]

              Pt. 742, Supp. No. 8
              Supplement No. 8 to Part 742—Self-Classification Report for Encryption Items
              This supplement provides certain instructions and requirements for self-classification reporting to BIS and the ENC Encryption Request Coordinator (Ft. Meade, MD) of encryption commodities, software and components exported or reexported pursuant to § 740.17(b)(1) of the EAR. See § 740.17(e)(3) of the EAR for additional instructions and requirements pertaining to this supplement, including when to report and how to report.
              (a) Information to report. The following information is required in the file format as described in paragraph (b) of this supplement, for each encryption item subject to the requirements of this supplement and §§ 740.17(b)(1) and 740.17(e)(3) of the EAR:
              (1) Name of product (50 characters or less).
              (2) Model/series/part number (50 characters or less.) If necessary, enter ‘NONE’ or ‘N/A’.
              (3) Primary manufacturer (50 characters or less). Enter ‘SELF’ if you are the primary manufacturer of the item. If there are multiple manufacturers for the item but none is clearly primary, either enter the name of one of the manufacturers or else enter ‘MULTIPLE’. If necessary, enter ‘NONE’ or ‘N/A’.

              (4) Export Control Classification Number (ECCN), selected from one of the following:
              (i) 5A002
              (ii) 5B002
              (iii) 5D002
              (iv) 5A992
              (v) 5D992

              (5) Encryption authorization type identifier, selected from one of the following, which denote eligibility under License Exception ENC § 740.17(b)(1):
              (i) ENC
              (ii) MMKT
              (6) Item type descriptor, selected from one of the following:
              (i) Access point;
              (ii) Cellular;
              (iii) Computer or computing platforms;
              (iv) Computer forensics;
              (v) Cryptographic accelerator;
              (vi) Data backup and recovery;
              (vii) Database;
              (viii) Disk/drive encryption;
              (ix) Distributed computing;
              (x) Email communications;
              (xi) Fax communications;
              (xii) File encryption;
              (xiii) Firewall;
              (xiv) Gateway;
              (xv) Intrusion detection;
              (xvi) Identity management;
              (xvii) Key exchange;
              (xviii) Key management;
              (xix) Key storage;
              (xx) Link encryption;
              (xxi) Local area networking (LAN);
              (xxii) Metropolitan area networking (MAN);
              (xxiii) Mobility and mobile applications n.e.s.;
              (xxiv) Modem;
              (xxv) Multimedia n.e.s.;
              (xxvi) Network convergence or infrastructure n.e.s.;
              (xxvii) Network forensics;
              (xxviii) Network intelligence;
              (xxix) Network or systems management (OAM/OAM&P);
              (xxx) Network security monitoring;
              (xxxi) Network vulnerability and penetration testing;
              (xxxii) Operating system;
              (xxxiii) Optical networking;
              (xxxiv) Radio communications;
              (xxxv) Router;
              (xxxvi) Satellite communications;
              (xxxvii) Short range wireless n.e.s.;
              (xxxviii) Storage Area Networking (SAN);
              (xxxix) 3G/4G/5G/LTE/WiMAX;
              (xl) Trusted computing;
              (xli) Videoconferencing;
              (xlii) Virtual private networking (VPN);
              (xliii) Voice communications n.e.s.;
              (xliv) Voice over Internet Protocol (VoIP);
              (xlv) Wide Area Networking (WAN);
              (xlvi) Wireless Local Area Networking (WLAN);
              (xlvii) Wireless Personal Area Networking (WPAN);
              (xlviii) Test equipment n.e.s.; or
              (xlix) Other (please specify).
              (7) Name of company or individual submitting the report (50 characters or less).
              (8) Telephone number (50 characters or less).
              (9) Email address (50 characters or less).
              (10) Mailing address (50 characters or less).

              (11) With respect to your company's encryption products, do they incorporate encryption components produced or furnished by non-U.S. sources or vendors? Enter 'YES', 'NO', or if necessary, 'N/A' (250 characters or less).

              (12) With respect to your company's encryption products, are any of them manufactured in non-U.S. locations?” If yes, list the non-U.S. manufacturing locations by city and country. If necessary, enter 'NONE' or 'N/A' (250 characters or less).
              (b) File format requirements. (1) The information described in paragraph (a) of this supplement must be provided in tabular or spreadsheet form, as an electronic file in comma separated values format (.csv), only. No file formats other than .csv will be accepted, as your encryption self-classification report must be directly convertible to tabular or spreadsheet format, where each row (and all entries within a row) properly correspond to the appropriate encryption item.

                Note to paragraph (b)(1):
                An encryption self-classification report data table created and stored in spreadsheet format (e.g., file extension .xls, .numbers, .qpw, .wb*, .wrk, and .wks) can be converted and saved into a comma delimited file format directly from the spreadsheet program. This .csv file is then ready for submission.

              (2) Each line of your encryption self-classification report (.csv file) must consist of twelve entries as further described in this supplement.

              (3) The first line of the .csv file must consist of the following twelve entries (i.e., match the following) without alteration or variation: PRODUCT NAME, MODEL NUMBER, MANUFACTURER, ECCN, AUTHORIZATION TYPE, ITEM TYPE, SUBMITTER NAME, TELEPHONE NUMBER, E-MAIL ADDRESS, MAILING ADDRESS, NON-U.S. COMPONENTS, NON-U.S. MANUFACTURING LOCATIONS.

                Note to paragraph (b)(3):
                These first twelve entries (i.e., first row) of an encryption self-classification report in .csv format correspond to the twelve column headers of a spreadsheet data file. The responses provided under column headers 7 through 12 (SUBMITTER NAME through NON-U.S. MANUFACTURING LOCATIONS) relate to the company as a whole, and thus should be entered the same for each product (i.e., only one point of contact, one 'YES' or 'NO' answer to whether any of the reported products incorporate non-U.S. sourced encryption components, and one list of non-U.S. manufacturing locations, is required for the report). However, even though the information is the same for each product, please duplicate this information into each row of the spreadsheet, leaving no entry blank, so each product has the same identifying company information.

              (4) Each subsequent line of the .csv file must correspond to a single encryption item (or a distinguished series of products) as described in paragraph (c) of this supplement.
              (5) Each line must consist of six entries as described in paragraph (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) of this supplement. No entries may be left blank. Each entry must be separated by a comma (,). Certain additional instructions are as follows:
              (i) Line entries (a)(1) (‘PRODUCT NAME’) and (a)(4) (‘ECCN’) must be completed with relevant information.
              (ii) For entries (a)(2) (‘MODEL NUMBER’) and (a)(3) (‘MANUFACTURER’), if these entries do not apply to your item or situation you may enter ‘NONE’ or ‘N/A’.
              (iii) For entries (a)(5) (‘AUTHORIZATION TYPE’), if none of the provided choices apply to your situation, you may enter ‘OTHER’.
              (6) Because of .csv file format requirements, the only permitted use of a comma is as the necessary separator between line entries. You may not use a comma for any other reason in your encryption self-classification report.
              (c) Other instructions. (1) The information provided in accordance with this supplement and §§ 740.17(b)(1) and 740.17(e)(3) of the EAR must identify product offerings as they are typically distinguished in inventory, catalogs, marketing brochures and other promotional materials.

              (2) For families of products where all the information described in paragraph (a) of this supplement is identical except for the model/series/part number (entry (a)(2)), you may list and describe these products with a single line in your .csv file using an appropriate model/series/part number identifier (e.g., ‘300’ or ‘3xx’) for entry (a)(2), provided each line in your .csv file corresponds to a single product series (or product type) within an overall product family.
              (3) For example, if Company A produces, markets and sells both a ‘100’ (‘1xx’) and a ‘300’ (‘3xx’) series of product, in its encryption self-classification report (.csv file) Company A must list the ‘100’ product series in one line (with entry (a)(2) completed as ‘100’ or ‘1xx’) and the ‘300’ product series in another line (with entry (a)(2) completed as ‘300’ or ‘3xx’), even if the other required information is common to all products in the ‘100’ and ‘300’ series.
              (4) Only products self-classified by the exporter or reexporter must be reported. Products submitted for classification by the Bureau of Industry and Security for which a CCATS is issued do not need to be reported.
              [75 FR 36498, June 25, 2010, as amended at 81 FR 64675, Sept. 20, 2016]

            Pt. 743
            PART 743—SPECIAL REPORTING AND NOTIFICATION

              Sec.
              743.1
              Wassenaar Arrangement.

              743.2
              High performance computers: Post shipment verification reporting.
              743.3
              Thermal imaging camera reporting.
              743.4
              Conventional arms reporting.
              743.5
              Prior notifications to Congress of Exports of “600 Series Major Defense Equipment.”
              Supplement No. 1 to Part 743—Wassenaar Arrangement Participating States

              Authority:
              50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; 78 FR 16129; Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).

              § 743.1
              Wassenaar Arrangement.
              (a) Scope. This section outlines special reporting requirements for exports of certain commodities, software and technology controlled under the Wassenaar Arrangement. Such reports must be submitted to BIS semiannually in accordance with the provisions of paragraph (f) of this section, and records of all exports subject to the reporting requirements of this section must be kept in accordance with part 762 of the EAR. This section does not require reports for reexports. This section is limited to the Wassenaar Arrangement reporting requirements for items listed on the Wassenaar Arrangement's Dual-Use list. For reporting requirements for conventional arms listed on the Wassenaar Arrangement Munitions List that are subject to the EAR (i.e., “600 series” ECCNs), see § 743.4 of this part for Wassenaar Arrangement and United Nations reporting requirements.

                Note to paragraph (a) of this section:
                For purposes of part 743, the term “you” has the same meaning as the term “exporter”, as defined in part 772 of the EAR.

              (b) Requirements. You must submit two (2) copies of each report required under the provisions of this section and maintain accurate supporting records (see § 762.2(b) of the EAR) for all exports of items specified in paragraph (c) of this section for the following:
              (1) Exports authorized under License Exceptions GBS, CIV, TSR, LVS, APP, and the cooperating government portions (§ 740.11(c) of the EAR) of GOV (see part 740 of the EAR). Note that exports of technology and source code under License Exception TSR to foreign nationals located in the U.S. should not be reported; and
              (2) [Reserved]
              (3) Exports authorized under the Validated End-User authorization (see § 748.15 of the EAR).
              (4) Exports authorized under License Exception STA (See § 740.20 of the EAR).
              (c) Items for which reports are required. You must submit reports to BIS under the provisions of this section only for exports of items on the Sensitive List (see supplement no. 6 to part 774 of the EAR).
              (d) Country Exceptions. You must report each export subject to the provisions of this section, except for exports to Wassenaar member countries, as identified in supplement no. 1 to part 743.
              (e) Information that must be included in each report. (1) Each report submitted to BIS for items other than those identified in paragraph (e)(2) of this section must include the following information for each export during the time periods specified in paragraph (f) of this section:
              (i) Export Control Classification Number and paragraph reference as identified on the Commerce Control List;
              (ii) Number of units in the shipment; and

                Note to paragraph (e)(1)(ii):
                For exports of technology for which reports are required under § 743.1(c) of this section, the number of units in the shipment should be reported as one (1) for the initial export of the technology to a single ultimate consignee. Additional exports of the technology must be reported only when the type or scope of technology changes or exports are made to other ultimate consignees. Additionally, do not report the release of technology or source code subject to the EAR to foreign nationals in the U.S.

              (iii) Country of ultimate destination.
              (2) [Reserved]
              (f) Frequency and timing of reports. You must submit reports subject to the provisions of this section semiannually. The reports must be labeled with the exporting company's name and address at the top of each page and must include for each such export all the information specified in paragraph (e) of this section. The reports shall cover exports made during six month time periods spanning from January 1 through June 30 and July 1 through December 31.
              (1) The first report must be submitted to and received by BIS no later than August 1, 1998 for the partial reporting period beginning January 15, 1998 and ending June 30, 1998. Thereafter, reports are due according to the provisions of paragraphs (f)(2) and (f)(3) of this section.
              (2) Reports for the reporting period ending June 30 must be submitted to and received by BIS no later than August 1.
              (3) Reports for the reporting period ending December 31 must be submitted to and received by BIS no later than February 1.
              (g) Where to submit Wassenaar reports—(1) Email. Reports may be Emailed to WAreports@bis.doc.gov.

              (2) Mail. If mailed, two (2) copies of reports are required to be delivered via courier to: Bureau of Industry and Security, U.S. Department of Commerce, Attn: “Wassenaar Reports”, Room 2099B, 14th Street and Pennsylvania Ave. NW., Washington, DC 20230. BIS will not accept reports sent C.O.D.
              (3) Facsimile. Reports may also be sent by facsimile to: (202) 482-3345 or 202-482-1373, Attn: “Wassenaar Reports”.
              (h) Contacts. General information concerning the Wassenaar Arrangement and reporting obligations thereof is available from the Office of National Security and Technology Transfer Controls, Tel. (202) 482-4479, Fax: (202) 482-3345 or (202) 482-1373, or Email: WAreports@bis.doc.gov.

              [63 FR 2458, Jan. 15, 1998]

                Editorial Note:
                For Federal Register citations affecting § 743.1, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 743.2
              High performance computers: Post shipment verification reporting.
              (a) Scope. This section outlines special post-shipment reporting requirements for exports of certain computers to destinations in Computer Tier 3, see § 740.7(d) for a list of these destinations. Post-shipment reports must be submitted in accordance with the provisions of this section, and all relevant records of such exports must be kept in accordance with part 762 of the EAR.
              (b) Requirement. Exporters must file post-shipment reports and keep records in accordance with recordkeeping requirements in part 762 of the EAR for high performance computer exports to destinations in Computer Tier 3, as well as, exports of commodities used to enhance computers previously exported or reexported to Computer Tier 3 destinations, where the “Adjusted Peak Performance” (“APP”) is greater than that listed in ECCN 4A003.b in the Commerce Control List, supplement no. 1 to part 774 of the EAR.
              (c) Information that must be included in each post-shipment report. No later than the last day of the month following the month in which the export takes place, the exporter must submit the following information to BIS at the address listed in paragraph (d) of this section:
              (1) Exporter name, address, and telephone number;
              (2) License number;
              (3) Date of export;
              (4) End-user name, point of contact, address, telephone number;
              (5) Carrier;
              (6) Air waybill or bill of lading number;
              (7) Commodity description, quantities—listed by model numbers, serial numbers, and APP level in WT; and

              (8) Certification line for exporters to sign and date. The exporter must certify that the information contained in the report is accurate to the best of his or her knowledge.

                Note to paragraph (c) of this section:
                Exporters are required to provide the PRC End-User Certificate Number to BIS as part of their post-shipment report. When providing the PRC End-User Certificate Number to BIS, you must identify the transaction in the post shipment report to which that PRC End-User Certificate Number applies.

              (d) Address. A copy of the post-shipment report(s) required under paragraph (b) of this section shall be delivered, via courier, to: U.S. Department of Commerce, Office of Enforcement Analysis, HPC Team, 14th Street and Constitution Ave., NW., Room 4065, Washington, DC 20230. Note that BIS will not accept reports sent C.O.D.
              [71 FR 20886, Apr. 24, 2006, as amended at 73 FR 35, Jan. 2, 2008; 76 FR 36988, June 24, 2011; 77 FR 39369, July 2, 2012; 79 FR 45296, Aug. 4, 2014; 81 FR 64675, Sept. 20, 2016]

              § 743.3
              Thermal imaging camera reporting.
              (a) General requirement. Exports of thermal imaging cameras must be reported to BIS as provided in this section.
              (b) Transactions to be reported. Exports that are not authorized by an individually validated license of thermal imaging cameras controlled by ECCN 6A003.b.4.b to a destination in Country Group A:1 (see supplement no. 1 to part 740 of the EAR), except Canada, must be reported to BIS.
              (c) Party responsible for reporting. The exporter as defined in § 772.1 of the EAR must ensure the reports required by this section are submitted to BIS.
              (d) Information to be included in the reports. For each export described in paragraph (b) of this section, the report must identify: the name, address, and telephone number of the exporter; the date of each export; the name, address and telephone number of the consignee or end user; the model number(s) of each camera exported; the serial number of each exported camera that has a serial number; and the quantity of each model number of camera exported. (Note: Technical specifications may be requested on an as needed basis and must be provided to BIS after any such request.)
              (e) Where to submit reports. Submit the reports via e-mail to UTICreport@bis.doc.gov.

              (f) Reporting periods and due dates. This reporting requirement applies to exports made on or after May 22, 2009. Exports must be reported within one month of the reporting period in which the export takes place. The first reporting period begins on May 22, 2009 and runs through June 30, 2009. Subsequent reporting periods shall begin on January 1 and July 1 of each year, and shall run through June 30, and December 31 respectively. Exports in each reporting period must be reported to BIS no later than the last day of the month following the month in which the reporting period ends.
              [74 FR 23947, May 22, 2009, as amended at 74 FR 68146, Dec. 23, 2009; 76 FR 58397, Sept. 21, 2011; 80 FR 29444, May 21, 2015; 80 FR 75635, Dec. 3, 2015]

              § 743.4
              Conventional arms reporting.
              (a) Scope. This section outlines special reporting requirements for exports of certain items listed on the Wassenaar Arrangement Munitions List and the UN Register of Conventional Arms. Participating States of the Wassenaar Arrangement exchange information every six months on deliveries to non-participating states of conventional arms set forth in the Wassenaar Arrangement's Basic Documents under Part II Guideline and Procedures, including the Initial Elements, Appendix 3: Specific Information Exchange on Arms Content by Category (at www.wassenaar.org), derived from the categories of the UN Register of Conventional Arms (at www.un.org/disarmament/convarms/Register/). Similar, although not identical, information is also reported by the U.S. Government to the United Nations on an annual basis. The reported information should include the quantity and the name of the recipient state and, except in the category of missiles and missile launchers, details of model and type. Such reports must be submitted to BIS semi-annually in accordance with the provisions of paragraph (f) of this section for items identified in paragraph (c)(1) and annually for items identified in paragraph (c)(2), and records of all exports subject to the reporting requirements of this section must be kept in accordance with part 762 of the EAR. This section does not require reports for reexports or transfers (in-country).

                Note to paragraph (a):
                For purposes of § 743.4, the term “you” has the same meaning as the term “exporter”, as defined in part 772 of the EAR.

              (b) Requirements. You must submit one electronic copy of each report required under the provisions of this section and maintain accurate supporting records (see § 762.2(b) of the EAR) for all exports of items specified in paragraph (c) of this section for the following:
              (1) Exports authorized under License Exceptions LVS, TMP, RPL, STA, or GOV (see part 740 of the EAR);
              (2) [Reserved]
              (3) Exports authorized under the Validated End User authorization (see § 748.15 of the EAR).
              (c) Items for which reports are required—(1) Wassenaar Arrangement reporting. You must submit reports to BIS under the provisions of this section only for exports of items classified under the following ECCNs:
              (i)-(ii) [Reserved]
              (2) United Nations reporting. You must submit reports to BIS under the provisions of this section only for exports of items classified under the following ECCNs:
              (i)-(ii) [Reserved]
              (d) Country Exceptions for Wassenaar Arrangement reporting. You must report each export subject to the provisions of this section, except for exports to Wassenaar member countries, identified in supplement no. 1 to part 743 for reports required under paragraph (c)(1) of this section.
              (e) Information that must be included in each report. (1) Each report submitted to BIS for items other than those identified in paragraph (e)(2) of this section must include the following information for each export during the time periods specified in paragraph (f) of this section:
              (i) Export Control Classification Number and paragraph reference as identified on the Commerce Control List;
              (ii) Number of units in the shipment; and

                Note to paragraph (e)(1)(ii):
                For exports of technology for which reports are required under § 743.1(c) of this section, the number of units in the shipment should be reported as one (1) for the initial export of the technology to a single ultimate consignee. Additional exports of the technology must be reported only when the type or scope of technology changes or exports are made to other ultimate consignees.

              (iii) Country of ultimate destination.
              (f) Frequency and timing of reports—(1) Semi-annual reports for items identified in paragraph (c)(1) of this section. You must submit reports subject to the provisions of this section semiannually. The reports must be labeled with the exporting company's name and address at the top of each page and must include for each such export all the information specified in paragraph (e) of this section. The reports shall cover exports made during six-month time periods from January 1 through June 30 and July 1 through December 31.
              (i) The first report must be submitted to and received by BIS no later than 180 days after the effective date of the rule that revises paragraph (c)(1) of this section to add the ECCN for the item being reported. Thereafter, reports are due according to the provisions of paragraphs (f)(2) and (f)(3) of this section.
              (ii) Reports for the reporting period ending June 30 must be submitted to and received by BIS no later than August 1.
              (iii) Reports for the reporting period ending December 31 must be submitted to and received by BIS no later than February 1.
              (2) Annual reports for items identified in paragraph (c)(2) of this section. You must submit reports subject to the provisions of this section annually. The reports must be labeled with the exporting company's name and address at the top of each page and must include for each such export all the information specified in paragraph (e) of this section. The reports shall cover exports made during twelve month time periods from January 1 through December 31.
              (i) The first report must be submitted to and received by BIS no later than 180 days after the effective date of the rule that revises paragraph (c)(1) of this section to add the ECCN for the item being reported. Thereafter, reports are due according to the provisions of paragraph (f)(2) of this section.
              (ii) Reports for the reporting period ending December 31 must be submitted to and received by BIS no later than February 1.
              (g) Submission of reports. Information should be submitted in the form of a spreadsheet and emailed to WAreports@BIS.DOC.GOV or UNreports@BIS.DOC.GOV.

              (h) Contacts. General information concerning the Wassenaar Arrangement and reporting obligations thereof is available from the Office of National Security and Technology Transfer Controls, Tel. (202) 482-0092, Fax: (202) 482-4094.
              [78 FR 22722, Apr. 16, 2013, as amended at 80 FR 51730, Aug. 26, 2015]

              § 743.5
              Prior notifications to Congress of Exports of “600 Series Major Defense Equipment.”
              (a) General requirement. Applications to export items on the Commerce Control List that are “600 Series Major Defense Equipment” will be notified to Congress as provided in this section before licenses for such items are issued.
              (1) Exports of “600 Series Major Defense Equipment” to U.S. Government end users under License Exception GOV (§ 740.11(b) of the EAR) do not require such notification.
              (2) Exports of “600 Series Major Defense Equipment” that have been or will be described in a notification filed by the U.S. State Department under the Arms Export Control Act do not require such notification by BIS.

              (b) BIS will notify Congress prior to issuing a license authorizing the export of items to a country outside the countries listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR) that are sold under a contract that includes $14,000,000 or more of “600 Series Major Defense Equipment.”
              (c) BIS will notify Congress prior to issuing a license authorizing the export of items to a country listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR) that are sold under a contract that includes $25,000,000 or more of “600 Series Major Defense Equipment.”
              (d) In addition to information required on the application, the exporter must include a copy of the signed contract (including a statement of the value of the “600 Series Major Defense Equipment” items to be exported under the contract) for any proposed export described in paragraphs (b) or (c) of this section.
              (e) Address. Munitions Control Division at bis.compliance@bis.doc.gov.

              [78 FR 22722, Apr. 16, 2013]

              Pt. 743, Supp. No. 1
              Supplement No. 1 to Part 743—Wassenaar Arrangement Participating States

                Argentina
                Australia
                Austria
                Belgium
                Bulgaria
                Canada
                Croatia
                Czech Republic
                Denmark
                Estonia
                Finland
                France
                Germany
                Greece
                Hungary
                India
                Ireland
                Italy
                Japan
                Latvia
                Lithuania
                Luxembourg
                Malta
                Mexico
                Netherlands
                New Zealand
                Norway
                Poland
                Portugal
                Romania
                Russia
                Slovakia
                Slovenia
                South Africa
                South Korea
                Spain
                Sweden
                Switzerland
                Turkey
                Ukraine
                United Kingdom
                United States

              [63 FR 55020, Oct. 14, 1998, as amended at 70 FR 41102, July 15, 2005; 71 FR 52964; Sept. 7, 2006; 77 FR 39369, July 2, 2012; 83 FR 38021, Aug. 3, 2018]

            Pt. 744
            PART 744—CONTROL POLICY: END-USER AND END-USE BASED

              Sec.
              744.1
              General provisions.
              744.2
              Restrictions on certain nuclear end-uses.
              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.
              744.4
              Restrictions on certain chemical and biological weapons end-uses.
              744.5
              Restrictions on certain maritime nuclear propulsion end-uses.
              744.6
              Restrictions on certain activities of U.S. persons.
              744.7
              Restrictions on certain exports to and for the use of certain foreign vessels or aircraft.
              744.8
              Restrictions on exports and reexports to persons designated pursuant to Executive Order 13382—Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters.
              744.9
              Restrictions on exports, reexports, and transfers (in-country) of certain cameras, systems, or related components.
              744.10
              Restrictions on certain entities in Russia.
              744.11

              License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States.
              744.12
              Restrictions on exports and reexports to persons designated in or pursuant to Executive Order 13224 (Specially Designated Global Terrorist) (SDGT).
              744.13
              Restrictions on exports and reexports to persons designated pursuant to Executive Order 12947 (Specially Designated Terrorist) (SDT).
              744.14
              Restrictions on exports and reexports to designated Foreign Terrorist Organizations (FTOs).
              744.15
              Restrictions on exports, reexports and transfers (in-country) to persons listed on the unverified list.
              744.16
              Entity List.
              744.17
              Restrictions on certain exports, reexports and transfers (in-country) of microprocessors and associated “software” and “technology” for “military end uses” and to “military end users.”
              744.18
              Restrictions on exports, reexports, and transfers to persons designated in or pursuant to Executive Order 13315.
              744.19
              Licensing policy regarding persons sanctioned pursuant to specified statutes.
              744.20
              License requirements that apply to certain sanctioned entities.
              744.21
              Restrictions on certain 'Military end uses' in the People's Republic of China (PRC) or for a 'Military end use' or 'Military end user' in Russia or Venezuela.
              744.22
              [Reserved]
              Supplement No. 1 to Part 744—Military End-Use Examples for § 744.17
              Supplement No. 2 to Part 744—List of Items Subject to the Military End-Use License Requirement of § 744.21

              Supplement No. 3 to Part 744—Countries Not Subject to Certain Nuclear End-Use Restrictions in § 744.2(a)
              Supplement No. 4 to Part 744—Entity List
              Supplement No. 5 to Part 744—Procedures for End-User Review Committee Entity List Decisions
              Supplement No. 6 to Part 744—Unverified List
              Supplement No. 7 to Part 744—Temporary General License

              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 19, 2018, 83 FR 47799 (September 20, 2018); Notice of November 8, 2018, 83 FR 56253 (November 9, 2018).

              Editorial Note:
              The amendment to the authority citation to part 744 published at 84 FR 64019, Nov. 20, 2019, effective Nov. 18, 2019, could not be performed.

              Source:
              61 FR 12802, Mar. 25, 1996, unless otherwise noted.

              § 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 Prohibition Five (End-use/End-users) and Nine (Orders, Terms, and Conditions), unless authorized by BIS. Sections 744.2, 744.3, 744.4 prohibit exports, reexports and transfers (in-country) of items subject to the EAR to defined nuclear, missile, and chemical and biological proliferation activities. Section 744.5 prohibits exports, reexports and transfers (in-country) of items subject to the EAR to defined nuclear maritime end-uses. Section 744.6 prohibits certain activities by U.S. persons in support of certain nuclear, missile, chemical, or biological end-uses. 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 744.10 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 (in-country) to persons listed on the Unverified List (UVL) in supplement no. 6 of 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 744.19 sets forth BIS's licensing 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 specified items for certain 'military end uses' in the People's Republic of China (PRC) or for a 'military end use' or 'military end user' in Russia or Venezuela. Section 744.22 imposes restrictions on exports, reexports and transfers to persons whose property and interests in property are blocked pursuant to Executive Orders 13310, 13448, or 13464.
              (2) If controls set forth under more than one section of part 744 apply to a person, the license requirements for such a person will be determined based on the requirements of all applicable sections of part 744, and license applications will be reviewed under all applicable licensing policies.
              (b) Steps. The following are steps you should follow in using the provisions of this part:
              (1) Review end-use and end-user prohibitions. First, review each end-use and end-user prohibition described in this part to learn the scope of these prohibitions.
              (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, transfer (in-country) or other activity. See supplement no. 1 to part 732 for guidance. For exports, reexports 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) or § 744.6(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) shall not apply to license applications submitted pursuant to a notification from BIS that occurs while an export, reexport, or transfer (in-country) is in transit.
              [61 FR 12802, Mar. 25, 1996]

                Editorial Note:
                For Federal Register citations affecting § 744.1, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

              § 744.2
              Restrictions on certain nuclear 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) to any destination, other than countries in supplement no. 3 to this part, an item subject to the EAR without a license if, at the time of export, reexport, or transfer (in-country) you know 1
                 that the item will be used directly or indirectly in any one or more of the following activities described in paragraphs (a)(1), (a)(2), and (a)(3) of this section:

                  1 Part 772 of the EAR defines “knowledge” for all of the EAR except part 760, Restrictive Trade Practices and Boycotts. The definition, which includes variants such as “know” and “reason to know”, encompasses more than positive knowledge. Thus, the use of “know” in this section in place of the former wording “know or have reason to know” does not lessen or otherwise change the responsibilities of persons subject to the EAR.

              (1) Nuclear explosive activities. Nuclear explosive activities, including research on or development, design, manufacture, construction, testing or maintenance of any nuclear explosive device, or components or subsystems of such a device. 2 3

                  2 Nuclear explosive devices and any article, material, equipment, or device specifically designed or specially modified for use in the design, development, or fabrication of nuclear weapons or nuclear explosive devices are subject to export licensing or other requirements of the Directorate of Defense Trade Controls, U.S. Department of State, or the licensing or other restrictions specified in the Atomic Energy Act of 1954, as amended. Similarly, items specifically designed or specifically modified for use in devising, carrying out, or evaluating nuclear weapons tests or nuclear explosions (except such items as are in normal commercial use for other purposes) are subject to the same requirements.

                  3 Also see §§ 744.5 and 748.4 of the EAR for special provisions relating to technical data for maritime nuclear propulsion plants and other commodities.

              (2) Unsafeguarded nuclear activities. Activities including research on, or development, design, manufacture, construction, operation, or maintenance of any nuclear reactor, critical facility, facility for the fabrication of nuclear fuel, facility for the conversion of nuclear material from one chemical form to another, or separate storage installation, where there is no obligation to accept International Atomic Energy Agency (IAEA) safeguards at the relevant facility or installation when it contains any source or special fissionable material (regardless of whether or not it contains such material at the time of export), or where any such obligation is not met.
              (3) Safeguarded and unsafeguarded nuclear activities. Safeguarded and unsafeguarded nuclear fuel cycle activities, including research on or development, design, manufacture, construction, operation or maintenance of any of the following facilities, or components for such facilities: 4

                  4 Such activities may also require a specific authorization from the Secretary of Energy pursuant to § 57.b.(2) of the Atomic Energy Act of 1954, as amended, as implemented by the Department of Energy's regulations published in 10 CFR 810.

              (i) Facilities for the chemical processing of irradiated special nuclear or source material;
              (ii) Facilities for the production of heavy water;
              (iii) Facilities for the separation of isotopes of source and special nuclear material; or
              (iv) Facilities for the fabrication of nuclear reactor fuel containing plutonium.
              (b) 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 a specific export, reexport, or transfer (in-country), or for the export, reexport, or transfer (in-country) of specified items to a certain end-user, because there is an unacceptable risk of use in, or diversion to, the activities specified in paragraph (a) 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 persons from compliance with the license requirements of paragraph (a) of this section.
              (c) Exceptions. Despite the prohibitions described in paragraphs (a) and (b) of this section, you may export technology subject to the EAR under the operation technology and software or sales technology and software provisions of License Exception TSU (see § 740.13(a) and (b)), but only to and for use in countries listed in supplement no. 3 to part 744 of the EAR (Countries Not Subject to Certain Nuclear End-Use Restrictions in § 744.2(a)). Notwithstanding the provisions of part 740 of the EAR, the provisions of § 740.13(a) and (b) will only overcome General Prohibition Five for countries listed in supplement no. 3 to part 744 of the EAR.
              (d) License review standards. The following factors are among those used by the United States to determine whether to grant or deny license applications required under this section:

              (1) Whether the commodities, software, or technology to be transferred are appropriate for the stated end-use and whether that stated end-use is appropriate for the end-user;

              (2) The significance for nuclear purposes of the particular commodity, software, or technology;
              (3) Whether the commodities, software, or technology to be exported are to be used in research on or for the development, design, manufacture, construction, operation, or maintenance of any reprocessing or enrichment facility;
              (4) The types of assurances or guarantees given against use for nuclear explosive purposes or proliferation in the particular case;
              (5) Whether the end-user has been engaged in clandestine or illegal procurement activities;
              (6) Whether an application for a license to export to the end-user has previously been denied, or whether the end-use has previously diverted items received under a license, License Exception, or NLR to unauthorized activities;
              (7) Whether the export would present an unacceptable risk of diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2(a) of the EAR;
              (8) The nonproliferation credentials of the importing country, based on consideration of the following factors:
              (i) Whether the importing country is a party to the Nuclear Non-Proliferation Treaty (NPT) or to the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) (see supplement no. 2 to part 742 of the EAR), or to a similar international legally-binding nuclear nonproliferation agreement;
              (ii) Whether the importing country has all of its nuclear activities, facilities or installations that are operational, being designed, or under construction, under International Atomic Energy Agency (IAEA) safeguards or equivalent full scope safeguards;
              (iii) Whether there is an agreement for cooperation in the civil uses of atomic energy between the U.S. and the importing country;
              (iv) Whether the actions, statements, and policies of the government of the importing country are in support of nuclear nonproliferation and whether that government is in compliance with its international obligations in the field of nonproliferation;
              (v) The degree to which the government of the importing country cooperates in nonproliferation policy generally (e.g., willingness to consult on international nonproliferation issues);
              (vi) Intelligence data on the importing country's nuclear intentions and activities; and
              (9) Whether the recipient state has sufficient national export controls (as described in paragraph 3 of United Nations Security Council Resolution 1540 (2004)) to prevent an unacceptable risk of retransfer or diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2(a) of the EAR.
              [61 FR 12802, Mar. 25, 1996, as amended at 61 FR 64284, Dec. 4, 1996; 62 FR 25459, May 9, 1997; 67 FR 55598, Aug. 29, 2002; 73 FR 68326, Nov. 18, 2008; 79 FR 46324, Aug. 7, 2014]

              § 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) 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:
              (1) Will be used in the design, development, production or use 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 or use 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 or use 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:

              (i) The characteristics (i.e., range capabilities) of the rocket systems or unmanned aerial vehicles, or

              (ii) Whether the rocket systems or unmanned aerial vehicles, regardless of range capabilities, will be used in a manner prohibited under paragraph (a)(2) of this section.

                Note to paragraph (a) of this section:
                For the purposes of this section, “Rocket Systems” include, but are not limited to, ballistic missiles, space launch vehicles, and sounding rockets. Also, for the purposes of this section, “unmanned aerial vehicles” include, but are not limited to, cruise missiles, target drones and reconnaissance drones.

              (b) 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 a specific export, reexport or transfer (in-country) or for the export, reexport, or transfer (in-country) of specified items to a certain end-user, because there is an unacceptable risk of use in, or diversion to, the activities specified in paragraphs (a)(1) or (a)(2) 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 persons from compliance with the license requirements of paragraphs (a)(1), (a)(2), or (a)(3) of this section.
              (c) Exceptions. No License Exceptions apply to the prohibitions described in paragraph (a) and (b) of this section.
              (d) License review standards. (1) Applications to export, reexport or transfer (in-country) the items subject to this section will be considered on a case-by-case basis to determine whether the export, reexport or transfer (in-country) would make a material contribution to the proliferation of certain rocket systems, or unmanned aerial vehicles. When an export, reexport or transfer (in-country) is deemed to make a material contribution, the license will be denied.
              (2) The following factors are among those that will be considered to determine what action should be taken on an application required by this section:
              (i) The specific nature of the end use;
              (ii) The significance of the export, reexport or transfer in terms of its contribution to the design, development, production or use of certain rocket systems or unmanned aerial vehicles;
              (iii) The capabilities and objectives of the rocket systems or unmanned aerial vehicles of the recipient country;
              (iv) The nonproliferation credentials of the importing country;
              (v) The types of assurances or guarantees against design, development, production, or use for certain rocket system or unmanned aerial vehicle delivery purposes that are given in a particular case; and
              (vi) The existence of a pre-existing contract.
              [61 FR 12802, Mar. 25, 1996, as amended at 62 FR 25459, May 9, 1997; 69 FR 64659, Nov. 8, 2004; 70 FR 11861, Mar. 10, 2005; 73 FR 68326, Nov. 18, 2008; 82 FR 31446, July 7, 2017]

              § 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, or use of chemical or biological weapons in or by any country or destination, worldwide.
              (b) 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 a specific export, reexport, or transfer (in-country), or for the export, reexport, or transfer (in-country) of specified items to a certain end-user, because there is an unacceptable risk of use in or diversion to the activities specified in paragraph (a) of this section, anywhere in the world. 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 persons from compliance with the license requirements of paragraph (a) of this section.
              (c) Exceptions. No License Exceptions apply to the prohibitions described in paragraphs (a) and (b) of this section.
              (d) License review standards. (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 (in-country) would make a material contribution to the design, development, production, stockpiling, or use 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) The following factors are among those that will be considered to determine what action should be taken on an application required under this section:
              (i) The specific nature of the end-use;
              (ii) The significance of the export, reexport, or transfer in terms of its contribution to the design, development, production, stockpiling, or use of chemical or biological weapons;
              (iii) The nonproliferation credentials of the importing country or the country in which the transfer would take place;
              (iv) The types of assurances or guarantees against the design, development, production, stockpiling, or use of chemical or biological weapons that are given in a particular case; and
              (v) The existence of a pre-existing contract. See supplement no. 1 to part 742 of the EAR for relevant contract sanctity dates.
              [61 FR 12802, Mar. 25, 1996, as amended at 62 FR 25459, May 9, 1997; 70 FR 16111, Mar. 30, 2005; 70 FR 19691, Apr. 14, 2005; 73 FR 68326, Nov. 18, 2008]

              § 744.5
              Restrictions on certain maritime nuclear propulsion 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) certain technology subject to the EAR without a license if at the time of the export, reexport or transfer (in-country) you know the item is for use in connection with a foreign maritime nuclear propulsion project. This prohibition applies to any technology relating to maritime nuclear propulsion plants, their land prototypes, and special facilities for their construction, support, or maintenance, including any machinery, devices, components, or equipment specifically developed or designed for use in such plants or facilities.
              (b) Exceptions. The exceptions provided in part 740 of the EAR do not apply to the prohibitions described in paragraph (a) of this section.
              (c) License review standards. It is the policy of the United States Government not to participate in and not to authorize United States firms or individuals to participate in foreign naval nuclear propulsion plant projects, except under an Agreement for Cooperation on naval nuclear propulsion executed in accordance with § 123(d) of the Atomic Energy Act of 1954. However, it is the policy of the United States Government to encourage United States firms and individuals to participate in maritime (civil) nuclear propulsion plant projects in friendly foreign countries provided that United States naval nuclear propulsion information is not disclosed.
              [61 FR 12802, Mar. 25, 1996, as amended at 62 FR 25459, May 9, 1997; 73 FR 68326, Nov. 18, 2008]

              § 744.6
              Restrictions on certain activities of U.S. persons.
              (a) General prohibitions—(1) Activities related to exports. (i) No U.S. person as defined in paragraph (c) of this section may, without a license from BIS, export, reexport, or transfer (in-country) an item where that person knows that such item:
              (A) Will be used in the design, development, production, or use of nuclear explosive devices in or by a country listed in Country Group D:2 (see supplement no. 1 to part 740 of the EAR).

              (B) Will be used in the design, development, production, or use of missiles in or by a country listed in Country Group D:4 (see supplement no. 1 to part 740 of the EAR); or

              (C) Will be used in the design, development, production, stockpiling, or use of chemical or biological weapons in or by any country or destination, worldwide.
              (ii) No U.S. person shall, without a license from BIS, knowingly support an export, reexport, or transfer (in-country) that does not have a license as required by this section. Support means any action, including financing, transportation, and freight forwarding, by which a person facilitates an export, reexport, or transfer (in-country).
              (2) Other activities unrelated to exports. No U.S. person shall, without a license from BIS:
              (i) Perform any contract, service, or employment that the U.S. person knows will directly assist in the design, development, production, or use of missiles in or by a country listed in Country Group D:4 (see supplement no. 1 to part 740 of the EAR); or
              (ii) Perform any contract, service, or employment that the U.S. person knows will directly assist in the design, development, production, stockpiling, or use of chemical or biological weapons in or by any country or destination, worldwide.
              (3) Whole plant requirement. No U.S. person shall, without a license from BIS, participate in the design, construction, export, reexport, or transfer (in-country) of a whole plant to make chemical weapons precursors identified in ECCN 1C350, in countries other than those listed in Country Group A:3 (Australia Group) (See supplement no. 1 to part 740 of the EAR).
              (b) Additional prohibitions on U.S. persons informed by BIS. BIS may inform U.S. persons, either individually by specific notice or through amendment to the EAR, that a license is required because an activity could involve the types of participation and support described in paragraph (a) 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 (a) of this section.
              (c) Definition of U.S. person. For purposes of this section, the term U.S. person includes:
              (1) Any individual who is a citizen of the United States, a permanent resident alien of the United States, or a protected individual as defined by 8 U.S.C. 1324b(a)(3);
              (2) Any juridical person organized under the laws of the United States or any jurisdiction within the United States, including foreign branches; and
              (3) Any person in the United States.
              (d) Exceptions. No License Exceptions apply to the prohibitions described in paragraphs (a) and (b) of this section.
              (e) License review standards. Applications to engage in activities otherwise prohibited by this section will be denied if the activities would make a material contribution to the design, development, production, stockpiling, or use of nuclear explosive devices, chemical or biological weapons, or of missiles.
              [61 FR 12802, Mar. 25, 1996, as amended at 62 FR 25459, May 9, 1997; 70 FR 19691, Apr. 14, 2005; 73 FR 68326, Nov. 18, 2008]

              § 744.7
              Restrictions on certain exports to and for the use of certain foreign vessels or aircraft.
              (a) General end-use prohibition. In addition to the license requirements for items specified on the CCL, you may not export or reexport an item subject to the EAR to, or for the use of, a foreign vessel or aircraft, whether an operating vessel or aircraft or one under construction, located in any port including a Canadian port, unless a License Exception or NLR permits the shipment to be made:
              (1) To the country in which the vessel or aircraft is located, and
              (2) To the country in which the vessel or aircraft is registered, or will be registered in the case of a vessel or aircraft under construction, and
              (3) To the country, including a national thereof, which is currently controlling, leasing, or chartering the vessel or aircraft.
              (b) Exception for U.S. and Canadian carriers. (1) Notwithstanding the general end-use prohibition in paragraph (a) of this section, export and reexport may be made of the commodities described in paragraph (b)(3) of this section, for use by or on a specific vessel or plane of U.S. or Canadian registry located at any seaport or airport outside the United States or Canada except a port in Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided that such commodities are 6
                 all of the following:

                  6 Where a license is required, see §§ 748.2 and 748.4(g) of the EAR.

              (i) Ordered by the person in command or the owner or agent of the vessel or plane to which they are consigned;
              (ii) Intended to be used or consumed on board such vessel or plane and necessary for its proper operation;
              (iii) In usual and reasonable kinds and quantities during times of extreme need, except that usual and reasonable quantities of ship's bunkers or aviation fuel are considered to be only that quantity necessary for a single onward voyage or flight; and
              (iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of the commodities, other than fuel, is exported by U.S. airlines to their own aircraft abroad for their own use, see 15 CFR 30.37(o) of the FTR.
              (2) Exports to U.S. or Canadian Airline's Installation or Agent. Exports and reexports of the commodities described in paragraph (e) of this section, except fuel, may be made to a U.S. or Canadian airline's installation or agent in any foreign destination except Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided such commodities are all of the following:
              (i) Ordered by a U.S. or Canadian airline and consigned to its own installation or agent abroad;
              (ii) Intended for maintenance, repair, or operation of aircraft registered in either the United States or Canada, and necessary for the aircraft's proper operation, except where such aircraft is located in, or owned, operated or controlled by, or leased or chartered to, Country Group D:1 (excluding the PRC) (see supplement no. 1 to part 740) or a national of such country;
              (iii) In usual and reasonable kinds and quantities; and
              (iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of these commodities is exported by U.S. airlines to their own installations and agents abroad for use in their aircraft operations, see 15 CFR 30.37(o) of the FTR.
              (3) Applicable commodities. This § 744.7 applies to the commodities listed subject to the provisions in paragraph (b) of this section:
              (i) Fuel, including crude oil, petroleum products other than crude oil that are of non-Naval Petroleum Reserves origin or derivation (see § 754.3 of the EAR), and blends of crude oil with such petroleum products;
              (ii) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements, provided that any petroleum products other than crude oil which are listed in supplement no. 1 to part 754 of the EAR are of non-Naval Petroleum Reserves origin or derivation (see § 754.3 of the EAR);
              (iii) Medical and surgical supplies;
              (iv) Food stores;
              (v) Slop chest articles;
              (vi) Saloon stores or supplies; and
              (vii) Equipment and spare parts.
              [61 FR 12802, Mar. 25, 1996, as amended at 65 FR 38160, June 19, 2000; 68 FR 50472, Aug. 21, 2003; 70 FR 67348, Nov. 7, 2005; 79 FR 4616, Jan. 29, 2014; 81 FR 29486, May 12, 2016]

              § 744.8
              Restrictions on exports and reexports to persons designated pursuant to Executive Order 13382—Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters.

              BIS maintains restrictions on exports and reexports to persons designated in or pursuant to Executive Order 13382 of June 28, 2005 (Weapons of Mass Destruction Proliferators and their Supporters). Executive Order 13382 blocks the property and interests in property of persons named in or designated pursuant to Executive Order 13382 in the United States or that comes within the United States or within the possession or control of United States persons. The parties whose property or interests in property are blocked pursuant to Executive Order 13382 are identified by the Department of the Treasury, Office of Foreign Assets Control (OFAC) in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD]. This section imposes export and reexport license requirements for items subject to the EAR on those same parties to further the objectives of Executive Order 13382.
              (a) License requirement(s) and authorization—(1) EAR license requirement. A license is required for the export or reexport of any item subject to the EAR to any party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD].
              (2) BIS authorization. (i) To avoid duplication, U.S. persons are not required to seek separate authorization from BIS for an export or reexport to a party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD] of an item subject to the EAR. If OFAC authorizes an export from the United States or an export or reexport by a U.S. person to a party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD], such authorization constitutes authorization for purposes of the EAR as well.
              (ii) U.S. persons must seek authorization from BIS for the export or reexport to a party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD] of any item subject to the EAR that is not subject to OFAC's regulatory authority pursuant to Executive Order 13382.
              (iii) Non-U.S. persons must seek authorization from BIS for any export from abroad or reexport to a party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD] of any item subject to the EAR.
              (iv) Any export or reexport to a party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD] of any item subject to the EAR and not authorized by OFAC is a violation of the EAR.
              (v) Any export or reexport by a U.S. person to a party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD] of any item subject to the EAR that is not subject to regulation by OFAC and not authorized by BIS is a violation of the EAR. Any export from abroad or reexport by a non-U.S. person to a party listed in appendix A to 31 CFR chapter V with the bracketed suffix [NPWMD] of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
              (3) Relation to other EAR license requirements. The license requirements in this section supplement any other requirements set forth elsewhere in the EAR.
              (b) License exceptions. No license exceptions are available for the EAR license requirements imposed in this section.
              (c) Licensing policy. Applications for EAR licenses required by this section generally will be denied. You should consult with OFAC concerning transactions subject to OFAC licensing requirements.
              (d) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.
              [74 FR 2357, Jan. 15, 2009]

              § 744.9
              Restrictions on exports, reexports, and transfers (in-country) of certain cameras, systems, or related components.
              (a) General prohibitions. (1) In addition to the applicable license requirements for national security, regional stability, anti-terrorism and United Nations embargo reasons in §§ 742.4, 742.6, 742.8, 746.1(b), and 746.3 of the EAR, a license is required to export, reexport, or transfer (in-country) to any destination other than Canada commodities described in ECCNs 0A987 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003, or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d if at the time of export, reexport, or transfer, the exporter, reexporter, or transferor knows or is informed that the item will be or is intended to be:

              (i) Used by a “military end-user,” as defined in paragraph (d) of this section; or
              (ii) Incorporated into a “military commodity” controlled by ECCN 0A919.
              (2) The license requirement described in paragraph (a)(1) of this section does not apply to exports, reexports, or transfers (in-country) of items described in that paragraph when such items are being reexported or transferred as part of a military deployment by a unit of the government of a country in Country Group A:1 (see Supplement No. 1 to part 740).
              (b) Additional prohibition on exporters, reexporters, or transferors informed by BIS. BIS may inform an exporter, reexporter, or transferor, either individually by specific notice or through amendment to the EAR, that a license is required for the export, reexport, or transfer of commodities described in ECCNs 0A987 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003, or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d to specified end users, because BIS has determined that there is an unacceptable risk of diversion to the users or unauthorized incorporation into the “military commodities” described in paragraph (a) 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.
              (c) License review standard. Applications for licenses required by this section will be reviewed by applying the policies that would be applied under the International Traffic in Arms Regulations (22 CFR Parts 120-130).
              (d) 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, or any person or entity whose actions or functions are intended to support “military end-uses” as defined in § 744.17(d).
              (e) Exception. Shipments subject to the prohibitions in paragraphs (a) and (b) of this section that are consigned to and for the official use of the U.S. Government authorized pursuant to § 740.11(b)(2)(ii) of the EAR may be made under License Exception GOV. No other license exceptions apply to the prohibitions described in paragraphs (a) and (b) of this section.
              [74 FR 23948, May 22, 2009; 77 FR 39369, July 2, 2012, as amended at 81 FR 70333, Oct. 12, 2016; 83 FR 53751, Oct. 24, 2018]

              § 744.10
              Restrictions on certain entities in Russia.
              (a) General prohibition. Certain entities in Russia are included in supplement no. 4 to this part 744 (Entity List). (See also § 744.1(c) of the EAR.) A license is required, to the extent specified on the Entity List, to export, reexport, or transfer (in-country) any item subject to the EAR to such entities.
              (b) Exceptions. No License Exceptions apply to the prohibition described in paragraph (a) of this section.
              (c) License review standard. Applications to export, reexport, or transfer (in-country) items subject to the EAR to these entities will be reviewed with a presumption of denial.
              [64 FR 14605, Mar. 26, 1999, as amended at 74 FR 45992, Sept. 8, 2009]

              § 744.11
              License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States.

              BIS may impose foreign policy export, reexport, and transfer (in-country) license requirements, limitations on availability of license exceptions, and set license application review policy based on the criteria in this section. Such requirements, limitations and policy are in addition to those set forth elsewhere in the EAR. License requirements, limitations on use of license exceptions and license application review policy will be imposed under this section by adding an entity to the Entity List (supp. no. 4 to this part) with a reference to this section and by stating on the Entity List the license requirements and license application review policy that apply to that entity. BIS may remove an entity from the Entity List if it is no longer engaged in the activities described in paragraph (b) of this section and is unlikely to engage in such activities in the future. BIS may modify the license exception limitations and license application review policy that applies to a particular entity to implement the policies of this section. BIS will implement the provisions of this section in accordance with the decisions of the End-User Review Committee or, if appropriate in a particular case, in accordance with the decisions of the body to which the End-User Review Committee decision is escalated. The End-User Review Committee will follow the procedures set forth in supplement no. 5 to this part.
              (a) License requirement, availability of license exceptions, and license application review policy. A license is required, to the extent specified on the Entity List, to export, reexport, or transfer (in-country) any item subject to the EAR to an entity that is listed on the Entity List in an entry that contains a reference to this section. License exceptions may not be used unless authorized in that entry. Applications for licenses required by this section will be evaluated as stated in that entry in addition to any other applicable review policy stated elsewhere in the EAR.
              (b) Criteria for revising the Entity List. Entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entity has been involved, is involved, or poses a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such entities may be added to the Entity List pursuant to this section. This section may not be used to place on the Entity List any party to which exports or reexports require a license pursuant to § 744.12, § 744.13, § 744.14 or § 744.18 of this part. This section may not be used to place on the Entity List any party if exports or reexports to that party of items that are subject to the EAR are prohibited by or require a license from another U.S. government agency. This section may not be used to place any U.S. person, as defined in § 772.1 of the EAR, on the Entity List. Examples (1) through (5) of this paragraph provide an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.
              (1) Supporting persons engaged in acts of terror.
              (2) Actions that could enhance the military capability of, or the ability to support terrorism of governments that have been designated by the Secretary of State as having repeatedly provided support for acts of international terrorism.
              (3) Transferring, developing, servicing, repairing or producing conventional weapons in a manner that is contrary to United States national security or foreign policy interests or enabling such transfer, service, repair, development, or production by supplying parts, components, technology, or financing for such activity.
              (4) Preventing accomplishment of an end use check conducted by or on behalf of BIS or the Directorate of Defense Trade Controls of the Department of State by: precluding access to; refusing to provide information about; or providing false or misleading information about parties to the transaction or the item to be checked. The conduct in this example includes: expressly refusing to permit a check, providing false or misleading information, or engaging in dilatory or evasive conduct that effectively prevents the check from occurring or makes the check inaccurate or useless. A nexus between the conduct of the party to be listed and the failure to produce a complete, accurate and useful check is required, even though an express refusal by the party to be listed is not required.

              (5) Engaging in conduct that poses a risk of violating the EAR when such conduct raises sufficient concern that the End-User Review committee believes that prior review of exports, reexports, or transfers (in-country) involving the party and the possible imposition of license conditions or license denial enhances BIS's ability to prevent violations of the EAR.
              [73 FR 49321, Aug. 21, 2008, as amended at 74 FR 45992, Sept. 8, 2009]

              § 744.12
              Restrictions on exports and reexports to persons designated in or pursuant to Executive Order 13224 (Specially Designated Global Terrorist) (SDGT).

              BIS maintains restrictions on exports and reexports to persons designated in or pursuant to Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism). These persons include individuals and entities listed in the Annex to Executive Order 13224, as well as persons subsequently designated by the Secretary of State or Secretary of the Treasury pursuant to criteria set forth in the Order. Pursuant to Executive Order 13224, the Department of the Treasury's Office of Foreign Assets Control (OFAC) maintains 31 CFR part 594, the Global Terrorism Sanctions Regulations. OFAC announces the names of persons designated pursuant to Executive Order 13224 in the Federal Register and includes such persons in Appendix A to 31 CFR Chapter V, which lists persons subject to various sanctions programs administered by OFAC. The Department of State also announces the names of foreign persons designated pursuant to Executive Order 13224 in the Federal Register. All persons designated in or pursuant to Executive Order 13224 are identified in Appendix A to 31 CFR Chapter V by the bracketed initials [SDGT] and are also known as Specially Designated Global Terrorists (SDGTs).
              (a) License requirement(s). (1) A license requirement applies to the export or reexport to an SDGT of any item subject to the EAR.
              (2) To avoid duplication, U.S. persons are not required to seek separate authorization for an export or reexport to an SDGT of an item subject to both the EAR and OFAC's regulatory authority pursuant to Executive Order 13224. Therefore, if OFAC authorizes an export from the United States or an export or reexport by a U.S. person to an SDGT, no separate authorization from BIS is necessary.
              (3) U.S. persons must seek authorization from BIS for the export or reexport to an SDGT of any item subject to the EAR that is not subject to OFAC's Global Terrorism Sanctions Regulations in 31 CFR part 594.
              (4) Non-U.S. persons must seek authorization from BIS for any export from abroad or reexport to an SDGT of any item subject to the EAR.
              (5) Any export or reexport to an SDGT of any item subject to both the EAR and OFAC's regulatory authority pursuant to Executive Order 13224 and not authorized by OFAC is a violation of the EAR.
              (6) Any export or reexport by a U.S. person to an SDGT of any item subject to the EAR that is not subject to regulation by OFAC and not authorized by BIS is a violation of the EAR. Any export from abroad or reexport by a non-U.S. person to an SDGT of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
              (7) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
              (b) Exceptions. No License Exceptions or other BIS authorization are available for any export or reexport to an SDGT of any item subject to the EAR.
              (c) Licensing policy. Applications for licenses for the export or reexport to an SDGT of any item subject to the EAR generally will be denied. You should consult with OFAC concerning transactions subject to OFAC licensing requirements.
              (d) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.

                Note to § 744.12:
                This section does not implement, construe, or limit the scope of any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 2339A, and does not excuse any person from complying with any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 18 U.S.C. 2339A.

              [68 FR 34194, June 6, 2003]

              § 744.13
              Restrictions on exports and reexports to persons designated pursuant to Executive Order 12947 (Specially Designated Terrorist) (SDT).
              Consistent with the purpose of Executive Order 12947 of January 23, 1995, BIS maintains restrictions on exports and reexports to Specially Designated Terrorists (SDTs). Executive Order 12947 prohibits transactions by U.S. persons with terrorists who threaten to disrupt the Middle East peace process. Pursuant to the Executive Order, the Department of the Treasury, Office of Foreign Assets Control (OFAC), maintains 31 CFR part 595, the Terrorism Sanctions Regulations. In Appendix A to 31 CFR Chapter V, pursuant to 31 CFR part 595, these Specially Designated Terrorists are identified by the bracketed suffix initials [SDT]. The requirements set forth below further the objectives of Executive Order 12947.
              (a) License requirement(s). (1) A license requirement applies to the export or reexport to an SDT of any item subject to the EAR.
              (2) To avoid duplication, U.S. persons are not required to seek separate authorization for an export or reexport to an SDT of an item subject both to the EAR and to OFAC's Terrorism Sanctions Regulations in 31 CFR part 595. Therefore, if OFAC authorizes an export or reexport of an item by a U.S. person to a SDT, no separate authorization from BIS is necessary.
              (3) U.S. persons must seek authorization from BIS for the export or reexport to an SDT of an item subject to the EAR but not subject to OFAC's Terrorism Sanctions Regulations in 31 CFR part 595.
              (4) Non-U.S. persons must seek authorization from BIS for the export from abroad or reexport to an SDT of any item subject to the EAR.
              (5) Any export or reexport to an SDT by a U.S. person of any item subject both to the EAR and OFAC's Terrorism Sanctions Regulations in 31 CFR part 595 and not authorized by OFAC is a violation of the EAR.
              (6) Any export or reexport by a U.S. person to an SDT of any item subject to the EAR that is not subject to OFAC's Terrorism Sanctions Regulations in 31 CFR part 595 and not authorized by BIS is a violation of the EAR. Any export from abroad or reexport by a non-U.S. person to an SDT of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
              (7) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
              (b) Exceptions. No License Exceptions or other BIS authorization are available for export or reexport to an SDT of any item subject to the EAR.
              (c) Licensing policy. Applications for licenses for the export or reexport to an SDT of any item subject to the EAR generally will be denied. You should consult with OFAC concerning transactions subject to OFAC licensing requirements.
              (d) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.

                Note to § 744.13:
                This section does not implement, construe, or limit the scope of any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 2339A, and does not excuse any person from complying with any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 18 U.S.C. 2339A.

              [68 FR 34194, June 6, 2003]

              § 744.14
              Restrictions on exports and reexports to designated Foreign Terrorist Organizations (FTOs).

              Consistent with the objectives of section 219 of the Immigration and Nationality Act, as amended (INA) (8 U.S.C. 1189), and section 303 of the Antiterrorism and Effective Death Penalty Act 1996, as amended (Anti-Terrorism Act) (18 U.S.C. 2339B) (Public Law 104-132. 110 Stat. 1214-1319), BIS maintains restrictions on exports and reexports to organizations designated as Foreign Terrorist Organizations (FTOs) pursuant to section 219 of the INA. The Department of the Treasury, Office of Foreign Assets Control, maintains 31 CFR part 597, the Foreign Terrorist Organizations Sanctions Regulations, requiring U.S. financial institutions to block all financial transactions involving assets of designated FTOs within the possession or control of such U.S. financial institutions. Section 303 of the Anti-Terrorism Act prohibits persons within the United States or subject to U.S. jurisdiction from knowingly providing material support or resources to a designated FTO and makes violations punishable by criminal penalties under title 18, United States Code. These designated FTOs are listed in Appendix A to 31 CFR Chapter V and identified by the bracketed initials [FTO]. A designation of a foreign organization determined to meet the criteria of section 219 of the INA takes effect upon publication in the Federal Register by the Secretary of State, or the Secretary's designee.
              (a) License requirement(s). (1) A license requirement applies to the export or reexport to an FTO of any item subject to the EAR.
              (2) U.S. persons must seek authorization from BIS for the export or reexport to an FTO of any item subject to the EAR.
              (3) Non-U.S. persons must seek authorization from BIS for the export from abroad or reexport to an FTO of any item subject to the EAR.
              (4) Any export or reexport to an FTO by any person of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
              (5) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
              (b) Exceptions. No License Exceptions or other BIS authorization for items described by paragraph (a) of this section are available for exports or reexports to FTOs.
              (c) Licensing policy. Applications for exports and reexports to FTOs of all items identified by paragraph (a) of this section will generally be denied, to the extent they constitute material support or resources, as defined in 18 U.S.C. 2339A(b).
              (d) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.
              (e) FTOs also designated as SDTs or SDGTs. In cases in which an FTO is also an SDT, as described in § 744.13, or an SDGT, as described in § 744.12, the license requirements and licensing policy set forth in § 744.13 or § 744.12 will apply.

                Note to § 744.14:
                This section does not implement, construe, or limit the scope of any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 2339A, and does not excuse any person from complying with any criminal statute, including (but not limited to) 18 U.S.C. 2339B(a)(1) and 18 U.S.C. 2339A.

              [68 FR 34195, June 6, 2003]

              § 744.15
              Restrictions on exports, reexports and transfers (in-country) to persons listed on the unverified list.
              (a) General requirement. In addition to the requirements set forth elsewhere in the EAR, exports, reexports, or transfers (in-country) subject to the EAR involving parties to the transaction who are listed on the Unverified List (UVL) must be made in accordance with paragraph (b) of this section. The names and addresses of foreign persons subject to end-user controls based on the criteria described in paragraph (c) of this section are identified in the Unverified List found in supplement no. 6 to this part. Requirements found elsewhere in the EAR also apply, including but not limited to any license requirements, the record filing requirements pursuant to § 758.1(b)(8), and the restrictions on license exceptions described in § 740.2(a)(17) of the EAR.
              (b) UVL statement. Before proceeding with any export, reexport, or transfer (in-country) subject to the EAR that is not subject to a license requirement, involving a person listed on the Unverified List as a party described in § 748.5 of the EAR, an exporter, reexporter, or transferor (in-country) must obtain a UVL statement from such person, according to the provisions set forth in this section. The statement must be retained in accordance with part 762 of the EAR.

              (1) One UVL statement may be used for multiple exports, reexports, and transfers (in-country) of the same items between the same parties, so long as the party names, the description(s) of the items and the ECCNs are correct. If one UVL statement is used for multiple exports, reexports, and transfers (in-country), the exporter, reexporter, and transferor must maintain a log or other record that identifies each export, reexport, and transfer (in-country) made pursuant to this section and the specific UVL statement that is associated with each. The log or record must be retained in accordance with Part 762 of the EAR.
              (2) The UVL statement must be in writing, signed and dated by an individual of sufficient authority to legally bind the UVL party, and state the following:
              (i) Name of UVL party; complete physical address, to include shipping, corporate, and end user addresses, if different (simply listing a post office box is insufficient); telephone number; fax number; email address; Web site (if available); and name and title of individual signing the UVL statement.
              (ii) Agrees not to use the item(s) for any use prohibited by the United States Export Administration Regulations (EAR), 15 CFR Parts 730-772, and agrees not to reexport or transfer (in-country) the item(s) to any destination, use or user prohibited by the EAR.
              (iii) Declares that the end use, end user, and country of ultimate destination of the item(s) subject to the EAR are as follows: [INSERT END USE, END USER, AND COUNTRY OF ULTIMATE DESTINATION].
              (iv) Agrees to cooperate with end-use checks, including a Post-Shipment Verification, conducted by or on behalf of the Bureau of Industry and Security, U.S. Department of Commerce, for any item subject to the EAR in transactions to which they were a party in the last five years. This cooperation includes facilitating the timely conduct of the check and providing full and accurate information concerning the disposition of items subject to the EAR.
              (v) Agrees to provide copies of this document and all other export, reexport or transfer (in-country) records required to be retained in part 762 of the EAR.
              (vi) Certifies that the individual signing the UVL statement has sufficient authority to legally bind the party.
              (c) Criteria for revising the Unverified List. (1) Foreign persons who are parties to an export, reexport, and transfer (in-country) subject to the EAR may be added to the Unverified List if BIS or federal officials acting on BIS's behalf cannot verify the bona fides (i.e., legitimacy and reliability relating to the end use and end user of items subject to the EAR) of such persons because an end-use check, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for reasons outside of the U.S. Government's control. Examples in paragraphs (c)(1)(i) through (iii) of this section provide an illustrative list of those circumstances.
              (i) During the conduct of an end-use check, the subject of the check is unable to demonstrate the disposition of items subject to the EAR.
              (ii) The existence or authenticity of the subject of an end-use check cannot be verified (e.g., the subject of the check cannot be located or contacted).
              (iii) Lack of cooperation by the host government authority prevents an end-use check from being conducted.

              (2) BIS will remove a person from the Unverified List when BIS is able to verify the bona fides of the listed person as an end user, consignee, or other party to exports, reexports, or transfers (in-country) involving items subject to the EAR by completing a PLC or PSV. In the limited circumstance involving a PLC or PSV that cannot be completed due to lack of host government cooperation, an alternative bona fides verification process may be determined by BIS to be sufficient. A determination to remove a person from the Unverified List based on the criteria in this paragraph is separate from any determination made by BIS pursuant to § 744.11(b) of the EAR, and must be requested through paragraph (d) of this section.
              (d) Procedure for requesting removal of a person on the Unverified List. Any person listed on the Unverified List may request that its listing be amended or removed.

              (1) All such requests, including reasons therefor and information that verifies the bona fides, i.e., legitimacy and reliability of the person listed on the Unverified List as an end user, consignee or other party to exports, reexports, and transfers (in-country) of items subject to the EAR, must be in writing and sent to: Director, Office of Enforcement Analysis, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW., Room 4065, Washington, DC 20230, via fax to (202) 482-0971, or by email to UVLRequest@bis.doc.gov.

              (2) The Deputy Assistant Secretary for Export Enforcement will review such requests and will convey the decision on the request to the requester in writing based on an assessment of the listed person's bona fides as a party to exports, reexports, and transfers (in-country) subject to the EAR. That decision will be the final agency action on the request.
              [78 FR 76747, Dec. 19, 2013]

              § 744.16
              Entity List.
              The Entity List (supplement no. 4 to part 744) identifies persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The entities are added to the Entity List pursuant to sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.
              (a) License requirements. The public is hereby informed that in addition to the license requirements for items specified on the Commerce Control List (CCL), you may not export, reexport, or transfer (in-country) items specified on the Entity List to listed entities without a license from BIS. The specific license requirement for each listed entity is identified in the license requirement column on the Entity List in supplement no. 4 to this part.
              (b) License exceptions. No license exceptions are available for exports, reexports or transfers (in-country) to listed entities of specified items, except license exceptions for items listed in § 740.2(a)(5) of the EAR destined to listed Indian or Pakistani entities to ensure the safety of civil aviation and safe operation of commercial passenger aircraft, and in the case of entities added to the Entity List pursuant to § 744.20, to the extent specified on the Entity List.
              (c) License review policy—(1) General review policy. The license review policy for each listed entity is identified in the License Review Policy column on the Entity List.
              (2) [Reserved]
              (d) The End-User Review Committee (ERC). The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, generally makes decisions regarding additions to, removals from, or other modifications to the Entity List.
              (e) Removal or modification requests. Any entity listed on the Entity List may request that its listing be removed or modified. All such requests, including reasons therefor, must be in writing and sent to: Chair, End-User Review Committee, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW., Room 3886, Washington, DC 20230.
              (1) Review. The ERC will review such requests in accordance with the procedures set forth in Supplement No. 5 to this part.
              (2) BIS action. The Deputy Assistant Secretary for Export Administration will convey the decision on the request to the requester in writing. That decision will be the final agency action on the request.
              [81 FR 64695, Sept. 20, 2016]

              § 744.17
              Restrictions on certain exports, reexports and transfers (in-country) of microprocessors and associated “software” and “technology” for “military end uses” and to “military end users.”
              (a) General prohibition. In addition to the license requirements set forth elsewhere in the EAR, you may not export, reexport or transfer (in-country) microprocessors (“microprocessor microcircuits,” “microcomputer microcircuits,” and microcontroller microcircuits having a processing speed of 5 GFLOPS or more and an arithmetic logic unit with an access width of 32 bit or more, including those incorporating “information security” functionality), or associated “software” and “technology” for the “production” or “development” of such microprocessors without a license if, at the time of the export, reexport or transfer (in-country), you know, have reason to know, or are informed by BIS that the item will be or is intended to be used for a 'military end use,' as defined in paragraph (d) of this section, in a destination listed in Country Group D:1 (see supplement No. 1 to part 740 of the EAR); or by a 'military end user,' as defined in paragraph (e) of this section, in a destination listed in Country Group D:1.
              (b) Additional prohibition on exporters or reexporters informed by BIS. BIS may inform an exporter, reexporter or transferor, either individually by specific notice or through amendment to the EAR, that a license is required for export, reexport or transfer (in-country) of items described in paragraph (a) of this section to specified end users, because BIS has determined that there is an unacceptable risk of diversion to the end uses or end users described in paragraph (a) 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. The absence of any such notification does not excuse the exporter, reexporter or transferor from compliance with the license requirements of paragraph (a) of this section.
              (c) License review standards. There is a presumption of denial for applications to export, reexport or transfer (in-country) items subject to this section.
              (d) Military end-use. In this section, the phrase `military end use' means incorporation into: a military item described on the U.S. Munitions List (USML) (22 CFR part 121, International Traffic in Arms Regulations) or the Wassenaar Arrangement Munitions List (as set out on the Wassenaar Arrangement Web site at http://www.wassenaar.org); commodities classified under ECCNs ending in “A018” or under “600 series” ECCNs; or any commodity that is designed for the “use,” “development,” “production,” or deployment of military items described on the USML, the Wassenaar Arrangement Munitions List or classified under ECCNs ending in “A018” or under “600 series” ECCNs. supplement No. 1 of this part lists examples of 'military end use.'
              (e) 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, or any person or entity whose actions or functions are intended to support 'military end uses' as defined in paragraph (d) of this section.
              (f) Exceptions. The prohibitions described in paragraphs (a) and (b) of this section supersede any license exception or No License Required (NLR) designation that would otherwise apply to a transaction subject to the EAR, except that this license requirement does not apply to exports, reexports or transfers (in-country) of items for or on behalf of the official use by personnel and agencies of the U.S. Government or to agencies of a cooperating government authorized by License Exception GOV pursuant to § 740.11 of the EAR. See § 740.11(b)(1) of the EAR for the definition of 'agency of the U.S. Government' and § 740.11(c)(1) for the definition of 'agency of a cooperating government.'
              [79 FR 75046, Dec. 17, 2014]

              § 744.18
              Restrictions on exports, reexports, and transfers to persons designated in or pursuant to Executive Order 13315.

              Consistent with Executive Order (E.O.) 13315 of August 28, 2003 (“Blocking Property of the Former Iraqi Regime, Its Senior Officials and Their Family Members, and Taking Certain Other Actions”), BIS maintains restrictions on exports, reexports, and transfers to persons designated in or pursuant to E.O. 13315. These persons include individuals and entities listed in the Annex to Executive Order 13315, as well as persons subsequently designated pursuant to criteria set forth in the order. OFAC includes the names of persons designated pursuant to E.O. 13315 in appendix A to 31 CFR chapter V, which lists persons subject to various sanctions programs administered by OFAC. All persons designated in or pursuant to E.O. 13315 are identified in appendix A by the bracketed initials [IRAQ2].
              (a) License requirements. (1) A license requirement applies to the export, reexport, or transfer of any item subject to the EAR to—
              (i) Persons listed in the Annex to E.O. 13315 of August 28, 2003; or
              (ii) Persons determined to be subject to E.O. 13315.
              (2) To avoid duplication, U.S. persons are not required to seek separate BIS authorization for an export, reexport, or transfer to a person identified in paragraph (a) of this section of any item subject to both the EAR and regulations maintained by OFAC. Therefore, if OFAC authorizes an export from the United States or an export, reexport, or transfer by a U.S. person to a person identified in paragraph (a) of this section, no separate authorization from BIS is necessary.
              (3) U.S. persons must seek authorization from BIS for the export, reexport, or transfer to a person identified in paragraph (a) of this section of any item subject to the EAR but not subject to regulations maintained by OFAC.
              (4) Non-U.S. persons must seek authorization from BIS for the export from abroad, reexport, or transfer to a person identified in paragraph (a) of this section of any item subject to the EAR.
              (5) Any export, reexport, or transfer to a person identified in paragraph (a) of this section by a U.S. person of any item subject both to the EAR and regulations maintained by OFAC and not authorized by OFAC is a violation of the EAR.
              (6) Any export, reexport, or transfer by a U.S. person to a person identified in paragraph (a) of this section of any item subject to the EAR that is not subject to regulations maintained by OFAC and not authorized by BIS is a violation of the EAR. Any export from abroad, reexport, or transfer by a non-U.S. person to a person identified in paragraph (a) of this section of any item subject to the EAR and not authorized by BIS is a violation of the EAR.
              (7) These licensing requirements supplement any other requirements set forth elsewhere in the EAR.
              (b) Exceptions. No License Exceptions or other BIS authorizations are available for export, reexport, or transfer to a person identified in paragraph (a) of this section of any item subject to the EAR.
              (c) Licensing policy. Applications for licenses for the export, reexport, or transfer to a person identified in paragraph (a) of this section of any item subject to the EAR will generally be denied. You should consult with OFAC concerning transactions subject to OFAC licensing requirements.
              (d) Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.
              [69 FR 46076, July 30, 2004]

              § 744.19
              Licensing policy regarding persons sanctioned pursuant to specified statutes.

              Notwithstanding any other licensing policy elsewhere in the EAR, BIS will deny any export or reexport license application if any person who is a party to the transaction (i.e., the applicant, other party authorized to receive a license, purchaser, intermediate consignee, ultimate consignee, or end-user) is subject to one or more of the sanctions described in paragraphs (a), (b), (c), and (e) of this section and will deny any export or reexport license application for an item listed on the Commerce Control List with a reason for control of MT if a person who is a party to the transaction is subject to a sanction described in paragraph (d) of this section.
              (a) A sanction issued pursuant to the Iran-Iraq Arms Nonproliferation Act of 1992 (50 U.S.C. 1701 note) that prohibits the issuance of any license to or by the sanctioned person.

              (b) A sanction issued pursuant to the Iran, North Korea, and Syria Nonproliferation Act (50 U.S.C. 1701 note) that prohibits the granting of a license and requires the suspension of an existing license for the transfer to foreign persons of items, the export of which is controlled under the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420), or the Export Administration Regulations.

              (c) A sanction issued pursuant to section 11B(b)(1)(B)(ii) of the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420), that prohibits the issuance of new licenses for exports to the sanctioned person of items controlled pursuant to the Export Administration Act of 1979, as amended.
              (d) A sanction issued pursuant to section 11B(b)(1)(B)(i) of the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420), that prohibits the issuance of new licenses for exports to the sanctioned person of MTCR Annex equipment or technology controlled pursuant to the Export Administration Act of 1979, as amended.
              (e) A sanction issued pursuant to the Iran Sanctions Act of 1996 (50 U.S.C. 1701 note) that prohibits the issuance of a specific license or grant of any other specific permission or authority to export any goods or technology to a sanctioned person under the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420).
              [77 FR 5388, Feb. 3, 2012]

              § 744.20
              License requirements that apply to certain sanctioned entities.
              BIS may impose, as foreign policy controls, export, reexport, and transfer (in-country) license requirements and set licensing policy with respect to certain entities that have been sanctioned by the State Department. Such license requirements and policy are in addition to those imposed elsewhere in the EAR. License requirements and licensing policy may be imposed pursuant to this section even when the sanction and the legal authority under which the State Department imposed the sanction do not require or authorize the imposition of any license requirement or licensing policy. License requirements and licensing policy will be imposed pursuant to this section by adding an entity to the Entity List in accordance with paragraphs (a), (b), and (c) of this section.
              (a) General requirement. Certain entities that have been sanctioned by the State Department are listed in supplement no. 4 to this part (the Entity List) with a reference to this section. A license is required, to the extent specified on the Entity List, to export, reexport, or transfer (in-country) any item to such entities.
              (b) License Exceptions. No license exception may be used to export, reexport, or transfer (in-country) to such entities unless specifically authorized on the Entity List.
              (c) Licensing policy. Applications to export, reexport, or transfer (in-country) to such entities will be reviewed according to the licensing policy set forth on the Entity List.
              [70 FR 10867, Mar. 7, 2005, as amended at 74 FR 45992, Sept. 8, 2009]

              § 744.21
              Restrictions on certain 'Military end uses' in the People's Republic of China (PRC) or for a 'Military end use' or 'Military end user' in Russia or Venezuela.
              (a)(1) 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 listed in supplement no. 2 to part 744 to the PRC, Russia or Venezuela without a license if, at the time of the export, reexport, or transfer (in-country), either:
              (i) You have “knowledge,” as defined in § 772.1 of the EAR, that the item is intended, entirely or in part, for a 'military end use,' as defined in paragraph (f) of this section, in the PRC or for a 'military end use' or 'military end user' in Russia or Venezuela; or
              (ii) You have been informed by BIS, as described in paragraph (b) of this section, that the item is or may be intended, entirely or in part, for a 'military end use' in the PRC or for a 'military end use' or 'military end-user' in Russia or Venezuela.
              (2) General prohibition. In addition to the license requirements for 9x515 and “600 series” items specified on the Commerce Control List (CCL), you may not export, reexport, or transfer (in-country) any 9x515 or “600 series” item, including items described in a .y paragraph of a 9x515 or “600 series” ECCN, to the PRC, Russia or Venezuela without a license. The use in, with, or for the International Space Station (ISS) for exports, reexports or transfers within Russia is not within the scope of this paragraph's general prohibition, including launch to the ISS. (See
                § 740.11(e)(1) of the EAR for a definition of the ISS).
              (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 because there is an unacceptable risk of use in or diversion to 'military end use' activities in the PRC or for a 'military end use' or 'military end user' in Russia or Venezuela. Specific notice will 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 written notice within two working days signed by the Deputy Assistant Secretary for Export Administration or the Deputy Assistant Secretary's designee. The absence of BIS notification does not excuse the exporter from compliance with the license requirements of paragraph (a) of this section.
              (c) License exception. Despite 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 provisions of License Exception GOV set forth in § 740.11(b)(2)(i) and (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 § 744.21 of the EAR (Restrictions on Certain Military End Uses in the People's Republic of China or for a 'Military End Use' or 'Military End User' in Russia or Venezuela).” In addition, either in the additional information block of the application or in an attachment to the application, you must include for the PRC all known information concerning the military end use of the item(s) and for Russia or Venezuela, all known information concerning the 'military end use' and 'military end users' 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 standards. (1) Applications to export, reexport, or transfer (in-country) items described in paragraph (a) of this section will be reviewed on a case-by-case basis to determine whether the export, reexport, or transfer (in-country) would make a material contribution to the military capabilities of the PRC, Russia, or Venezuela, and would result in advancing the country's military activities contrary to the national security interests of the United States. When it is determined that an export, reexport, or transfer (in-country) would make such a contribution, the license will be denied.
              (2) Applications may be reviewed under chemical and biological weapons, nuclear nonproliferation, or missile technology review policies, as set forth in §§ 742.2(b)(4), 742.3(b)(4) and 742.5(b)(4) of the EAR, if the end use may involve certain proliferation activities.
              (3) Applications for items requiring a license for other reasons that are destined to the PRC for a 'military end use' or that are destined to Russia or Venezuela for a 'military end use' or 'military end user' also will be subject to the review policy stated in paragraph (e)(1) of this section.
              (f) Military end use. In this section, 'military end use' means: incorporation into a military item described on the U.S. Munitions List (USML) (22 CFR part 121, International Traffic in Arms Regulations); incorporation into a military item described on the Wassenaar Arrangement Munitions List (as set out on the Wassenaar Arrangement Web site at http://www.wassenaar.org); incorporation into items classified under ECCNs ending in “A018” or under “600 series” ECCNs; or for the “use,” “development,” or “production” of military items described on the USML or the Wassenaar Arrangement Munitions List, or items classified under ECCNs ending in “A018” or under “600 series” ECCNs. 'Military end use' also means deployment of items classified under ECCN 9A991 as set forth in supplement no. 2 to part 744.

                Note to paragraph (f) of this section:
                (1) As defined in Part 772 of the EAR, “use” means operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing; “development” is related to all stages prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts; and “production” means all production stages, such as: product engineering, manufacturing, integration, assembly (mounting), inspection, testing, quality assurance.
                (2) For purposes of this section, “operation” means to cause to function as intended; “installation” means to make ready for use, and includes connecting, integrating, incorporating, loading software, and testing; “maintenance” means performing work to bring an item to its original or designed capacity and efficiency for its intended purpose, and includes testing, measuring, adjusting, inspecting, replacing parts, restoring, calibrating, overhauling; and “deployment” means placing in battle formation or appropriate strategic position.

              (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, or any person or entity whose actions or functions are intended to support 'military end uses' as defined in paragraph (f) of this section.
              (h) Effects on contracts. Venezuela: Transactions involving the export, reexport or transfer (in country) of items to or within Venezuela are not subject to the provisions of § 744.21 if the contracts for such transactions were signed prior to November 7, 2014.
              [79 FR 66289, Nov. 7, 2014, as amended at 79 FR 77866, Dec. 29, 2014; 80 FR 39955, July 13, 2015]

              § 744.22
              [Reserved]

              Pt. 744, Supp. No. 1
              Supplement No. 1 to Part 744—Military End-Use Examples for § 744.17
              (a) Examples of military end-uses (as described in § 744.17 (d) of this part) of general-purpose microprocessors classified as ECCN 3A991.a.1 includes employing such microprocessors in the “use”, “development”, “production”, or deployment of:

              (1) Cruise missiles;
              (2) Electronic suites of military aircraft and helicopters;
              (3) Radar for searching, targeting, or tracking systems;
              (4) Command/control/communications or navigation systems;
              (5) Unmanned aerial vehicles capable of performing military reconnaissance, surveillance, or combat support;
              (6) Rocket or missile systems;
              (7) Electronic or information warfare systems; or
              (8) Intelligence, reconnaissance, or surveillance systems suitable for supporting military operations.
              (b) [Reserved]
              [68 FR 1797, Jan. 14, 2003]

              Pt. 744, Supp. No. 2
              Supplement No. 2 to Part 744—List of Items Subject to the Military End-Use License Requirement of § 744.21
              The following items, as described, are subject to the military end-use license requirement in § 744.21.
              (1) Category 1—Materials, Chemicals, Microorganisms, and Toxins
              (i) 1A290 Depleted uranium (any uranium containing less than 0.711% of the isotope U-235) in shipments of more than 1,000 kilograms in the form of shielding contained in X-ray units, radiographic exposure or teletherapy devices, radioactive thermoelectric generators, or packaging for the transportation of radioactive materials.
              (ii) 1C990 Limited to fibrous and filamentary materials other than glass, aramid or polyethylene not controlled by 1C010 or 1C210, for use in “composite” structures and with a specific modulus of 3.18 × 106m or greater and a specific tensile strength of 7.62 × 104m or greater.
              (iii) 1C996 Hydraulic fluids containing synthetic hydrocarbon oils, having all the characteristics in the List of Items Controlled.
              (iv) 1D993 “Software” specially designed for the “development”, “production”, or “use” of equipment or materials controlled by 1C210.b, or 1C990.
              (v) 1D999 Limited to specific software controlled by 1D999.b for equipment controlled by 1B999.e that is specially designed for the production of prepregs controlled in Category 1, n.e.s.

              (vi) 1E994 Limited to “technology” for the “development”, “production”, or “use” of fibrous and filamentary materials other than glass, aramid or polyethylene controlled by 1C990.

              (2) Category 2—Materials Processing
              (i) 2A991 Limited to bearings and bearing systems not controlled by 2A001 and with operating temperatures above 573K (300 °C).
              (ii) 2B991 Limited to “numerically-controlled” machine tools having “positioning accuracies”, with all compensations available, less (better) than 9µ along any linear axis; and machine tools controlled under 2B991.d.1.a.
              (iii) 2B992 Non-“numerically controlled” machine tools for generating optical quality surfaces, and specially designed components therefor.
              (iv) 2B996 Limited to dimensional inspection or measuring systems or equipment not controlled by 2B006 with measurement uncertainty equal to or less (better) than (1.7 + L/1000) micrometers in any axes (L measured Length in mm).
              (3) Category 3—Electronics Design, Development and Production
              (i) 3A992.g Limited to digital oscilloscopes and transient recorders, using analog-to-digital conversion techniques, capable of storing transients by sequentially sampling single-shot inputs at greater than 2.5 giga-samples per second.
              (ii) 3A999.c All flash x-ray machines, and components of pulsed power systems designed thereof, including Marx generators, high power pulse shaping networks, high voltage capacitors, and triggers.
              (iii) 3E991 Limited to “technology” according to the General Technology Note for the “development”, “production”, or “use” of digital oscilloscopes and transient recorders with sampling rates greater than 2.5 giga-samples per second, which are controlled by 3A992.g.
              (4) Category 4—Computers
              (i) 4A994 Limited to computers not controlled by 4A001 or 4A003, with an Adjusted Peak Performance (“APP”) exceeding 0.5 Weighted TeraFLOPS (WT).
              (ii) 4D993 “Program” proof and validation “software”, “software” allowing the automatic generation of “source codes”, and operating system “software” that are specially designed for real time processing equipment.
              (iii) 4D994 Limited to “software” specially designed or modified for the “development”, “production”, or “use” of equipment controlled by 4A101.
              (5) Category 5—(Part 1) Telecommunications
              (i) 5A991 Limited to telecommunications equipment designed to operate outside the temperature range from 219K (-54 °C) to 397K (124 °C), which is controlled by 5A991.a., radio equipment using Quadrature-amplitude-modulation (QAM) techniques, which is controlled by 5A991.b.7., and phased array antennae, operating above 10.5 Ghz, except landing systems meeting ICAO standards (MLS), which are controlled by 5A991.f.
              (ii) 5D991 Limited to “software” specially designed or modified for the “development”, “production”, or “use” of equipment controlled by 5A991.a., 5A991.b.7., and 5A991.f., or of “software” specially designed or modified for the “development”, “production”, or “use” of equipment controlled by 5A991.a., 5A991.b.7., and 5A991.f.
              (iii) 5E991 Limited to “technology” for the “development”, “production” or “use” of equipment controlled by 5A991.a., 5A991.b.7., or 5A991.f., or of “software” specially designed or modified for the “development”, “production”, or “use” of equipment controlled by 5A991.a., 5A991.b.7., and 5A991.f.
              (6) Category 6—Sensors and Lasers
              (i) 6A995 “Lasers”, not controlled by 6A005 or 6A205.
              (ii) 6C992 Optical sensing fibers not controlled by 6A002.d.3 which are modified structurally to have a “beat length” of less than 500 mm (high birefringence) or optical sensor materials not described in 6C002.b and having a zinc content of equal to or more than 6% by “mole fraction.”
              (iii) 6A993 Cameras, not controlled by 6A003 or 6A203 as follows (see List of Items Controlled).
              (7) Category 7—Navigation and Avionics
              (i) 7A994 Other navigation direction finding equipment, airborne communication equipment, all aircraft inertial navigation systems not controlled under 7A003 or 7A103, and other avionic equipment, including parts and components, n.e.s.
              (ii) 7B994 Other equipment for the test, inspection, or “production” of navigation and avionics equipment.
              (iii) 7D994 “Software”, n.e.s., for the “development”, “production”, or “use” of navigation, airborne communication and other avionics.
              (iv) 7E994 “Technology”, n.e.s., for the “development”, “production”, or “use” of navigation, airborne communication, and other avionics equipment.
              (8) Category 8—Marine
              (i) 8A992 Limited to underwater systems or equipment, not controlled by 8A001 or 8A002, and “specially designed” “parts” therefor.
              (ii) 8D992 “Software” specially designed or modified for the “development”, “production” or “use” of equipment controlled by 8A992.

              (iii) 8E992 “Technology” for the “development”, “production” or “use” of equipment controlled by 8A992.

              (9) Category 9—Propulsion Systems, Space Vehicles and Related Equipment
              (i) 9A991 Limited to “aircraft”, n.e.s., and gas turbine engines not controlled by 9A001 or 9A101.
              (ii) 9D991 “Software”, for the “development” or “production” of equipment controlled by 9A991 or 9B991.
              (iii) 9E991 “Technology”, for the “development”, “production” or “use” of equipment controlled by 9A991 or 9B991.
              [72 FR 33658, June 19, 2007, as amended at 73 FR 36, Jan. 2, 2008; 74 FR 23948, May 22, 2009; 75 FR 54277, Sept. 7, 2010; 78 FR 13469, Feb. 28, 2013; 79 FR 23, Jan. 2, 2014; 81 FR 85144, Nov. 25, 2016]

              Pt. 744, Supp. No. 3

              Supplement No. 3 to Part 744—Countries Not Subject to Certain Nuclear End-Use Restrictions in § 744.2(a)

                Australia
                Austria
                Belgium
                Canada
                Denmark
                Finland
                France
                Germany
                Greece
                Iceland
                Ireland
                Italy (includes San Marino and Holy See)
                Japan
                Luxembourg
                Netherlands
                New Zealand
                Norway
                Portugal
                Spain
                Sweden
                Turkey
                United Kingdom

              [61 FR 12802, Mar. 25, 1996, as amended at 62 FR 25459, May 9, 1997; 66 FR 18402, Apr. 9, 2001]

              Pt. 744, Supp. No. 4
              Supplement No. 4 to Part 744—Entity List
              This Supplement lists certain entities subject to license requirements for specified items under this part 744 and part 746 of the EAR. License requirements for these entities include exports, reexports, and transfers (in-country) unless otherwise stated. This list of entities is revised and updated on a periodic basis in this Supplement by adding new or amended notifications and deleting notifications no longer in effect.

                  Country
                  Entity
                  License requirement
                  License reviewpolicy

                    Federal Register citation

                  AFGHANISTAN
                  Abdul Satar Ghoura, 501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan; and Flat No. 41 Block No. 24 Macroyan 3, Kabul, Afghanistan. (See alternate addresses under Pakistan).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Afghan-German Construction Company, Golaye Park, Shari Naw, Kabul, Afghanistan, and Dasht Qala, Takhar Province, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR).
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Assadullah Majed, 42S WD 18476 22167 Kabul, Afghanistan; and A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Emal Bilal Construction Company (EBCC), a.k.a., the following two aliases:—Imal Bilal Road Construction Company; and

                    —Aimal and Balal Company.

                     Kolola Pushta, Charahi Gul-e-Surkh, Kabul, Afghanistan; and Maidan Sahr, Hetefaq Market, Paktiya, Afghanistan.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14.

                  Emal Bilal Mangal, a.k.a., the following three aliases:—Imal Bilal; and

                    —Aimal Balal; and

                    —Bellal Mangal.

                     Kolola Pushta, Charahi Gul-e-Surkh, Kabul, Afghanistan; and Maidan Sahr, Hetefaq Market, Paktiya, Afghanistan.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14.

                  Fazal Rahim Farid, a.k.a., the following three aliases:—Fazel Rahim Farid;
                    —Farid; and
                    —Engineer Idris.

                     Microrayan 3rd Apt. 45, block #21, Kabul, Afghanistan; and A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan. (See alternate addresses under Pakistan).

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Gulf Gate Sea Cargo LLC, Gulzaad Market Building, 4th Floor, Room 2, Kabul, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 40178, 6/21/16.

                  Habib ur Rahman, a.k.a., the following two aliases:—Hanif; and
                    —Habib Rahman.

                     Ghazni City, Afghanistan.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Haji Khalil Construction Company, Wazir Akbar Khan, Road Number 10, In front of National Bank, District 10, Kabul, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Hanif Computer Zone (HCZ), Ghazni City, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Heim German Afghan Khalil Company, Wazir Akbar Khan, District 10, Kabul, Afghanistan; and Shahr-e-Now, Kabul, Afghanistan, and Paktiyakoot, Jalalabad Road, District #9, Kabul, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Ibrahim Haqqani, a.k.a., the following two aliases:—Hajji Sahib; and

                    —Maulawi Haji Ibrahim Haqqani

                     Afghanistan.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Iqra Computer Products, a.k.a., the following two aliases:—Iqra IT solutions; and
                    —Iqra Computer Store.

                     A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Khalil Zadran, a.k.a., the following eight aliases:—Samar Gul Khalil;
                    —Khalil Samar Gul;
                    —Samer Khalil;
                    —Samer Gul Khalil;
                    —Khlil Khalil;
                    —Kalil Khalil;
                    —Khalil Khualil; and

                    —Haji Khalil.

                     Shahreno, Kabul, Afghanistan. (See alternate address in Pakistan).

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Khalil Zadran Company, a.k.a., the following alias:—Khalil Construction.

                     Afghanistan (See alternate address in Pakistan).

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Kurshid Ghoura, a.k.a., the following two aliases:—Kurshed Ghoura; and
                    —Kursheed Ghoura.

                     501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan; and Flat No. 41 Block No. 24 Macroyan 3, Kabul, Afghanistan. (See alternate addresses under Pakistan).

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Lapcom Computer Stores, A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan. (See alternate address under Pakistan).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Mohammad Jan Khan Mangal, Kolola Pushta, Charahi Gul-e-Surkh, Kabul, Afghanistan; and Maidan Sahr, Hetefaq Market, Paktiya, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14.

                  Mohammad Jan Mangal Construction Company (MMCC), Kolola Pushta, Charahi Gul-e-Surkh, Kabul, Afghanistan; and Maidan Sahr, Hetefaq Market, Paktiya, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 56003, 9/18/14.

                  Muhammad Halim Ghoura, 501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan; and Flat No. 41 Block No. 24 Macroyan 3, Kabul, Afghanistan. (See alternate addresses under Pakistan).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Ologh Beg International Forwarders Ltd., 501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan. (See alternate address under Pakistan).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Onyx Construction Company, Shahr-e-Now, Charahi Haji Yaqoub, In front of the AIB Bank, District 10, Kabul, Afghanistan; and Char Rahi Ansari, Toaward Kolola Poshta, Shar-Naw Kabul, Afghanistan 11496.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Qazi Abdallah, a.k.a., the following four aliases:—Khan Dilawar;
                    —Ibrahim Valid Javaid;
                    —Jawid, Sa'id Jan 'Abd-al-Salam; and
                    —Ibrahim Walid

                     Microrayan 3rd Apt. 45, Block No. 21, Kabul, Afghanistan.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 71869, 11/21/11.

                  Shan Mahmoud Khan Mangal, Kolola Pushta, Charahi Gul-e-Surkh, Kabul, Afghanistan; and Maidan Sahr, Hetefaq Market, Paktiya, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14.

                  Triangle Technologies, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Wahab Karwan Construction Company (WKCC), Qabel Boy, Jalalabad Road, District 9, Kabul, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14.

                  Zurmat Construction Company offices, House No. 319, 10th Street Wazeer Akbar Khan, Kabul, Afghanistan; and Wazir Akbar Khan, District 10, Apartment 319, Kabul, Afghanistan; and Tarin Cot City, Afghanistan; and Behind UNAMA Office, Pir Bagh Office, Gardez, Afghanistan; and House No. 01, Street No. 01, Muhaqeq Road (Behind Pakistan and Turkish Embassies), Mazar-e-Sharif, Afghanistan; and Hazratan Street (Behind Jalalalabad Teaching Hospital), Jalalalabad, Afghanistan, and Aino Mena, Street No. 22 (Blue Color House Left Side of Road), Kandahar, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Zurmat Foundation, House No. 319, 10th Street Wazeer Akbar Khan, Kabul, Afghanistan; and Wazir Muhammad—Akbar Khan, Kabul, Afghanistan; and Wazir Akbar Khan, District 10, Apartment 319, Kabul, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Zurmat Group of Companies, House No. 319, 10th Street Wazeer Akbar Khan, Kabul, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  Zurmat Material Testing Laboratory, House 01, Street 01, Kart-e-3 (opposite of Habibia High School), Dar-ul-Aman Road, Kabul, Afghanistan; and House No. 02, Street No. 01, Kart-e-Malemin, Khandahar, Afghanistan.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 25057, 4/27/12.

                  ARGENTINA
                  Huawei Tech Investment Co., Ltd. Argentina, Av. Leandro N. Alem 815, C1054 CABA, Argentina.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 43495, 8/21/19.

                  ARMENIA
                  Bold Bridge International, LLC, a.k.a. the following alias:—BB Bold Bridge International.

                     Room 463, H. Hakobyan 3, Yerevan, Armenia.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  75 FR 1701, 1/13/10.77 FR 24590, 4/25/12.

                  Markel Closed Joint Stock Company (Markel CJSC),

                     17, Apt 31, Mashtoc Avenue, Yerevan, Armenia, 375002; and 26 Dzorapi Street, Yerevan, 0015, Armenia

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  Vertir Airlines, 8/3 D Angaght Street, 376009, Yerevan, Armenia; and 54-100 Mamikonyan Str., Yerevan, Armenial 79, Armenia.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 75463, 12/12/13.

                  Veteran Avia LLC a.k.a., the following alias:—Veteran Airline.

                     64, Baghramyam Avenue, Apt 16, Yerevan 0033, Armenia; and 1 Eervand Kochari Street Room 1, 375070 Yerevan, Armenia (See also addresses under Greece, Pakistan, and U.K.)

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14. 81 FR 8829, 2/23/16. 82 FR 2887, 1/10/17.

                  Yerevan Telecommunications Research Institute (YETRI) Closed Joint Stock Company (CJSC), 26, Dzorapy Street, 0015, Yerevan, Armenia
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  AUSTRALIA
                  Huawei Technologies (Australia) Pty Ltd., L6 799 Pacific Hwy, Chatswood, New South Wales, 2067, Australia.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 43495, 8/21/19.

                  AUSTRIA
                  Gulf Gate Spedition GmbH, A-1040 Argentinierstrasse 35/6, Vienna, Austria.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 40178, 6/21/16.

                  BAHRAIN
                  Huawei Technologies Bahrain, Building 647 2811 Road 2811, Block 428, Muharraq, Bahrain.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 43495, 8/21/19.

                  Marzoghi Ltd., 12-20 Albaba Building 119 Road 1507, Manama, Bahrain.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 61541, 11/13/19.

                  Mohammed Marzoghi, 12-20 Albaba Building 119 Road 1507, Manama, Bahrain. (See also addresses in the United Arab (Emirates).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 61541, 11/13/19.

                  BELARUS
                  Bel Huawei Technologies LLC, a.k.a., the following one alias, -BellHuawei Technologies LLC.
                     5 Dzerzhinsky Ave., Minsk, 220036, Belarus.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 43495, 8/21/19.

                  Belmicrosystems Research and Design Center, Office 313, 12 Korzhenevsky Street, 20108 Minsk, Republic of Belarus; and Korjenevsky Str., 12, Minsk, 220108, Republic of Belarus; and 12, Korzhenevskogo Str., Minsk, 220108, Republic of Belarus.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  75 FR 36516, 6/28/10.77 FR 58006, 9/19/12.

                  Mohammad Ghassem Najafi, Unit 705, No. 103, Potbediteley Ave., Minsk, Belarus.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 48534, 9/26/18.

                  Nilco Group, a.k.a., the following one alias:—Nilfam Khazar Co.

                     Unit 705, No. 103, Potbediteley Ave., Minsk, Belarus (see alternate addresses under Iran and Russia.)

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 48534, 9/26/18.

                  SOE Semiconductor Devices Factory, Office 313, 12 Korzhenevsky Street, 20108 Minsk, Republic of Belarus; and Korjenevsky Str., 12, Minsk, 220108, Republic of Belarus; and 12, Korzhenevskogo Str., Minsk, 220108, Republic of Belarus.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  75 FR 36516, 6/28/10.77 FR 58006, 9/19/12.

                  Vasili Kuntsevich, Office 313, 12 Korzhenevsky Street, 20108 Minsk, Republic of Belarus; and Korjenevsky Str., 12, Minsk, 220108, Republic of Belarus; and 12, Korzhenevskogo Str., Minsk, 220108, Republic of Belarus.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  75 FR 36516, 6/28/10.77 FR 58006, 9/19/12.

                  BELGIUM
                  Huawei Technologies Research & Development Belgium NV. Technologiepark 19, 9052 Zwijnaarde Belgium
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.84 FR 43495, 8/21/19.

                  Industrial Metals and Commodities,
                     Goffarstraad 16, B-1050, Brussels, Belgium

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  Nicolas Kaiga, a.k.a., the following one alias: Nicholas Kaiga
                     Goffarstraad 16, B-1050, Brussels, Belgium. (See alternate addresses under Netherlands and United Kingdom)

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  BELIZE

                  Experian Holdings, Inc., N Eyre Str, Blake Bldg, Suite 302, Belize City, Belize 99008; and Corner Hutson Eyre Str, Blake Bldg, Suite 302, Belize City, Belize 99008.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  BOLIVIA
                  Huawei Technologies (Bolivia) S.R.L., La Paz, Bolivia.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  BRAZIL
                  Huawei do Brasil Telecomunicacoes Ltda, Av James Clerk Maxwell, 400 Cond. Techno Park, Campinas 13069380, Brazil.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  BULGARIA
                  Iskren Georgiev, 51 Aleksandar Malinov Blvd., Sofia 1712, Bulgaria.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 3580, 1/26/18.

                  Lyubka Hristova, 51 Aleksandar Malinov Blvd., Sofia 1712, Bulgaria.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 3580, 1/26/18.

                  Mihaela Nenova, a.k.a., the following one alias: Mihaela Nenova-Muhy, 51 Aleksandar Malinov Blvd., Sofia 1712, Bulgaria.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 3580, 1/26/18.

                  Zhelyaz Andreev, 51 Aleksandar Malinov Blvd., Sofia 1712, Bulgaria.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 3580, 1/26/18.

                  BURMA
                  Huawei Technologies (Yangon) Co., Ltd., Yangon, Burma.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  CANADA
                  Abou El-Khir Al Joundi, a.k.a., the following six aliases:—Abou El Kheir Joundi;
                    —Abou Elkhir Al Joundi;
                    —Abou Joundi Et Kheir;
                    —Al Joundi;
                    —Al Jundi; and

                    —Elkheir Aljoundi Abou.

                     2706 Carre Denise Pelletier, Montreal, Quebec, H4R 2T5 Canada.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 231164/18/12.

                  Alex Woolf, 2021 Atwater Street, Suite 216, Montreal, Quebec, Canada H3H2P2.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Alexandre Ivjenko, a.k.a., the following one alias:—Alexander Ivjenko, 7150 Rue Chouinard, Montreal, QC, H8N 2Z6 Canada.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Ali Bakhshien, 909-4005 Bayview Ave., Toronto, Canada M2M 3Z9; and HSBC Tower, Suite 502, 3601 Highway 7 East, Markham, Ontario, L3R 0M3, Canada.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  73 FR 54504, 9/22/08. 76 FR 71869, 11/21/11.

                  Anastasiya Ivjenko, 7150 Rue Chouinard, Montreal, QC, H8N 2Z6, Canada.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Anastassia Voronkevitch, 7150 Rue Chouinard, Montreal, QC H8N 2Z6 Canada
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61249, 10/9/12, 78 FR 75463, 12/12/13.

                  Canada Lab Instruments, a.k.a., the following alias: SCO North America
                     5995 Gouin Ouest, #212, Montreal, Quebec, H4J 2P8 Canada.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 231164/18/12.

                  EKT 2, Inc., 371 Renforth Drive, Etobicoke M9C 2L8, Toronto, Ontario, Canada
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 24590, 4/25/12.

                  Enterprise Chips Hunter (ECH), 2021 Atwater Street, Suite 216, Montreal, Quebec, Canada H3H2P2.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Huawei Technologies Canada Co., Ltd., Markham, ON, Canada.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Kelvo Inc

                     6600 21st Avenue, Laval, Quebec H7R3G8, Canada; and 7169 19th Avenue, Laval, Quebec H7R3E5, Canada

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  Kitro Corporation, 909-4005 Bayview Ave., Toronto, Canada M2M 3Z9; and HSBC Tower, Suite 502, 3601 Highway 7 East, Markham, Ontario, L3R 0M3, Canada.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  73 FR 54504, 9/22/08. 76 FR 71869, 11/21/11.

                  Liubov “Luba” Skvortsova, a.k.a., the following one alias:—Lubov Skvortsova, 7150 Rue Chouinard, Montreal, QC, H8N 2Z6 Canada.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Magtech, a.k.a., the following one alias:—M.A.G. Tech, 5762 Royalmount Ave, Montreal, QC, H4P 1K5, Canada; and 5440 Queen Mart St, Office 103, Montreal, Canada.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Maria Pashovkina, 7150 Rue Chouinard, Montreal, QC, H8N 2Z6, Canada.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Mercury Electronic Solutions, a.k.a., the following one alias:—Mercury Group International, 380 Vansickle Rd Unit 660, St. Catharines, ON L2126P7, Canada; and 127 Rue Wilson, Dollard-des-Ormeaux, Quebec H9A1W7, Canada.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Natalie Sobolev, 5762 Royalmount Ave, Montreal, QC H4P 1K5, Canada; and 5440 Queen Mart St., Office 103, Montreal, Canada.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Saeed Talebi, a.k.a., the following two aliases: Al; and Allen Talebi. P.O. Box 626, Gormley, ONT L0H 1G0 Canada (See alternate addresses under Iran and U.A.E.)
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 75463, 12/12/13.

                  Satco Corporation, P.O. Box 626, Gormley, ONT L0H 1G0 Canada
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 75463, 12/12/13.

                  Sputnik E, 7150 Rue Chouinard, Montreal, QC H8N 2Z6 Canada.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61256, 10/9/12.

                  Zurab Kartvelishvili, a.k.a., the following one alias: George Kartveli. 7380 Vansickle Rd. Unit 660, St. Catharines, ON L2126P7, Canada; and 127 Rue Wilson, Dollard-des-Ormeaux, Quebec H9A 1W7, Canada
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  77 FR 61249, 10/9/12. 78 FR 75463, 12/12/13.

                  CHILE
                  Huawei Chile S.A., Santiago, Chile.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  CHINA, PEOPLE'S REPUBLIC OF
                  54th Research Institute of China, a.k.a., the following three aliases:—China Electronics Technology Group Corp. (CETC) 54th Research Institute;

                    —Communication, Telemetry and Telecontrol Research Institute (CTI); and

                    —Shijiazhuang Communication Observation and Control Technology Institute.

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24266, 5/14/01.75 FR 78883, 12/17/10.
                    77 FR 58006, 9/19/12.
                    81 FR 64696, 9/20/16.

                  A.C. International, Room 1104, North Tower Yueziu City Plaza, No. 445 Dong Feng Zhong Rd., Guangzhou, China
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  73 FR 54503, 9/22/08.

                  Aksu District Public Security Bureau, a.k.a., the following one alias:—Aqsu District Public Security Bureau.

                     Yingbin Rd., Akesu City XUAR 843000, China.

                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Altay Municipality Public Security Bureau, North West Rd., Alta y City, XUAR, China.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Asia International Trading Company, Room 1104, North Tower Yueziu City Plaza, No. 445 Dong Feng Zhong Rd., Guangzhou, China
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  73 FR 54503, 9/22/08.

                  Avin Electronics Technology Co., Ltd. (AETC), Room 401, Yuepeng Building, Jiabin Road, Luohu District, Shenzhen, Guangdong, China; and 1019 Jiabin Road, Luohu Qu, Shenzhen Shi, Guangdong, China (see alternate address under Hong Kong).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 21236, 5/14/19.

                  Baotou Guanghua Chemical Industrial Corporation (Parent Organization: China National Nuclear Group Corporation (CNNC)), a.k.a., the following five aliases:—202 Plant, Baotou Nuclear Energy Facility;
                    —Baotou Guanghua Chemical Industrial Corporation;
                    —Baotou Guanghua Chemical Industry Company;
                    —Baotou Nuclear Fuel Element Plant; and

                    —China Nuclear Baotou Guanghua Chemical Industry Company.

                     202 Factory Baotou, Inner Mongolia.

                  For all items subject to the EAR
                  See § 744.2(d) of this part
                  66 FR 24266, 5/14/0175 FR 78883, 12/17/10.
                    81 FR 64696, 9/20/16.

                  Bayingolin Mongolian Autonomous Prefecture Public Security Bureau, Yingxia Rd., Korla City, XUAR 841000, China.
                  For all items subject to the EAR (See § 744.11 of the EAR).
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Beijing 8 Star International Co., Unit 601, 6th Floor, Tower 1, Prosper Center, No. 5, Guanghua Road, Chaoyang District, Beijing, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 12006, 3/8/16.

                  Beijing Aeronautical Manufacturing Technology Research Institute, a.k.a., the following two aliases:—BAMTRI; and

                    —Aviation Industry Corporation of China's (AVIC) Institute 625.

                     No. 1 East Military Village, North Baliqiao Station, Chaoyang District, Beijing, China; and No. 1 Dongjunzhuang, Baliqiaobei, Chaoyang District, Beijing, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of approval for EAR99; case-by-case review for all items on the CCL
                  79 FR 24566, 5/1/14. 83 FR 3580, 1/26/18.

                  Beijing Aeronautics Yangpu Technology Investment Company (BAYTIC), a.k.a., the following three aliases:—Beijing Aerospace Yangpu Technology Investment Company; and

                    —Tian Hang Yang Pu Technology Investment Limited Company; and

                    —Bei Jing Tian Hang Yang Pu Technology Investment Limited Company.

                     No. 27 Xiaoyun Road, Chaoyang District, Beijing 100027, China; and Room 3120, Building 1, 16 Zhufang Road, Haidian District, Beijing, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14.

                  Beijing FJR Optoelectronic Technology Company Ltd, a.k.a, the following three aliases:—FJIR Optoelectronic Technology Company Ltd.;
                    —Beijing Fu Jerry; and

                    —Fu Jirui. No. 2A Zhonghuan South Road, Wangjing, Chaoyang District, Beijing, China, 100102; and Room 302 Office, Bldg. 11, No. 4, Anningzhuang Rd, Beijing, China, 100085; and Beijing Shunyi district airport into 25-4, Huiyuan, 25th floor, 100028, Beijing; and 25-4 Yuhua Rd, 25th Floor, Shunyi District, Beijing, China 101318.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  80 FR 44849, 7/28/15.

                  Beijing Huawei Digital Technologies Co., Ltd., Beijing, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Beijing Lion Heart International Trading Company, a.k.a., the following one alias:—Wei Lai Xi Tong Ltd.

                     Suite number 1819, The International Center of Times, Number 101, Shoa Yao Ju BeiLi, Chaoyang District, Beijing, China (See also address under Hong Kong).

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 56003, 9/18/14.

                  Beijing Opto-Electronics Technology Company, a.k.a., the following one alias:—BOET

                     No. 4, Jiuxianqiao Road, Chaoyang District, Beijing, China, 100015.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  80 FR 44849, 7/28/15.

                  Beijing Tianhua, a.k.a., the following seventeen aliases: Beijing Tianhua International Co., Ltd.; Beijing BUAA Tianhua Technology Company; Beijing BUAA Tianhua Technology Co., Ltd.; Beijing Aerospace Technology Limited Liability Company; Beihang Tenfine Industry Group; Beijing Beihang Assets Management Co., Ltd.; Beijing Beihang Science & Technology Co., Ltd.; Beijing Aerospace Technology LLC; Beijing North China Aerospace Science & Technology Ltd., Co.; Beijing North Space Technology Co., Ltd.; Beijing the Tianhua Easytouch International Trade Co., Ltd.; North and Astronautics, Beijing China Times Technology Co., Ltd.; Beijing Beihang Haier Software Co., Ltd.; Red Technology; TRW Navigation Communication Technology Co., Ltd.; Beijing North Aerospace Co-Technology Co., Ltd.; and Beijing Full Three Dimensional Power Engineering Co., Ltd. 37 Xue Yuan Rd., Beijing, China; and Room 301, 3f Shining Tower, 35 Xue Yuan Lu, Haidian District, Beijing, China; and Room 311A, 3f Shining Tower, 35 Xue Yuan Lu, Haidian, Beijing, China; and Room 411A, 4f Shining Tower, 35 Xue Yuan Lu, Haidian, Beijing, China; and Room 401, 4f Shining Tower, 35 Xue Yuan Lu, Haidian District, Beijing, China; and Room 402a, 4f Shining Tower, 35 Xue Yuan Lu, Haidian, Beijing, China; and Xueyan Road, Haidain District, Beijing City, 35th Ning Building, Room 402a
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 75463, 12/12/13.

                  Beijing University of Aeronautics and Astronautics (BUAA), a.k.a., the following alias:—Beihang University.

                     37 Xueyuan Road, Haidan District, Beijing.

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24266, 5/14/01.70 FR 54629, 9/16/05.
                    75 FR 78877, 12/17/10.

                  Boertala Mongolian Autonomous Prefecture Public Security Bureau, a.k.a., the following one alias:—Bortala Mongolian Autonomous Prefecture Public Security Bureau.

                     Qingdeli St., Bole City, XUAR, China.

                  For all items subject to the EAR (See § 744.11 of the EAR).
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  BOP Opto-Electronics Technology Company, a.k.a., the following one alias:—Beijing BOP Electro-Optics.

                     No. 10, Jiuxianqiao North Road, Chaoyang District, Beijing, China, 100016; and

                     No. 4 Jiuxianqiao Road, Chaoyang District, Beijing, China, 100015.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  80 FR 44849, 7/28/15.

                  BVI Electronics, B28 10/F Nanfang Da Sha, XIDI Ernalu GangZhou, China 511486 (See alternate address under Hong Kong).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 32445, 6/5/14.

                  Changji Hui Autonomous Prefecture Public Security Bureau, 56 Yan'an N. Rd., Changji City, XUAR 831100, China.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Chen Qu, a.k.a., the following one alias:—Chen Choo
                     No. 4 Nanhuan Road, Jinzhou City, Hubei Province, China

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 14958, 3/21/16. 84 FR 40241, 8/14/19.

                  Chengdu GaStone Technology Co., Ltd. (CGTC), a.k.a., the following four aliases:—Chengdu Jiashi Technology Co.;
                    —Chengdu HiWafer Semiconductor;
                    —Chengdu Haiwei Technology; and

                    —Chengdu Zenith.

                     31F, A Tower, Yanlord Square, No. 1, Section 2, Renmind South Road, Chengdu China; and Internet of Things Industrial Park Economic Development District Xinan Hangkonggang (Southwest Airport), Shuangliu County, Chengdu; and 29th Floor, Yanlord Landmark, No. 1 Renmin South Road Section 2, Chengdu; and 29/F Yanlord Landmark Tower A, Chengdu, China; and Union Road, No 88 Internet of Things Industrial, Chengdu, China; and No 88 Wulian Road, Southwest Airp Development Zone, Chengdu, China; and Industrial Park of Internet of Thing SW Airport Eco Dev Zone, Chengdu, China; and Internet Things of Industrial Pa Southwest Airport Economic, Chengdu, China; and The Industrial Park of Internet of Things, Southwest Airport Economic Development Zone, Chengdu, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14. 81 FR 14958, 3/21/16. 83 FR 37427, 8/1/18.

                  Chengdu Haiguang Integrated Circuit, a.k.a., the following two aliases:—Hygon; and

                    —Chengdu Haiguang Jincheng Dianlu Sheji.

                     China (Sichuan) Free Trade Zone, No. 22-31, 11th Floor, E5, Tianfu Software Park, No. 1366, Middle Section of Tianfu Avenue, Chengdu High-tech Zone, Chengdu, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 29373, 6/24/19.

                  Chengdu Haiguang Microelectronics Technology, a.k.a., the following two aliases:—HMC; and

                    —Chengdu Haiguang Wei Dianzi Jishu.

                     China (Sichuan) Free Trade Zone, No. 23-32, 12th Floor, E5, Tianfu Software Park, No. 1366, Middle Section of Tianfu Avenue, Chengdu High-tech Zone, Chengdu, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 29373, 6/24/19.

                  Chengdu Huawei High-Tech Investment Co., Ltd., Chengdu, Sichuan, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Chengdu Huawei Technologies Co., Ltd., Chengdu, Sichuan, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Chengdu Latest Electronics Technology Company, No. 2069 West Yuanda Road, Pixian Modern Industry Harbor South District, Chengdu, Sichuan, China 611730; and

                     Suite 1-6-1702, West Diaoyu Yaijia Garden, Haidian District, Beijing, China 100142; and

                     C8-1-402 Xiduan Zhonghua Century city, Technology Road, Xian, China 710075; and

                     2-308 No. 115 Hongshan Road, Nanjing, China 210018.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 24565, 5/1/14.

                  Chengdu Spaceon Technology Co., Ltd., a.k.a., the following one alias:—Tianao Electronics Co., Ltd.

                     No. 88 Xinye Road, West High Tech Zone, Chengdu, China; and Spaceon Building, No. 1 Wulidun Road, Chadianzi, Chengdu, China; and Tianao Building, No. 1 Wulidun Road, Chadianzi, Chengdu, China.

                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 3580, 1/26/18.

                  China Aerodynamics Research and Development Center (CARDC).
                     Sichuan Province.

                  For all items subject to the EAR
                  See § 744.3 of this part
                  64 FR 28910, 5/28/99.81 FR 64696, 9/20/16.

                  China Aerospace Science and Industry Corporation Second Academy, a.k.a., the following eight aliases, and thirteen subordinate institutions:—China Changfeng Mechanics and Electronics Technology Academy;
                    —China Chang Feng Mechano-Electronic Engineering Academy;
                    —CASIC Second Academy;
                    —China Chang Feng Mechano-Electronic Engineering Company;
                    —CASIC Academy of Defense Technology;
                    —Second Research Academy of CASIC;

                    —Changfeng Electromechanical Technology Design Institute; and

                    —China Chang Feng Mechanics and Electronics Technology Academy.

                      Subordinate institution

                    Second Design Department, a.k.a., the following two aliases:

                    —Beijing Institute of Electronics Systems Engineering; and

                    —Second Planning Department.

                      Subordinate institution

                    23rd Research Institute, a.k.a., the following two aliases:
                    —Beijing Institute of Radio Measurement; and

                    —BIRM.

                      Subordinate institution

                    25th Research Institute, a.k.a., the following one alias:
                    —Beijing Institute of Remote Sensing Equipment.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                    Subordinate institution
                    201 Research Institute, a.k.a., the following one alias:
                    —Aerospace Science and Technology Defense Technology Research and Experimental Center.

                      Subordinate institution

                    203rd Research Institute, a.k.a., the following two aliases:

                    —Beijing Radio Measurement and Testing Institute; and

                    —Beijing Institute of Radio Metrology and Measurement.

                      Subordinate institution

                    204th Research Institute, a.k.a., the following two aliases:

                    —Beijing Institute of Computer Applications and Simulation Technology; and

                    —706th Research Institute.

                      Subordinate institution

                    206th Research Institute, a.k.a., the following two aliases:
                    —Beijing Institute of Mechanical Equipment; and

                    —Beijing Institute of Machinery and Equipment.

                      Subordinate institution

                    207th Research Institute, a.k.a., the following three aliases:
                    —Beijing Guangda Optoelectronics;
                    —Beijing Institute of Environmental Features; and

                    —Beijing Institute of Environmental Characteristics.

                    Subordinate institution
                    208th Research Institute, a.k.a., the following one alias:
                    —Beijing Electronic Document Service Center.

                      Subordinate institution

                    210th Research Institute, a.k.a., the following one alias:
                    —Xian Changfeng Electromechanical Institute.

                      Subordinate institution

                    283 Factory, a.k.a., the following one alias:
                    —Beijing Xinfeng Machinery Factory.

                      Subordinate institution

                    284 Factory, a.k.a., the following two aliases:
                    —Beijing Changfeng Machinery Factory; and

                    —Beijing Changfeng Xinlian Project Management.

                      Subordinate institution

                    699 Factory, a.k.a., the following one alias:
                    —Beijing Xinli Machinery Factory.

                   The following addresses apply to the entity and to the thirteen subordinate institutions:

                     50 Yongding Road, Haidian District, Beijing, China; and 51 Yongding Road, Haidian District, Beijing, China; and 52 Yongding Road, Haidian District, Beijing, China; and 58 Yongding Road, Haidian District, Beijing, China; and 90 Dianzi Road, Section One, Xian, China.

                  China Aerospace Science and Industry Corporation (CASIC) 3rd Academy, a.k.a., the following three aliases:—China Haiying Electro-Mechanical Technology Academy (CHETA);

                    —HiWING Mechanical & Electrical Technology Corporation; and

                    —Beijing HY Electronic Tech Co

                     No. 1 Haiying Rd, Fengtai Technology District, Tower 1, 7/F, Beijing; and F/5 #5 BLDG Hangtian Haiying Tech No 1 Kaiying Rd, Feng Tai District, Beijing 100089; and No. 11, Hepingli East Street, Dongcheng District, Beijing; and P.O. Box 7200-80, Beijing 100074

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24267, 5/14/01. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Industry Corporation (CASIC) 3rd Academy's 159 Factory, a.k.a., the following two aliases:—159th Factory; and

                    —Beijing Xinghang Electromechanical Equipment Factory

                     No. 9, DongWangzuo North Road, Yungang, Fengtai District, Beijing, 100074

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24267, 5/14/01. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Industry Corporation (CASIC) 3rd Academy's 239 Factory, a.k.a., the following two aliases:—239th Factory; and

                    —Beijing Hangxing Machinery Manufacturing Corporation., Ltd

                     No. 11 Hepingli East Street, Dongcheng District, Beijing 100013

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24267, 5/14/01. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Industry Corporation (CASIC) 3rd Academy, 31 Research Institute, a.k.a., the following two aliases:—31st Institute; and

                    —Beijing Power Machinery Institute.

                     No. 17, Yungang West Road, Fengtai District, Beijing

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24266, 5/14/01. 75 FR 78877, 12/17/10. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Industry Corporation (CASIC) 3rd Academy, 33 Research Institute, a.k.a., the following two aliases:—33rd Institute; and

                    —Beijing Automation Control Equipment Institute (BACEI)

                     No. 1, Yungang Beili, Fengtai District, Beijing 100074

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24266, 5/14/01. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 81 FR 64696, 9/20/16. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Industry Corporation (CASIC) 3rd Academy, 35 Research Institute, a.k.a, the following two aliases:—35th Institute; and

                    —Huahang Institute of Radio Measurement

                     No. 3 South Street, Hepingli East Road, Dongcheng, Beijing, 100013

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24266, 5/14/01. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 81 FR 64696, 9/20/16. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Technology Corporation (CASC) 1st Academy 12 Research Institute, a.k.a., the following two aliases:—Beijing Aerospace Automatic Control Institute (BICD); and

                    —12th Institute

                    51 Yong Ding Road, Beijing; and No. 50 Yongding Road, Haidian District, Beijing 100854

                  For all items subject to the EAR
                  See § 744.3 of this part
                  64 FR 28909, 5/28/99. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 81 FR 64696, 9/20/16. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Technology Corporation (CASC) 1st Academy 702 Research Institute, a.k.a., the following two aliases:—702nd Institute; and

                    —Beijing Institute of Structure and Environmental Engineering (BISE)

                     No. 30 Wanyuan Road, Beijing

                  For all items subject to the EAR
                  See § 744.3 of this part
                  64 FR 28909, 5/28/99. 75 FR 78877, 12/17/10. 81 FR 64696, 9/20/16. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Technology Corporation (CASC) 1st Academy First Design Department, a.k.a., the following one alias:—1st General Design Department

                     1 South Dahongmen Road, Fengtai District, Beijing 100076

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24266, 5/14/01. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Technology Corporation (CASC) 8th Academy, and the following three aliases:—Shanghai Academy of Spaceflight Technology (SAST);
                    —Shanghai Institute of Space; and

                    —MOA#8 Academy

                     Shanghai Spaceflight Tower, 222 Cao Xi Road, Shanghai, 200233; and No. 3888 Yuanjiang Road, Minhang District, Shanghai 201109; and No. 2965 Dongchuan Rd Minhang District Shanghai, China

                  For all items subject to the EAR
                  See § 744.3 of this part
                  64 FR 28909, 5/28/99. 75 FR 78877, 12/17/10. 81 FR 64696, 9/20/16. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Technology Corporation (CASC) 8th Academy 811 Research Institute, and the following two aliases:—811th Institute; and

                    —Shanghai Institute of Space Power Sources

                     388 Cang Wu Road, Shanghai; and 2965 Dongchuan Road, Minhang District, Shanghai 200245

                  For all items subject to the EAR
                  See § 744.3 of this part
                  64 FR 28909, 5/28/99. 75 FR 78883, 12/17/10. 77 FR 58006, 9/19/12. 81 FR 64696, 9/20/16. 84 FR 40241, 8/14/19.

                  China Aerospace Science and Technology Corporation (CASC) 9th Academy 13 Research Institute, a.k.a., the following four aliases:—13th Institute;
                    —Beijing Institute of Aerospace Control Devices (BIACD);
                    —230 Factory; and

                    —Beijing Aerospace Times Optical-Electronic Technology Co., Ltd

                     No. 1 Fengying East Road, Haidian District, Beijing 100094

                  For all items subject to the EAR
                  See § 744.3(d) of this part
                  66 FR 24265, 5/14/01. 75 FR 78877, 12/17/10. 84 FR 40241, 8/14/19.

                  China Electronic Technology Group Corporation No. 11 Research Institute, a.k.a, the following three aliases, including the named subordinate institutions:
                    —North China Research Institute of Electro-Optics (NCRIEO);

                    —China North Research Institute of Electro-Optics; and

                    —CETC 11th Research Institute (CETC 11th RI).

                      Subordinate institution Beijing Laiyin Company Ltd, a.k.a., the following one alias,
                    —Beijing North China Lai Yin Opto-Electronics Technology Company.

                      Subordinate Institution: China Electronics Technology Corporation (CETC) Infrared Engineering and Technology Company, a.k.a., the following one alias:
                    —CETC Infrared or CETC IR.

                     No. 10, Jiuxianqiao North Road, Chaoyang District, Beijing, China, 100016; and

                     No. 4 Jiuxianqiao Road, Chaoyang District, Beijing, China, 100015; and

                     Electronic City of Zhong Guan Cun Technical Zone, Beijing, China, 100015.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  80 FR 44849, 7/28/15.

                  China Electronics Technology Group Corporation 13th Research Institute (CETC 13), a.k.a., the following six aliases, and twelve subordinate institutions:—Hebei Semiconductor Research Institute;
                    —HSRI;
                    —Hebei Institute of Semiconductors;
                    —Hebei Semiconductor Institute;
                    —Hebei Semiconductor; and

                    —CETC Research Institute 13.

                     113 Hezuo Road, Shijiazhuang, Hebei, China; and 21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Bowei Integrated Circuits, a.k.a., the following three aliases:
                    —Hebei Bowei Integrated;
                    —Hebei Bowel Technology; and

                    —Shijuang Bowei.

                     113 Hezuo Road, Shijiazhuang, Hebei, China; and 21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China; and Shijiazhuang New and Hi-Tech Dev Zone, Hebei, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                   Subordinate institution
                    Envoltek, a.k.a., the following one alias:
                    —Hebei Envoltek Electronics.

                     21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Hebei Sinopack Electronics, a.k.a., the following one alias:
                    —Hebei Sinapack Elec.

                     113 Hezuo Road, Shijiazhuang, Hebei, China; and 21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Hebei Brightway International,

                     21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Hebei Medicines Health, 113 Hezuo Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Hebei Poshing Electronics, a.k.a., the following three aliases:
                    —Hebei Poshin Electronics;
                    —Hebei Poshing Elec.; and

                    —Hubei PoshingElectronics.

                     113 Hezuo Road, Shijiazhuang, Hebei, China; and 21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Hebei Puxing Electronic,

                     113 Hezuo Road, Shijiazhuang, Hebei, China; and 21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                    Subordinate institution
                    Micro Electronic Technology, a.k.a., the following three aliases:
                    —Micro Electronic Technology Development Application Corp;
                    —METDA; and

                    —METDAC.

                     113 Hezuo Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Shijiazhuang Development Zone Maiteda Microelectronics Technology Development and Application Corporation,

                     21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    MT Microsystems,

                     113 Hezuo Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    North China Integrated Circuit Corporation,

                     21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China; and 113 Hezuo Road, Shijiazhuang, Hebei, China.

                      Subordinate institution

                    Tonghui Electronics, a.k.a., the following one alias:
                    —Tonghui Electronics Technology.

                     21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China.

                  China Electronics Technology Group Corporation 14th Research Institute (CETC 14), a.k.a., the following seven aliases, and two subordinate institutions:—Nanjing Research Institute of Electronics Technology;
                    —NRIET;
                    —Nanjing Electronics Technology Institute;
                    —Ministry of Information Industry Electronics;
                    —No 14 Research Institute;
                    —Research Institute 14; and

                    —CETC Research Institute 14.

                      Subordinate institution

                    Nanjing SunSea Industry Corporation.

                      Subordinate institution

                    Nanjing Institute of Radio Technology.
                    The following addresses apply to the entity and the two subordinate institutions:

                     No 1 Dinghuaimen, Nanjing, China; and No 8 Guorui Road, Yuhua District, Nanjing, China; and No 4 Guping Gang, Nanjing, China; and 52 Huju Road, North, Nanjing, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                  China Electronics Technology Group Corporation 29 (CETC 29) Research Institute, a.k.a., the following ten aliases:—CETC 29th Research Institute;
                    —China Southwest Electronic Equipment Research Institute (SWIEE);
                    —29 (SIWEI Co) Institute;
                    —SIWI Electronics Corporation;
                    —Chengdu SIWI Electronics Inc.;
                    —Chengdu SIWEI Electronics Company;
                    —Chengdu 29 Institute;
                    —Si Wei Company 29th Institute;
                    —SIWI Group; and

                    —Southwest China Institute of Electronics

                     No. 496 West Yingkang Road, Chengdu, Sichuan Province 610036, China; and Box #429, #1 Waixichadianziheng Street, Chengdu, Sichuan Province 610036, China; and 5 Cheng Wen Road, Chengdu, China 610036; and No.3 Research Department, Zhongdian, China; and No. 29 Institute, Waixi Chadi, Chengdu, China; and No.81 BaiChao Road, XiPu Town, PiXian County, Chengdu, China; and Siwei Electron Mansion, Xiejiasi, Qingyang, Chengdu, China; and 1 Hengjie Chadianzi Western Suburb, Chengdu, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44680, 8/1/14.80 FR 69856, 11/12/15.

                  China Electronics Technology Group Corporation 38th Research Institute (CETC 38), a.k.a., the following seven aliases, and seven subordinate institutions:—Hefei Institute of Electronic Engineering;
                    —Southwest China Research Institute of Radar Technology;
                    —East China Research Institute of Electronic Engineering;
                    —ECRIEE;
                    —No 38 Research Institute;
                    —Research Institute 38; and

                    —CETC Research Institute 38.

                      Subordinate institution

                    Anhui Sun-Create Electronics.

                      Subordinate institution

                    Anhui Bowei Chang An Electronics.

                      Subordinate institution

                    ECU Electronic Industrial.

                      Subordinate institution

                    Hefei ECU-TAMURA Electric.

                      Subordinate institution

                    Anhui Bowei Guangcheng Information Technology.

                      Subordinate institution

                    Anhui Bowei Ruida Electronics Technology.

                      Subordinate institution

                    Brainware Terahertz.
                    The following addresses apply to the entity and to the seven subordinate institutions:

                     199 Xiangzhang Ave, Hefei, Anhui, China; and 19 He Huan Lu, Hefei, China; and 19 Hehuan Road, Hefei, China; and 418 Guilin Road, Shanghai, China; and 260 Ji Xi Road, Hefei, China; and 88 Pihe Road, Hefei, China; and Forward Road, Economics Development Zone of Luan, Luan, Anhui, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                  China Electronics Technology Group Corporation 55th Research Institute (CETC 55), a.k.a., the following four aliases, and two subordinate institutions:—Nanjing Electronic Devices Institute;
                    —CETC Research Institute 55;
                    —NEDI; and

                    —NEDTEK.

                     524 Zhongzhan East Road, Nanjing, Jiangsu, China; and 524 East Zhongshan Road, Nanjing, Jiangsu, China; and 523 East Zhongshang Road, Nanjing, Jiangsu, China; and 166 Middle Zhenghang Road, Nanjing, China; and 166 Zhengfand Mid Road, Nanjing, China; and 166 Zhengfang Mid Road, Nanjing, China; and Huaxia Sci and Tech Park Hi-Tech Development, Nanjing, China; and RM 2105 Huaxia Bldg, No 81 Zhongshan Rd, Nanjing, China; and 8 Xingwen Road, Economic and Tech, Nanjing, China.

                      Subordinate institution

                    Nanjing Guosheng Electronics,

                     8 Xingwen Road, Economic and Tech, Nanjing,Chia; and 166 Middle Zhenghang Road, Nanjing, China; and 166 Zhengfang Mid Road, Nanjing, China; and 166 Zhengfand Mid Road, Nanjing, China; and 168 Zhengfand Mid Road, Nanjing, China; and 165 Zhangfang Mid-Road, Nanjing, China; and 414 South Zhong Shan Road, Nanjing, Jiangsu, China; and

                      Subordinate institution

                    Nanjing Guobo Electronic,

                     166 Zhengfang Mid Road, Nanjing, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                  China General Nuclear Power Corporation (CGNPC), a.k.a., the following one alias:—China Guangdong Nuclear Power Corporation

                     South Building, CGN Tower, 2002 Shennan Boulevard, Futian District, Shenzhen, Guangdong Province, China; and 1001 Shangbuzhong Road, Shenzhen Sci & Tech Building, Shenzhen, China

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  China General Nuclear Power Group, South Building, CGN Tower, 2002 Shennan Boulevard, Futian District, Shenzhen, Guangdong Province, China
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  China Nuclear Power Technology Research Institute Co. Ltd.,
                     47 F/A Jiangsu Building, Yitian Road, Futian District, Shenzhen, 518026, China

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 40241, 8/14/19.

                  China Tech Hi Industry Import and Export Corporation, a.k.a., the following two aliases:—CTHC; and

                    —Tianhang Industry Import and Export Company.

                     30 Haidian Road, Beijing, China; and No A 16 Zao Jun Miao, Haidian, Beijing, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                  China Volant Industry a.k.a., the following two aliases:—Volinco; and

                    —China Huateng Industry.

                     30 Haidian Road, Beijing, China; and Room 703, 7th Floor, Building 1, No 11, Changchunqiao Road, Haidian District, Beijing, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                  China Xinshidai Company, a.k.a., the following one alias: -China New Era Group
                     Xinshidai Plaza, Plaza No. 7 Huayuan Rd., Beijing, China

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 36202, 6/26/14.

                  Chinese Academy of Engineering Physics, a.k.a., the following seventeen aliases:—Ninth Academy;
                    —Southwest Computing Center;
                    —Southwest Institute of Applied Electronics;
                    —Southwest Institute of Chemical Materials;
                    —Southwest Institute of Electronic Engineering;
                    —Southwest Institute of Environmental Testing;
                    —Southwest Institute of Explosives and Chemical Engineering;
                    —Southwest Institute of Fluid Physics;
                    —Southwest Institute of General Designing and Assembly;
                    —Southwest Institute of Machining Technology;
                    —Southwest Institute of Materials;
                    —Southwest Institute of Nuclear Physics and Chemistry (a.k.a., China Academy of Engineering Physics (CAEP)'s 902 Institute);
                    —Southwest Institute of Research and Applications of Special Materials Factory;
                    —Southwest Institute of Structural Mechanics;
                    (all of preceding located in or near Mianyang, Sichuan Province)
                    —The High Power Laser Laboratory, Shanghai;

                    —The Institute of Applied Physics and Computational Mathematics, Beijing; and

                    —901 Institute (P.O. Box 523 Chengdu, 6100003).

                  For all items subject to the EAR
                  Case-by-case basis
                  62 FR 35334,6/30/97.
                    66 FR 24266, 5/14/01.
                    75 FR 78883,
                    12/17/10.
                    76 FR 21628, 4/18/11.
                    76 FR 50407, 8/15/11.
                    77 FR 58006, 9/19/12.

                  Chitron Electronics Company Ltd, a.k.a., Chi-Chuang Electronics Company Ltd (Chitron Shenzhen), 2127 Sungang Rd, Huatong Bldg, 19/F Louhu Dist, Shenzhen, China 518001; and 169 Fucheng Rd, Fenggu Bldg, 7/F, Mianyang, China 621000; and Zhi Chun Rd, No 2 Bldg of Hoajing jiayuan, Suite #804, Haidian Dist, Beijing, China 100086; and 40 North Chang'an Rd, Xi'an Electronics Plaza Suite #516, Xi'an, China 710061; and 9 Huapu Rd, Chengbei Electronics & Apparatus Mall, 1/F Suite #39, Chengdu, China 610081; and 2 North Linping Rd, Bldg 1, Suite #1706, Hongkou Dist, Shanghai, China 200086 (See alternate address under Hong Kong)

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  75 FR 1701, 1/13/10.

                  Comsum Technologies (Group) Ltd., Room 408, Unit 6, Xin Qi Dian Jia Yan, 5 Chang Qiao Road, Beijing, 100089, China (See alternate address under Hong Kong)
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 75463, 12/12/13.

                  Corezing International, (a.k.a., CoreZing Electronics, Corezing International Group Company, Corezing International Pte Ltd, Corezing Technology Pte Ltd and Core Zing), Room 1007, Block C2, Galaxy Century Bldg., CaiTian Rd., FuTian District, Shenzhen, China; and Room 1702, Tower B, Honesty Building, Humen, Dongguan, Guangdong, China (See alternate addresses under Hong Kong and Singapore)
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 67062, 10/31/11.

                  Dahua Technology, 807, Block A, Meike Building No. 506, Beijing South Road, New City, Urumqi, Xinjiang, China; 1199 Bin'an Road, Binjiang High-tech Zone, Hangzhou, China; and 6/F, Block A, Dacheng Erya, Huizhan Avenue, Urumqi, China; and No. 1187, Bin'an Road, Binjiang District, Hangzhou City, Zhejiang Province, China.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Dalian Ligong Safety Equipment Company Limited,
                     No. 26 Liaohe East Road, Double D Port, Economic and Technological Development Zone, Dalian, China 116620.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 24565, 5/1/14.

                  Dongguan Huawei Service Co., Ltd., Dongguan, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Dongguan Lvyuan Industry Investment Co., Ltd., Dongguan, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Edward Fan,
                     Hucun, Huafeng Town, Ningyang County, Tai'an City, Shandong Province, China

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 14958, 3/21/16. 84 FR 40241, 8/14/19.

                  Fang Yu, 16 Gaoxin 4th Road, Xian High Tech Industrial Development Zone, Xian, China
                  For all items subject to the EAR. (See 744.11 of the EAR)
                  Presumption of denial
                  75 FR 36519, 6/28/10.

                  Foang Tech Inc., a.k.a., the following one alias:—Ofogh Electronics Co.

                     52F, Shun Hing Square, Unit 1-8 Di Wang Commercial Center, Shenzhen, China (See alternate address under Hong Kong).

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 40178, 6/21/16.

                  Fujian Jinhua Integrated Circuit Company, Ltd., a.k.a., the following one alias: —JHICC

                     Sanchuang Park, Century Avenue, Jinjiang City, Fujian Province, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 54521, 10/30/18.

                  Fushun Jinly Petrochemical Carbon Co., Ltd.,

                     Room 2104, Jinhui Plaza, No. 16 Dongsi Road, Xinfu District, Fushun, Liaoning, China; and 113015 East of No. 2 Petroleum Factory, Dongzhou District, Fushun, Liaoning, China, 113004.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 24565, 5/1/14.

                  Fuyuan Huang, No. 2A Zhonghuan South Road, Wangjing, Chaoyang District, Beijing, China, 100102; and Room 302 Office, Bldg 11, No. 4, Anningzhuang Rd, Beijing, China, 100085.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  80 FR 44849, 7/28/15.

                  Gala Wang, Room 2506, Hengchang Building, No. 288, Hing Si Road, Jinan City, Shandong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 14958, 3/21/16.

                  Gui'an New District Huawei Investment Co., Ltd., Guiyang, Guizhou, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Hami Municipality Public Security Bureau, a.k.a., the following two aliases:—Kumul Municipality Public Security Bureau, and

                    —Qumul Municipality Public Security Bureau.

                     Huancheng Rd., Hami District, Hami City, XUAR, China.

                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Hangzhou Huawei Digital Technology Co., Ltd., Hangzhou, Zhejiang, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Hebei Far East Communication System Engineering, a.k.a., the following two aliases:—Hebei Far East Comm.; and

                    —HBFEC.

                     21 Changsheng Street, Shijiazhuang, Hebei, China; and 21 Changsheng Road, Shijiazhuang, Hebei, China; and 589 West Zhongshan Road, Shijiazhuang, Hebei, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 37427, 8/1/18.

                  Hetian Prefecture Public Security Bureau, a.k.a., the following one alias:—Hotan Prefecture Public Security Bureau.

                     92 Beijing W Rd., Heitan City, Hetian Prefecture, XUAR 848000, China.

                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Higon, a.k.a., the following five aliases:—Higon Information Technology;
                    —Haiguang Xinxi Jishu Youxian Gongsi;
                    —THATIC;

                    —Tianjing Haiguang Advanced Technology Investment; and

                    —Tianjing Haiguang Xianjin Jishu Touzi Youxian Gongsi.

                     Industrial Incubation-3-8, North 2-204, 18 Haitai West Road, Huayuan Industrial Zone, Tianjin, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 29373, 6/24/19.

                  Hikvision. No. 555 Qianmo Road, Binjiang District, Hangzhou 310052, China; and 23rd Floor, Block A, Yingke Plaza, No. 217 Gaoxin Street, Gaoxin District, Urumqi, China; and 700 Dongliu Road, Binjiang District, Hanzhou, China.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  HiSilicon Optoelectronics Co., Ltd., Wuhan, Hubei, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  HiSilicon Technologies Co., Ltd (HiSilicon), Bantian Longgang District, Shenzhen, 518129, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  HiSilicon Tech (Suzhou) Co., Ltd., Suzhou, Jiangsu, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Device Co., Ltd., Dongguan, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Device (Dongguan) Co., Ltd., Dongguan, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Device (Shenzhen) Co., Ltd., Shenzhen, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Machine Co., Ltd., Dongguan, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Software Technologies Co., Ltd., Nanjing, Jiangsu, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Technical Service Co., Ltd., China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Technologies Co., Ltd., a.k.a., the following one alias,—Shenzhen Huawei Technologies, and to include the following addresses and the following 22 affiliated entities:

                     Addresses for Huawei Technologies Co., Ltd.: Bantian Huawei Base, Longgang District, Shenzhen, 518129, China; and No. 1899 Xi Yuan Road, High-Tech West District, Chengdu, 611731; and

                     C1, Wuhan Future City, No. 999 Gaoxin Ave., Wuhan, Hebei Province; and Banxuegang Industrial Park, Buji Longgang, Shenzhen, Guangdong, 518129, China; and R&D Center, No. 2222, Golden Bridge Road, Pu Dong District, Shanghai, China.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                   Affiliated entities:

                     Beijing Huawei Longshine Information Technology Co., Ltd., a.k.a., the following one alias:

                   —Beijing Huawei Longshine, to include the following subordinate. Q80-3-25R, 3rd Floor, No. 3, Shangdi Information Road, Haidian District, Beijing, China.

                   Hangzhou New Longshine Information Technology Co., Ltd., Room 605, No. 21, Xinba, Xiachang District, Hangzhou, China.

                   Hangzhou Huawei Communication Technology Co., Ltd., Building 1, No. 410, Jianghong Road, Changhe Street, Binjiang District, Hangzhou, Zhejiang, China.

                   Hangzhou Huawei Enterprises, No. 410 Jianghong Road, Building 1, Hangzhou, China.

                   Huawei Digital Technologies (Suzhou) Co., Ltd., No. 328 XINHU STREET, Building A3, Suzhou (Huawei R&D Center, Building A3, Creative Industrial Park, No. 328, Xinghu Street, Suzhou), Suzhou, Jiangsu, China.

                   Huawei Marine Networks Co., Ltd., a.k.a., the following one alias:—Huawei Marine. Building R4, No. 2 City Avenue, Songshan Lake Science & Tech Industry Park, Dongguan, 523808, and No. 62, Second Ave., 5/F-6/F, TEDA, MSD-B2 Area, Tianjin Economic and Technological Development Zone, Tianjin, 300457, China.

                   Huawei Mobile Technology Ltd., Huawei Base, Building 2, District B, Shenzhen, China.

                   Huawei Tech. Investment Co., U1 Building, No. 1899 Xiyuan Avenue, West Gaoxin District, Chengdu City, 611731, China.

                   Huawei Technology Co., Ltd. Chengdu Research Institute, No. 1899, Xiyuan Ave., Hi-Tech Western District, Chengdu, Sichuan Province, 610041, China.

                   Huawei Technology Co., Ltd. Hangzhou Research Institute, No. 410, Jianghong Rd., Building 4, Changhe St., Binjiang District, Hangzhou, Zhejiang Province, 310007, China.

                   Huawei Technologies Co., Ltd. Beijing Research Institute, No. 3, Xinxi Rd., Huawei Building, ShangDi Information Industrial Base, Haidian District, Beijing, 100095, China; and No. 18, Muhe Rd., Building 1-4, Haidian District, Beijing, China.

                   Huawei Technologies Co., Ltd. Material Characterization Lab, Huawei Base, Bantian, Shenzhen 518129, China.

                   Huawei Technologies Co., Ltd. Xi'an Research Institute, National Development Bank Building (Zhicheng Building), No. 2, Gaoxin 1st Road, Xi'an High-tech Zone, Xi'an, China.

                   Huawei Terminal (Shenzhen) Co., Ltd., Huawei Base, B1, Shenzhen, China.

                   Nanchang Huawei Communication Technology, No. 188 Huoju Street, F10-11, Nanchang, China.

                   Ningbo Huawei Computer & Net Co., Ltd., No. 48 Daliang Street, Ningbo, China.

                   Shanghai Huawei Technologies Co., Ltd., R&D center, No. 2222, Golden Bridge Road, Pu Dong District, Shanghai, 286305 Shanghai, China, China.

                   Shenzhen Huawei Anjiexin Electricity Co., Ltd., a.k.a., the following one alias: —Shenzhen Huawei Agisson Electric Co., Ltd. Building 2, Area B, Putian Huawei Base, Longgang District, Shenzhen, China; and Huawei Base, Building 2, District B, Shenzhen, China.

                   Shenzhen Huawei New Technology Co., Ltd., Huawei Production Center, Gangtou Village, Buji Town, Longgang District, Shenzhen, China.

                   Shenzhen Huawei Technology Service, Huawei Base, Building 2, District B, Shenzhen, China.

                   Shenzhen Huawei Technologies Software, Huawei Base, Building 2, District B, Shenzhen, China.

                   Zhejiang Huawei Communications Technology Co., Ltd., No. 360 Jiangshu Road, Building 5, Hangzhou, Zhejiang, China.

                  Huawei Technologies Service Co., Ltd., Langfang, Hebei, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huawei Training (Dongguan) Co., Ltd., Dongguan, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Huayi Internet Information Service Co., Ltd., Shenzhen, Guangdong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 22963, 5/21/19.

                  Hui Tong Business Ltd., Huawei Base, Electrical Research Center, Shenzhen, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 43495, 8/21/19.

                  HWA Create, 5/F, Xinshidai Building/New Era Mansion, 7 Huayuan Rd., Beijing, China; and No. B3 Huayuan Rd., Beijing, China (See alternate addresses under Hong Kong)
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 36202, 6/26/14.

                  IFLYTEK, National Intelligent Speech High-tech Industrialization Base, No. 666, Wangjiang Road West, Hefei City, Anhui Province, China.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Jadeshine, R1102 B Tainyuangang Center, Dong San Bei Lu Bing 2, Chaoyang District, Beijing, China
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 18811, 3/28/13.

                  Jadeshine Engineering HK Co., Shanghai, China; and Langfang, China. (See alternate address under Hong Kong)
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 18811, 3/28/13.

                  Jiangsu Leidian Technology Company (JLTC), 88 Luyuan Road, Yixing Environmental Sciences Park, Jiangsu Province, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 44683, 8/1/14.

                  Jinan Tongbaolai Oilfield Equipment Co. Ltd, Room 2506, Hengchang Building, No. 288, Hing Si Road, Jinan City, Shandong, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  81 FR 14958, 3/21/16.

                  Kashgar Prefecture Public Security Bureau, a.k.a., the following one alias:—Kashi Prefecture Public Security Bureau.

                     Youmulake Xiehai'er Rd., Kashgar (“Kashi”) City, XUAR 844000, China.

                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Kelamayi Municipality Public Security Bureau, a.k.a, the following two aliases:—Karamay Municipality Public Security Bureau; and

                    —Qaramay Municipality Public Security Bureau.

                     52 Yingbin Rd., Kelamayi City, Kelamayi District, XUAR 834000, China.

                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Kezilesu Kyrgyz Autonomous Prefecture Public Security Bureau, a.k.a., the following one alias:—Kezilsu Autonomous Prefecture Public Security Bureau.

                     Guangming Rd., Atushi City, XUAR 845350, China.

                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Kinglead Electronics Co., Ltd., a.k.a., the following two aliases:—Kinglead International Trading, and

                    —Kinglead Trading.

                     15H Office Building Buji, Central Plaza, Jihua Road, Buji, Longgang, Shenzhen, China (See alternate address under Hong Kong).

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 32445, 6/5/14.

                  Liaoyang Carbon Co., Ltd.,
                     No. 688 Liuan Road, Liuerpu Economic Development Zone, Liaoyang City, Liaoning, China 11212.

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  79 FR 24565, 5/1/14.

                  Lim Yong Nam, (a.k.a. Lin Rongnan, Steven Lim and Yong Nam Lim), YuJingHuaCheng Huaqiang South Road Futian, Shenzhen, China 518033; and Room 2613, NanGuangJieJia Building ShenNan Road, FuTian, Shenzhen, China 518033 (See alternate addresses under Singapore)
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 67062, 10/31/11.

                  Longkui Qu, Gucheng, Linhai, Zhejiang, China 317000; and China Jincheon Tung Cheng Jin Road, Linhai City, Zhejian Province, #431, 317005, China.
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 21236, 5/14/19.

                  Longtek Company, Ltd., a.k.a., the following one alias: Beijing Landuyt Feng Technology Co., Ltd. Room 1105, TianZuo International Center A, No, 12, Zhongguncun South Street, Haidan District, Beijing 100081, China
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  78 FR 75463, 12/12/13.

                  Luo Jie, (a.k.a. Cherry, Ivy Luo and Jie Luo), Room 1007, Block C2, Galaxy Century Bldg., CaiTian Rd., FuTian District, Shenzhen, China; and Room 1702, Tower B, Honesty Building, Humen, Dongguan, Guangdong, China (See alternate addresses under Hong Kong)
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  76 FR 67062, 10/31/11.

                  Ma Yunong, a.k.a., the following one alias:—George Ma.

                     B-804 SOHO New Town, 88 Jianguo Road, Chaoyang District, Beijing, 100022, China; and Room 1002, LT Square, No. 500, Chengdu North Road, Shanghai, 200003, China; and Unit 1906-2, West Tower, Fortune Plaza, No. 114, Tiyu Dong Rd, Tianhe District, Guangzhou 510620, China

                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  83 FR 44824, 9/4/18.

                  Megvii Technology, 3rd Floor, Block A, Rongke Information Center, No. 2 South Road, Haidian District, Beijing, China; and Floor 3rd Unit A Raycom Infotech Park, No 2 Kexueyuan, Beijing, China.
                  For all items subject to the EAR (See § 744.11 of the EAR)
                  Case-by-case review for ECCNs 1A004.c, 1A004.d, 1A995, 1A999.a, 1D003, 2A983, 2D983, and 2E983, and for EAR99 items described in the Note to ECCN 1A995; presumption of denial for all other items subject to the EAR
                  84 FR 54004, 10/9/19.

                  Multi-Mart Electronics Technology Co, Ltd., 5/F Blk 37A, 3 Qiaogao Road, Nanhai, Guangdong, Foshan, China (see alternate address under Hong Kong).
                  For all items subject to the EAR. (See § 744.11 of the EAR)
                  Presumption of denial
                  84 FR 21236, 5/14/19.

                  National Supercomputing Center Changsha (NSCC-CS), Changsha City, Hunan Province, China
                  For all items subject to the EAR. (See § 744.11 of the EAR)
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