[Federal Register: March 25, 1996 (Rules and Regulations)]
[Page 12914-12964]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[pp. 12914-12964]] Export Administration Regulation; Simplification of Export
Administration Regulations
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(c) Related persons. A temporary denial order may be made
applicable to related persons in accordance with Sec. 766.23 of this
part.
(d) Renewal. (1) If, no later than 20 days before the expiration
date of a temporary denial order, BXA believes that renewal of the
denial order is necessary in the public interest to prevent an imminent
violation, BXA may file a written request setting forth the basis for
its belief, including any additional or changed circumstances, asking
that the Assistant Secretary renew the temporary denial order, with
modifications, if any are appropriate, for an additional period not
exceeding 180 days. BXA's request shall be delivered to the respondent,
or any agent designated for this purpose, in accordance with
Sec. 766.5(b) of this part, which will constitute notice of the renewal
application.
(2) Non-resident respondents. To facilitate timely notice of
renewal requests, a respondent not a resident of the United States may
designate a local agent for this purpose and provide written
notification of such designation to BXA in the manner set forth in
Sec. 766.5(b) of this part.
(3) Hearing. (i) A respondent may oppose renewal of a temporary
denial order by filing with the Assistant Secretary a written
submission, supported by appropriate evidence, to be received not later
than seven days before the expiration date of such order. For good
cause shown, the Assistant Secretary may consider submissions received
not later than five days before the expiration date. The Assistant
Secretary ordinarily will not allow discovery; however, for good cause
shown in respondent's submission, he/she may allow the parties to take
limited discovery, consisting of a request for production of documents.
If requested by the respondent in the written submission, the Assistant
Secretary shall hold a hearing on the renewal application. The hearing
shall be on the record and ordinarily will consist only of oral
argument. The only issue to be considered on BXA's request for renewal
is whether the temporary denial order should be continued to prevent an
imminent violation as defined herein.
(ii) Any person designated as a related person may not oppose
issuance or renewal of the temporary denial order, but may file an
appeal in accordance with Sec. 766.2(3)(c) of this part.
(iii) If no written opposition to BXA's renewal request is received
within the specified time, the Assistant Secretary may issue the order
renewing the temporary denial order without a hearing.
(4) A temporary denial order may be renewed more than once.
(e) Appeals. (1) Filing. (i) A respondent may, at any time, file an
appeal of the initial or renewed temporary denial order with the
administrative law judge.
(ii) The filing of an appeal shall stay neither the effectiveness
of the temporary denial order nor any application for renewal, nor will
it operate to bar the Assistant Secretary's consideration of any
renewal application.
(2) Grounds. A respondent may appeal on the grounds that the
finding that the order is necessary in the public interest to prevent
an imminent violation is unsupported.
(3) Appeal procedure. A full written statement in support of the
appeal must be filed with the appeal together with appropriate
evidence, and be simultaneously served on BXA, which shall have seven
days from receipt to file a reply. Service on the administrative law
judge shall be addressed to the Office of the Administrative Law Judge,
U.S. Department of Commerce, Room H-6716, 14th Street and Constitution
Avenue, N.W., Washington, D.C. 20230. Service on BXA shall be as set
forth in Sec. 766.5(b) of this part. The administrative law judge
normally will not hold hearings or entertain oral argument on appeals.
(4) Recommended Decision. Within 10 working days after an appeal is
filed, the administrative law judge shall submit a recommended decision
to the Under Secretary, and serve copies on the parties, recommending
whether the issuance or the renewal of the temporary denial order
should be affirmed, modified or vacated.
(5) Final decision. Within five working days after receipt of the
recommended decision, the Under Secretary shall issue a written order
accepting, rejecting or modifying the recommended decision. Because of
the time constraints, the Under Secretary's review will ordinarily be
limited to the written record for decision, including the transcript of
any hearing. The issuance or renewal of the temporary denial order
shall be affirmed only if there is reason to believe that the temporary
denial order is required in the public interest to prevent an imminent
violation of the EAA, the EAR, or any order, license or other
authorization issued under the EAA. The Under Secretary's written order
is final and is not subject to judicial review, except as provided in
paragraph (g) of this section.
(f) Delivery. A copy of any temporary denial order issued or
renewed and any final decision on appeal shall be published in the
Federal Register and shall be delivered to BXA and to the respondent,
or any agent designated for this purpose, and to any related person in
the same manner as provided in Sec. 766.5 of this part for filing for
papers other than a charging letter.
(g) Judicial review. A respondent temporarily denied export
privileges by order of the Under Secretary may appeal to the United
States Court of Appeals for the District of Columbia pursuant to 50
U.S.C. app. Sec. 2412(d)(3).
Sec. 766.25 Administrative action denying permission to apply for or
use export licenses.
(a) General. The Director of the Office of Exporter Services, in
consultation with the Director of the Office of Export Enforcement, may
deny permission to apply for or use any license, including any License
Exception, to any person who has been convicted of a violation of the
EAA, the EAR, or any order, license or authorization issued thereunder;
any regulation, license or order issued under the International
Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794
or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C.
783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).
(b) Procedure. Upon notification that a person has been convicted
of a violation of one or more of the provisions specified in paragraph
(a) of this section, the Director of the Office of Exporter Services,
in consultation with the Director of the Office of Export Enforcement,
will determine whether to deny permission to apply for or use any
export license, including any License Exception, to any such person.
The Director of the Office of Exporter Services will notify each person
denied under this section by letter stating that permission to apply
for or use export licenses has been denied.
(c) Criteria. In determining whether and for how long to deny U.S.
export privileges to a person previously convicted of one or more of
the statutes set forth in paragraph (a) of this section, the Director
of the Office of Exporter Services may take into consideration any
relevant information, including, but not limited to, the seriousness of
the offense involved in the criminal prosecution, the nature and
duration of the criminal sanctions imposed, and whether the person has
undertaken any corrective measures.
(d) Duration. Any denial of permission to apply for or use export
[[Page 12915]]
licenses, including any License Exception, under this section shall not
exceed 10 years from the date of the conviction of the person who is
subject to the denial.
(e) Effect. Any person denied permission to apply for and use
licenses under this section will be considered a ``person denied export
privileges'' for purposes of Sec. 736.2(b)(4) (General Prohibition 4--
Engage in actions prohibited by a denial order) and Sec. 764.2(k) of
the EAR.
(f) Publication. The name and address(es) of any person denied
permission to apply for or use export licenses under this section will
be published as described in Supplement No. 2 to part 764 of the EAR,
noting that such action was taken pursuant to this section and section
11(h) of the EAA.
(g) Appeal. An appeal of an action under this section will be
pursuant to part 756 of the EAR.
(h) Applicability to related person. The Director of the Office of
Exporter Services, in consultation with the Director of the Office of
Export Enforcement, may take action in accordance with Sec. 766.23 of
this part to make applicable to related persons an order that is being
sought or that has been issued under this section.
PART 768--FOREIGN AVAILABILITY DETERMINATION PROCEDURES AND
CRITERIA
Sec. 768.1 Introduction.
Sec. 768.2 Foreign availability described.
Sec. 768.3 Foreign availability assessment.
Sec. 768.4 Initiation of an assessment.
Sec. 768.5 Contents of foreign availability submissions and
Technical Advisory Committee certifications.
Sec. 768.6 Criteria.
Sec. 768.7 Procedures.
Sec. 768.8 Eligibility of expedited licensing procedures for non-
controlled countries.
Sec. 768.9 Appeals of negative foreign availability determinations.
Sec. 768.10 Removal of controls on less sophisticated items.
Supplement No. 1 to Part 768--Evidence of Foreign Availability
Supplement No. 2 to Part 768--Items Eligible For Expedited Licensing
Procedures
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 768.1 Introduction.
In this part, references to the Export Administration Regulations
(EAR) are references to 15 CFR chapter VII, subchapter C.
(a) Authority. Pursuant to sections 5(f) and 5(h) of the Export
Administration Act (EAA), the Under Secretary of Commerce for Export
Administration directs the Bureau of Export Administration (BXA) in
gathering and analyzing all the evidence necessary for the Secretary to
determine foreign availability.
(b) Scope. This part applies only to the extent that items are
controlled for national security purposes.
(c) Types of programs. There are two general programs of foreign
availability:
(1) Foreign availability to controlled countries. In this category
are denied license assessments (see Secs. 768.4(b) and 768.7 of this
part) and decontrol assessments (see Secs. 768.4(c) and 768.7 of this
part).
(2) Foreign availability to non-controlled countries. In this
category are denied license assessments, decontrol assessments, and
evaluations of eligibility for expedited licensing (see Sec. 768.8 of
this part).
(d) Definitions. The following are definitions of terms used in
this part 768:
Allegation. See foreign availability submission.
Assessment. An evidentiary analysis that BXA conducts concerning
the foreign availability of a given item based on the assessment
criteria, data gathered by BXA, and the data and recommendations
submitted by the Departments of Defense and State and other relevant
departments and agencies, TAC committees, and industry.
Assessment criteria. Statutorily established criteria that must be
assessed for the Secretary to make a determination with respect to
foreign availability. They are, available-in-fact, from a non-U.S.
source, in sufficient quantity so as to render the control ineffective,
and of comparable quality. (See Sec. 768.6 of this part).
Available-in-fact. An item is available-in-fact to a country if it
is produced within the country or if it may be obtained by that country
from a third country. Ordinarily, items will not be considered
available-in-fact to non-controlled countries if the items are
available only under a validated national security license or a
comparable authorization from a country that maintains export controls
on such items cooperatively with the United States.
Claimant. Any party who makes a foreign availability submission,
excluding TACs.
Comparable quality. An item is of comparable quality to an item
controlled under the EAR if it possesses the characteristics specified
in the Commerce Control List (CCL) for that item and is alike in key
characteristics that include, but are not limited to: (1) Function; (2)
technological approach; (3) performance thresholds; (4) maintainability
and service life; and (5) any other attribute relevant to the purpose
for which the control was placed on the item.
Controlled countries. Albania, Armenia, Azerbaijan, Belarus,
Bulgaria, Cambodia, Cuba, Estonia, Georgia, Kazakhstan, Kyrgystan,
Laos, Latvia, Lithuania, Moldova, Mongolia, North Korea, Romania,
Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam and the
People's Republic of China.
Decontrol. Removal of license requirements under the EAR.
Decontrol assessment. An assessment of the foreign availability of
an item to a country or countries for purposes of determining whether
decontrol is warranted. Such assessments may be conducted after BXA
receives a foreign availability submission or a TAC certification, or
by the Secretary's own initiative.
Denied license assessment. A foreign availability assessment
conducted as a result of a claimant's allegation of foreign
availability for an item (or items) that BXA has denied or has issued a
letter of intent to deny a license. If the Secretary determines that
foreign availability exists, BXA's approval of a license will be
limited to the items, countries, and quantities in the allegation.
Determination. The Secretary's decision that foreign availability
within the meaning of the EAA does or does not exist. (See Sec. 768.7
of this part).
Expedited licensing procedure eligibility evaluation. An evaluation
that BXA initiates for the purpose of determining whether an item is
eligible for the expedited licensing procedure. (See Sec. 768.8 of this
part).
Expedited licensing procedures. Under expedited licensing
procedures, BXA reviews and processes a license application for the
export of an eligible item to a non-controlled country within statutory
time limits. Licenses are deemed approved unless BXA denies within the
statutory time limits (See Sec. 768.8 of this part).
Foreign availability submission (FAS). An allegation of foreign
availability a claimant makes, supported by reasonable evidence, and
submits to BXA. (See Sec. 768.5 of this part).
Item. Any commodity, software, or technology.
Items eligible for non-controlled country expedited licensing
procedures. The items described in Supplement No. 2 to this part 768
are eligible for the
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expedited license procedures (See Sec. 768.8 of this part).
National Security Override (NSO). A Presidential decision to
maintain export controls on an item notwithstanding its foreign
availability as determined under the EAA. The President's decision is
based on his/her determination that the absence of the controls would
prove detrimental to the national security of the United States. Once
the President makes such a decision, the President must actively pursue
negotiations to eliminate foreign availability with the governments of
the sources of foreign availability. (See Sec. 768.7 of this part).
Non-controlled countries. Any country not defined as a controlled
country by this section.
Non-U.S. source/foreign source. A person located outside the
jurisdiction of the United States (as defined in part 772 of the EAR).
Reasonable evidence. Relevant information that is credible.
Reliable evidence. Relevant information that is credible and
dependable.
Secretary. As used in this part, the Secretary refers to the
Secretary of Commerce or his/her designee.
Similar quality. An item is of similar quality to an item that is
controlled under the EAR if it is substantially alike in key
characteristics that may include, but are not limited to: (1) Function;
(2) technological approach; (3) performance thresholds; (4)
maintainability and service life; and (5) any other attribute relevant
to the purpose for which the control was placed on the item.
Sufficient quantity. The amount of an item that would render the
U.S. export control, or the denial of the license in question,
ineffective in achieving its purpose. For a controlled country, it is
the quantity that meets the military needs of that country so that U.S.
exports of the item to that country would not make a significant
contribution to its military potential.
Technical Advisory Committee (TAC). A Committee created under
section 5(h) of the EAA that advises and assists the Secretary of
Commerce, the Secretary of Defense, and any other department, agency,
or official of the Government of the United States to which the
President delegates authority under the EAA on export control matters
related to specific areas of controlled items.
TAC certification. A statement that a TAC submits to BXA, supported
by reasonable evidence, documented as in a FAS, that foreign
availability to a controlled country exists for an item that falls
within the TAC's area of technical expertise.
Sec. 768.2 Foreign availability described.
(a) Foreign availability. Foreign availability exists when the
Secretary determines that an item is comparable in quality to an item
subject to U.S. national security export controls, and is available-in-
fact to a country, from a non-U.S. source, in sufficient quantities to
render the U.S. export control of that item or the denial of a license
ineffective. For a controlled country, such control or denial is
``ineffective'' when maintaining such control or denying a specific
license would not restrict the availability of items that would make a
significant contribution to the military potential of the controlled
country or combination of countries detrimental to the national
security of the United States (see sections 5(a) and 3(2)(A) of the
EAA.)
(b) Types of foreign availability. There are two types of foreign
availability:
(1) Foreign availability to a controlled country; and
(2) Foreign availability to a non-controlled country.
(Note to paragraph (b) of this section: See Sec. 768.7 of this part
for delineation of the foreign availability assessment procedures,
and Sec. 768.6 of this part for the criteria used in determining
foreign availability)
Sec. 768.3 Foreign availability assessment.
(a) Foreign availability assessment. A foreign availability
assessment is an evidentiary analysis that BXA conducts to assess the
foreign availability of a given item according to the assessment
criteria, based on data submitted by a claimant, the data gathered by
BXA, and the data and recommendations submitted by the Departments of
Defense and State and other relevant departments and agencies, TAC
committees, and industry. BXA uses the results of the analysis in
formulating its recommendation to the Secretary on whether foreign
availability exists for a given item. If the Secretary determines that
foreign availability exists, the Secretary will decontrol the item for
national security reasons or approve the license in question if there
is no foreign policy reason to deny the license, unless the President
exercises a National Security Override (see Sec. 768.7 of this part).
(b) Types of assessments. There are two types of foreign
availability assessments:
(1) Denied license assessment; and
(2) Decontrol assessment.
(c) Expedited licensing procedures. See Sec. 768.8 of this part for
the evaluation of eligibility of an item for the expedited licensing
procedures.
Sec. 768.4 Initiation of an assessment.
(a) Assessment request. To initiate an assessment, each claimant or
TAC must submit a FAS or a TAC Certification to BXA. TACs are
authorized to certify foreign availability only to controlled
countries. Claimants can allege foreign availability for either
controlled or non-controlled countries.
(b) Denied license assessment. A claimant whose license application
BXA has denied, or for which it has issued a letter of intent to deny
on national security grounds, may request that BXA initiate a denied
license assessment by submitting a Foreign Availability Submission
(FAS) within 90 days after denial of the license. As part of its
submission, the claimant must request that the specified license
application be approved on the grounds of foreign availability. The
evidence must relate to the particular export as described on the
license application and to the alleged comparable item. If foreign
availability is found, the Secretary will approve the license for the
specific items, countries, and quantities listed on the application.
The denied license assessment procedure, however, is not intended to
result in the removal of the U.S. export control on an item by
incrementally providing a country with amounts that, taken together,
would constitute a sufficient quantity of an item. The Secretary will
not approve on foreign availability grounds a denied license if the
approval of such license would itself render the U.S. export control
ineffective in achieving its purpose. In the case of a positive
determination, the Secretary will determine whether a decontrol
assessment is warranted. If so, then BXA will initiate a decontrol
assessment.
(c) Decontrol assessment. (1) Any claimant may at any time request
that BXA initiate a decontrol assessment by a FAS to BXA alleging
foreign availability to any country or countries.
(2) A TAC may request that BXA initiate a decontrol assessment at
any time by submitting a TAC Certification to BXA that there is foreign
availability to a controlled country for items that fall within the
area of the TAC's technical expertise.
(3) The Secretary, on his/her own initiative, may initiate a
decontrol assessment.
(d) BXA mailing address. All foreign availability submissions and
TAC certifications should be submitted to: Department of Commerce,
Bureau of Export Administration, 14th Street and Pennsylvania Avenue,
NW, Room 3877, Washington, DC 20230.
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Sec. 768.5 Contents of foreign availability submissions and Technical
Advisory Committee certifications.
(a) All foreign availability submissions must contain, in addition
to information on product or technology alleged to be available from
foreign sources, at least:
(1) The name of the claimant;
(2) The claimant's mailing and business address;
(3) The claimant's telephone number; and
(4) A contact point and telephone number.
(b) Foreign availability submissions and TAC certifications should
contain as much evidence as is available to support the claim,
including, but not limited to:
(1) Product names and model designations of the items alleged to be
comparable;
(2) Extent to which the alleged comparable item is based on U.S.
technology;
(3) Names and locations of the non-U.S. sources and the basis for
claiming that the item is a non-U.S. source item;
(4) Key performance elements, attributes, and characteristics of
the items on which a qualitative comparison may be made;
(5) Non-U.S. source's production quantities and/or sales of the
alleged comparable items and marketing efforts;
(6) Estimated market demand and the economic impact of the control;
(7) Product names, model designations, and value of U.S. controlled
parts and components incorporated in the items alleged to be
comparable; and
(8) The basis for the claim that the item is available-in-fact to
the country or countries for which foreign availability is alleged.
(c) Supporting evidence of foreign availability may include, but is
not limited to, the following:
(1) Foreign manufacturers' catalogs, brochures, operation or
maintenance manuals;
(2) Articles from reputable trade and technical publications;
(3) Photographs;
(4) Depositions based on eyewitness accounts; and
(5) Other credible evidence.
Note to paragraph (c) of this section: See Supplement No. 1 to
part 768 for additional examples of supporting evidence.
(d) Upon receipt of a FAS or TAC certification, BXA will review it
to determine whether there is sufficient evidence to support the belief
that foreign availability may exist. If BXA determines the FAS or TAC
certification is lacking in supporting evidence, BXA will seek
additional evidence from appropriate sources, including the claimant or
TAC. BXA will initiate the assessment when it determines that it has
sufficient evidence that foreign availability may exist. Claimant and
TAC certified assessments will be deemed to be initiated as of the date
of such determination.
(e) Claimants and TACs are advised to review the foreign
availability assessment criteria described in Sec. 768.6 of this part
and the examples of evidence described in Supplement No. 1 to part 768
when assembling supporting evidence for inclusion in the FAS or TAC
certification.
Sec. 768.6 Criteria.
BXA will evaluate the evidence contained in a FAS or TAC
certification and all other evidence gathered in the assessment process
in accordance with certain criteria that must be met before BXA can
recommend a positive determination to the Secretary. The criteria are
defined in Sec. 768.1(d) of this part. In order to initiate an
assessment, each FAS and TAC certification should address each of these
criteria. The criteria are statutorily prescribed and are:
(a) Available-in-fact;
(b) Non-U.S. source;
(c) Sufficient quantity; and
(d) Comparable quality.
Sec. 768.7 Procedures.
(a) Initiation of an assessment. (1) Once BXA accepts a FAS or TAC
certification of foreign availability, BXA will notify the claimant or
TAC that it is initiating the assessment.
(2) BXA will publish a Federal Register notice of the initiation of
any assessment.
(3) BXA will notify the Departments of Defense and State, the
intelligence community, and any other departments, agencies and their
contractors that may have information concerning the item on which BXA
has initiated an assessment. Each such department, agency, and
contractor shall provide BXA all relevant information concerning the
item. BXA will invite interested departments and agencies to
participate in the assessment process (See paragraph (e) of this
section).
(b) Data gathering. BXA will seek and consider all available
information that bears upon the presence or absence of foreign
availability, including but not limited to that evidence described in
Sec. 768.5 (b) and (c) of this part. As soon as BXA initiates the
assessment, it will seek evidence relevant to the assessment, including
an analysis of the military needs of a selected country or countries,
technical analysis, and intelligence information from the Departments
of Defense and State, and other U.S. agencies. Evidence is particularly
sought from: industry sources worldwide; other U.S. organizations;
foreign governments; commercial, academic and classified data bases;
scientific and engineering research and development organizations; and
international trade fairs.
(c) Analysis. BXA will conduct its analysis by evaluating whether
the reasonable and reliable evidence that is relevant to each of the
foreign availability criteria provides a sufficient basis to recommend
a determination that foreign availability does or does not exist.
(d) Recommendation and determination. (1) Upon completion of each
assessment, BXA, on the basis of its analysis, will recommend that the
Secretary make a determination either that there is or that there is
not foreign availability, whichever the evidence supports. The
assessment upon which BXA bases its recommendation will accompany the
recommendation to the Secretary.
(2) BXA will recommend on the basis of its analysis that the
Secretary determine that foreign availability exists to a country when
the available evidence demonstrates that an item of comparable quality
is available-in-fact to the country, from non-U.S. sources, in
sufficient quantity so that continuation of the existing national
security export control, or denial of the license application in
question on national security grounds, would be ineffective in
achieving its purpose. For a controlled country, such control or denial
is ``ineffective'' when comparable items are available-in-fact from
foreign sources in sufficient quantities so that maintaining such
control or denying a license would not be effective in restricting the
availability of items that would make a significant contribution to the
military potential of any country or combination of countries
detrimental to the national security of the United States.
(3) The Secretary will make the determination of foreign
availability on the basis of the BXA assessment and recommendation; the
Secretary's determination will take into account the evidence provided
to BXA, the recommendations of the Secretaries of Defense and State and
any other interested agencies, and any other information that the
Secretary considers relevant.
[[Page 12918]]
(4) For all decontrol and denied license assessments (under section
5(f)(3) of the EAA) initiated by a FAS, the Secretary will make a
determination within 4 months of the initiation of the assessment and
will notify the claimant. The Secretary will submit positive
determinations for review to the appropriate departments and agencies.
(5) The deadlines for determinations based on self-initiated and
TAC-initiated assessments are different from the deadlines for
claimant-initiated assessments (see paragraphs (f)(2) and (f)(3) of
this section).
(e) Interagency review. BXA will notify all appropriate U.S.
agencies and Departments upon the initiation of an assessment and will
invite their participation in the assessment process. BXA will provide
all interested agencies and departments an opportunity to review source
material, draft analyses and draft assessments immediately upon their
receipt or production. For claimant-initiated assessments, BXA will
provide a copy of all positive recommendations and assessments to
interested agencies and departments for their review following the
Secretary's determination of foreign availability. For self-initiated
and TAC-initiated assessments, BXA will provide all interested agencies
an opportunity to review and comment on the assessment.
(f) Notification. (1) No later than 5 months after the initiation
of an assessment based on a FAS (claimant assessments), the Secretary
will inform the claimant in writing and will submit for publication in
the Federal Register a notice that:
(i) Foreign availability exists, and
(A) The requirement of a license has been removed or the license
application in question has been approved; or
(B) The President has determined that for national security
purposes the export controls must be maintained or the license
application must be denied, notwithstanding foreign availability, and
that appropriate steps to eliminate the foreign availability are being
initiated; or
(C) In the case of an item controlled multilaterally under the
former COCOM regime, the U.S. Government will conduct any necessary
consultations concerning the proposed decontrol or approval of the
license with the former COCOM regime for a period of up to 4 months
from the date of the publication of the determination in the Federal
Register (the U.S. Government may remove the license requirement for
exports to non-controlled countries pending completion of the former
COCOM regime review process); or
(ii) Foreign availability does not exist.
(2) For all TAC certification assessments, the Secretary will make
a foreign availability determination within 90 days following
initiation of the assessment. BXA will prepare and submit a report to
the TAC and to the Congress stating that:
(i) The Secretary has found foreign availability and has removed
the license requirement; or
(ii) The Secretary has found foreign availability, but has
recommended to the President that negotiations be undertaken to
eliminate the foreign availability; or
(iii) The Secretary has not found foreign availability.
(3) There is no statutory deadline for assessments self-initiated
by the Secretary or for the resulting determination. However, BXA will
make every effort to complete such assessments and determinations
promptly.
(g) Foreign availability to controlled countries. When the
Secretary determines that an item controlled for national security
reasons is available to a controlled country and the President does not
issue a National Security Override (NSO), BXA will submit the
determination to the Department of State, along with a draft proposal
for the multilateral decontrol of the item or for the former COCOM
regime approval of the license. The Department of State will submit the
proposal or the license for former COCOM regime review. The former
COCOM regime will have up to 4 months for review of the proposal.
(h) Foreign availability to non-controlled countries. If the
Secretary determines that foreign availability to non-controlled
countries exists, the Secretary will decontrol the item for export to
all non-controlled countries where it is found to be available, or
approve the license in question, unless the President exercises a
National Security Override.
(i) Negotiations to eliminate foreign availability. (1) The
President may determine that an export control must be maintained
notwithstanding the existence of foreign availability. Such a
determination is called a National Security Override (NSO) and is based
on the President's decision that the absence of the control would prove
detrimental to the United States national security. Unless extended (as
described in paragraph (i)(7) of this section), an NSO is effective for
6 months. Where the President invokes an NSO, the U.S. Government will
actively pursue negotiations with the government of any source country
during the 6 month period to eliminate the availability.
(2) There are two types of National Security Overrides:
(i) An NSO of a determination of foreign availability resulting
from an assessment initiated pursuant to section 5(f) of the EAA
(claimant and self-initiated assessments); and
(ii) An NSO of a determination of foreign availability resulting
from an assessment initiated pursuant to section 5(h) of the EAA (TAC-
certification assessments).
(3) For an NSO resulting from an assessment initiated under section
5(f) of the EAA, the Secretary of any agency may recommend that the
President exercise the authority under the EAA to retain the controls
or deny the license notwithstanding the finding of foreign
availability.
(4) For an NSO resulting from an assessment initiated under section
5(h) of the EAA, the Secretary of Commerce may recommend that the
President exercise the authority under the EAA to retain the controls
notwithstanding the finding of foreign availability.
(5) Under an NSO resulting from an assessment initiated under
section 5(f) of the EAA, the Committee on Banking, Housing, and Urban
Affairs of the Senate and the Committee on International Relations of
the House of Representatives will be notified of the initiation of the
required negotiations. The notice will include an explanation of the
national security interest that necessitates the retention of controls.
(6) Under an NSO resulting from an assessment initiated under
section 5(f) of the EAA, BXA will publish notices in the Federal
Register consisting of:
(i) The Secretary's determination of foreign availability;
(ii) The President's decision to exercise the NSO;
(iii) A concise statement of the basis for the President's
decision; and
(iv) An estimate of the economic impact of the decision.
(7) The 6 month effective period for an NSO may be extended up to
an additional 12 months if, prior to the end of the 6 months, the
President certifies to Congress that the negotiations are progressing,
and determines that the absence of the controls would continue to be
detrimental to the United States national security.
(8) After the conclusion of negotiations, BXA will retain the
control only to the extent that foreign availability is eliminated. If
foreign availability is not eliminated, BXA will decontrol the item by
removing the requirement for a license for the export of the item to
the destinations covered by the assessment. To the extent that the
negotiations are successful and the
[[Page 12919]]
foreign availability is eliminated, BXA will remove the license
requirement for the export of the item to any country that has agreed
to eliminate foreign availability.
(j) Changes in foreign availability. If BXA becomes aware of
conditions, including new evidence, that affect a previous
determination that foreign availability exists or does not exist, BXA
may review the conditions. If BXA finds that the foreign availability
previously determined no longer exists, or that foreign availability
not earlier found now does exist, BXA will make a recommendation to the
Secretary of Commerce for the appropriate changes in the control. The
Secretary of Commerce will make a determination, and BXA will publish a
Federal Register notice of the determination.
Sec. 768.8 Eligibility of expedited licensing procedures for non-
controlled countries.
(a) BXA determines the eligibility of an item for expedited
licensing procedures on the basis of an evaluation of the foreign
availability of the item. Eligibility is specific to the items and the
countries to which they are found to be available.
(b) BXA will initiate an eligibility evaluation:
(1) On its own initiative;
(2) On receipt of a FAS; or
(3) On receipt of a TAC certification.
(c) Upon initiation of an eligibility evaluation following receipt
of either a FAS or TAC certification, BXA will notify the claimant or
TAC of the receipt and initiation of an evaluation and publish a
Federal Register notice of the initiation of the evaluation.
(d) The criteria for determining eligibility for expedited
licensing procedures are:
(1) The item must be available-in-fact to the specified
non-controlled country from a foreign source;
(2) The item must be of a quality similar to that of the U.S.-
controlled item; and
(3) The item must be available-in-fact to the specified non-
controlled country without effective restrictions.
(e) Within 30 days of initiation of the evaluation, the Secretary
of Commerce will make a determination of foreign availability on the
basis of the BXA evaluation and recommendation, taking into
consideration the evidence the Secretaries of Defense, State, and other
interested agencies provide to BXA and any other information that the
Secretary considers relevant.
(f) Within 30 days of the receipt of the FAS or TAC certification,
BXA will publish the Secretary's determination in the Federal Register,
that the item will or will not be eligible for expedited licensing
procedures to the stated countries and, where appropriate, amend
Supplement No. 2 to part 768.
(g) Following completion of a self-initiated evaluation, BXA will
be notified of the Secretary's determination and, where appropriate,
Supplement No. 2 to part 768 will be amended.
(h) Foreign availability submissions and TAC certifications to
initiate an expedited licensing procedure evaluation must be clearly
designated on their face as a request for expedited licensing procedure
and must specify the items, quantities and countries alleged eligible.
Submissions and certifications should be sent to: Department of
Commerce, Bureau of Export Administration, 14th Street and Pennsylvania
Avenue, NW., Room 3877, Washington, DC 20230.
Sec. 768.9 Appeals of negative foreign availability determinations.
Appeals of negative determinations will be conducted according to
the standards and procedures described in part 756 of the EAR. A
Presidential decision (NSO) to deny a license or continue controls
notwithstanding a determination of foreign availability is not subject
to appeal.
Sec. 768.10 Removal of controls on less sophisticated items.
Where the Secretary has removed national security controls on an
item for foreign availability reasons, the Secretary will also remove
controls on similar items that are controlled for national security
reasons and whose functions, technological approach, performance
thresholds, and other attributes that form the basis for national
security export controls do not exceed the technical parameters of the
item that BXA has decontrolled for foreign availability reasons.
Supplement No. 1 to Part 768--Evidence of Foreign Availability
This Supplement provides a list of examples of evidence that the
Bureau of Export Administration (BXA) has found to be useful in
conducting assessments of foreign availability. A claimant submitting
evidence supporting a claim of foreign availability should review this
list for suggestions as evidence is collected. Acceptable evidence
indicating possible foreign availability is not limited to these
examples, nor is any one of these examples, usually, in and of itself,
necessarily sufficient to meet a foreign availability criterion. A
combination of several types of evidence for each criterion usually is
required. A Foreign Availability Submission (FAS) should include as
much evidence as possible on all four of the criteria listed below. BXA
combines the submitted evidence with the evidence that it collects from
other sources. BXA evaluates all evidence, taking into account factors
that may include, but are not limited to: Information concerning the
source of the evidence, corroborative or contradictory indications, and
experience concerning the reliability or reasonableness of such
evidence. BXA will assess all relevant evidence to determine whether
each of the four criteria has been met. Where possible, all information
should be in writing. If information is based on third party
documentation, the submitter should provide such documentation to BXA.
If information is based on oral statements a third party made, the
submitter should provide a memorandum of the conversation to BXA if the
submitter cannot obtain a written memorandum from the source. BXA will
amend this informational list as it identifies new examples of
evidence.
(a) Examples of evidence of foreign availability:
The following are intended as examples of evidence that BXA will
consider in evaluating foreign availability. BXA will evaluate all
evidence according to the provisions in Sec. 768.7(c) of this part in
order for it to be used in support of a foreign availability
determination. This list is illustrative only.
(1) Available-in-fact:
(i) Evidence of marketing of an item in a foreign country (e.g., an
advertisement in the media of the foreign country that the item is for
sale there);
(ii) Copies of sales receipts demonstrating sales to foreign
countries;
(iii) The terms of a contract under which the item has been or is
being sold to a foreign country;
(iv) Information, preferably in writing, from an appropriate
foreign government official that the government will not deny the sale
of an item it produces to another country in accordance with its laws
and regulations;
(v) Information, preferably in writing, from a named company
official that the company legally can and would sell an item it
produces to a foreign country;
(vi) Evidence of actual shipments of the item to foreign countries
(e.g., shipping documents, photographs, news reports);
(vii) An eyewitness report of such an item in operation in a
foreign country, providing as much information as available, including
where possible the
[[Page 12920]]
make and model of the item and its observed operating characteristics;
(viii) Evidence of the presence of sales personnel or technical
service personnel in a foreign country;
(ix) Evidence of production within a foreign country;
(x) Evidence of the item being exhibited at a trade fair in a
foreign country, particularly for the purpose of inducing sales of the
item to the foreign country;
(xi) A copy of the export control laws or regulations of the source
country, showing that the item is not controlled; or
(xii) A catalog or brochure indicating the item is for sale in a
specific country.
(2) Foreign (non-U.S.) source:
(i) Names of foreign manufacturers of the item including, if
possible, addresses and telephone numbers;
(ii) A report from a reputable source of information on commercial
relationships that a foreign manufacturer is not linked financially or
administratively with a U.S. company;
(iii) A list of the components in the U.S. item and foreign item
indicating model numbers and their sources;
(iv) A schematic of the foreign item identifying its components and
their sources;
(v) Evidence that the item is a direct product of foreign
technology (e.g., a patent law suit lost by a U.S. producer, a foreign
patent);
(vi) Evidence of indigenous technology, production facilities, and
the capabilities at those facilities; or
(vii) Evidence that the parts and components of the item are of
foreign origin or are exempt from U.S. licensing requirements by the
parts and components provision Sec. 732.4 of the EAR.
(3) Sufficient quantity:
(i) Evidence that foreign sources have the item in serial
production;
(ii) Evidence that the item or its product is used in civilian
applications in foreign countries;
(iii) Evidence that a foreign country is marketing in the specific
country an item of its indigenous manufacture;
(iv) Evidence of foreign inventories of the item;
(v) Evidence of excess capacity in a foreign country's production
facility;
(vi) Evidence that foreign countries have not targeted the item or
are not seeking to purchase it in the West;
(vii) An estimate by a knowledgeable source of the foreign
country's needs; or
(viii) An authoritative analysis of the worldwide market (i.e.,
demand, production rate for the item for various manufacturers, plant
capacities, installed tooling, monthly production rates, orders, sales
and cumulative sales over 5-6 years).
(4) Comparable quality:
(i) A sample of the foreign item;
(ii) Operation or maintenance manuals of the U.S. and foreign
items;
(iii) Records or a statement from a user of the foreign item;
(iv) A comparative evaluation, preferably in writing, of the U.S.
and foreign items by, for example, a western producer or purchaser of
the item, a recognized expert, a reputable trade publication, or
independent laboratory;
(v) A comparative list identifying, by manufacturers and model
numbers, the key performance components and the materials used in the
item that qualitatively affect the performance of the U.S. and foreign
items;
(vi) Evidence of the interchangeability of U.S. and foreign items;
(vii) Patent descriptions for the U.S. and foreign items;
(viii) Evidence that the U.S. and foreign items meet a published
industry, national, or international standard;
(ix) A report or eyewitness account, by deposition or otherwise, of
the foreign item's operation;
(x) Evidence concerning the foreign manufacturers' corporate
reputation;
(xi) Comparison of the U.S. and foreign end item(s) made from a
specific commodity, tool(s), device(s), or technical data; or
(xii) Evidence of the reputation of the foreign item including, if
possible, information on maintenance, repair, performance, and other
pertinent factors.
Supplement No. 2 to Part 768--Items Eligible for Expedited Licensing
Procedures--[Reserved]
PART 770--INTERPRETATIONS
Sec.
770.1 Introduction.
770.2 Commodity interpretations.
770.3 Interpretations related to exports of technology and software
to destinations in Country Group D:1.
770.4 Interpretations related to chemical mixtures--de minimis
exceptions examples.
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 3 CFR, 1994 Comp., p. 917; Notice of August 15, 1995 (60
FR 42767, August 17, 1995).
Sec. 770.1 Introduction.
In this part, references to the EAR are references to 15 CFR
chapter VII, subchapter C. This part provides commodity, technology,
and software interpretations. These interpretations clarify the scope
of controls where such scope is not readily apparent from the Commerce
Control List (CCL) (see Supplement No. 1 to part 774 of the EAR) and
other provisions of the Export Administration Regulations.
Sec. 770.2 Commodity interpretations.
(a) Interpretation 1: Anti-friction bearing or bearing systems and
specially designed parts. (1) Anti-friction bearings or bearing systems
shipped as spares or replacements are classified under Export Control
Classification Numbers (ECCNs) 2A001, 2A002, 2A003, 2A004, 2A005, and
2A006 (ball, roller, or needle-roller bearings and parts). This applies
to separate shipments of anti-friction bearings or bearing systems and
anti-friction bearings or bearing systems shipped with machinery or
equipment for which they are intended to be used as spares or
replacement parts.
(2) An anti-friction bearing or bearing system physically
incorporated in a segment of a machine or in a complete machine prior
to shipment loses its identity as a bearing. In this scenario, the
machine or segment of machinery containing the bearing is the item
subject to export control requirements.
(3) An anti-friction bearing or bearing system not incorporated in
a segment of a machine prior to shipment, but shipped as a component of
a complete unassembled (knocked-down) machine, is considered a
component of a machine. In this scenario, the complete machine is the
item subject to export license requirements.
(b) Interpretation 2: Classification of ``parts'' of machinery,
equipment, or other items. (1) An assembled machine or unit of
equipment is being exported. In instances where one or more assembled
machines or units of equipment are being exported, the individual
component parts that are physically incorporated into the machine or
equipment do not require a license. The license or general exception
under which the complete machine or unit of equipment is exported will
also cover its component parts, provided that the parts are normal and
usual components of the machine or equipment being exported, or that
the physical incorporation is not used as a device to evade the
requirement for a license.
(2) Parts are exported as spares, replacements, for resale, or for
stock. In instances where parts are exported as spares, replacements,
for resale, or for stock, a license is required only if the appropriate
entry for the part specifies that a license is required for the
intended destination.
(c) Interpretation 3: Wire or cable cut to length. (1) Wire or
cable may be included as a component of a system or piece of equipment,
whether or not the
[[Page 12921]]
wire or cable is cut to length and whether or not it is fitted with
connectors at one or both ends, so long as it is in normal quantity
necessary to make the original installation of the equipment and is
necessary to its operation.
(2) Wire or cable exported as replacement or spares, or for further
manufacture is controlled under the applicable wire or cable ECCN only.
This includes wire or cable, whether or not cut to length or fitted
with connectors at one or both ends.
(d) Interpretation 4: Telecommunications equipment and systems.
Control equipment for paging systems (broadcast radio or selectively
signalled receiving systems) is defined as circuit switching equipment
in Category 5 of the CCL.
(e) Interpretation 5: Numerical control systems. (1) Classification
of ``Numerical Control'' Units. ``Numerical control'' units for machine
tools, regardless of their configurations or architectures, are
controlled by their functional characteristics as described in ECCN
2B001.a. ``Numerical control'' units include computers with add-on
``motion control boards''. A computer with add-on ``motion control
boards'' for machine tools may be controlled under ECCN 2B001.a even
when the computer alone without ``motion control boards'' is not
subject to licensing requirements under Category 4 and the ``motion
control boards'' are not controlled under ECCN 2B001.b.
(2) Export documentation requirement. (i) When preparing a license
application for a numerical control system, the machine tool and the
control unit are classified separately. If either the machine tool or
the control unit requires a license, then the entire unit requires a
license. If either a machine tool or a control unit is exported
separately from the system, the exported component is classified on the
license application without regard to the other parts of a possible
system.
(ii) When preparing the Shipper's Export Declaration (SED), a
system being shipped complete (i.e., machine and control unit), should
be reported under the Schedule B number for each machine. When either a
control unit or a machine is shipped separately, it should be reported
under the Schedule B number appropriate for the individual item being
exported.
(f) Interpretation 6: Parts, accessories, and equipment exported as
scrap. Parts, accessories, or equipment that are being shipped as scrap
should be described on the SED in sufficient detail to be identified
under the proper ECCN. When commodities declared as parts, accessories,
or equipment are shipped in bulk, or are otherwise not packaged,
packed, or sorted in accordance with normal trade practices, the
Customs Officer may require evidence that the shipment is not scrap.
Such evidence may include, but is not limited to, bills of sale, orders
and correspondence indicating whether the commodities are scrap or are
being exported for use as parts, accessories, or equipment.
(g) Interpretation 7: Scrap arms, ammunition, and implements of
war. Arms, ammunition, and implements of war, as defined in the U.S.
Munitions List, and are under the jurisdiction of the U.S. Department
of State (22 CFR parts 120 through 130), except for the following,
which are under the jurisdiction of the Department of Commerce:
(1) Cartridge and shell cases that have been rendered useless
beyond the possibility of restoration to their original identity by
means of excessive heating, flame treatment, mangling, crushing,
cutting, or by any other method are ``scrap''.
(2) Cartridge and shell cases that have been sold by the armed
services as ``scrap'', whether or not they have been heated, flame-
treated, mangled, crushed, cut, or reduced to scrap by any other
method.
(3) Other commodities that may have been on the U.S. Munitions List
are ``scrap'', and therefore under the jurisdiction of the Department
of Commerce, if they have been rendered useless beyond the possibility
of restoration to their original identify only by means of mangling,
crushing, or cutting. When in doubt as to whether a commodity covered
by the Munitions List has been rendered useless, exporters should
consult the Office of Defense Trade Controls, U.S. Department of State,
Washington, DC 20520, or the Exporter Counseling Division, Office of
Exporter Services, Room 1099A, U.S. Department of Commerce, Washington,
DC 20230, before reporting a shipment as metal scrap.
(h) Interpretation 8: Military automotive vehicles and parts for
such vehicles. (1) Military automotive vehicles. (i) For purposes of
U.S. export controls, military automotive vehicles ``possessing or
built to current military specifications differing materially from
normal commercial specifications'' may include, but are not limited to,
the following characteristics:
(A) Special fittings for mounting ordnance or military equipment;
(B) Bullet-proof glass;
(C) Armor plate;
(D) Fungus preventive treatment;
(E) Twenty-four volt electrical systems;
(F) Shielded electrical system (electronic emission suppression);
or
(G) Puncture-proof or run-flat tires.
(ii) Automotive vehicles fall into two categories.
(A) Military automotive vehicles on the Munitions List, new and
used. Automotive vehicles in this category are primarily combat
(fighting) vehicles, with or without armor and/or armament, ``designed
for specific fighting function.'' These automotive vehicles are
licensed for export by the U.S. Department of State (22 CFR parts 120
through 130).
(B) Military automotive vehicles not on the U.S. Munitions List,
new and used. Automotive vehicles in this category are primarily
transport vehicles designed for non-combat military purposes
(transporting cargo, personnel and/or equipment, and/or for to wing
other vehicles and equipment over land and roads in close support of
fighting vehicles and troops). These automotive vehicles are licensed
for export by the U.S. Department of Commerce.
(iii) Parts for military automotive vehicles. Functional parts are
defined as those parts making up the power train of the vehicles,
including the electrical system, the cooling system, the fuel system,
and the control system (brake and steering mechanism), the front and
rear axle assemblies including the wheels, the chassis frame, springs
and shock absorbers. Parts specifically designed for military
automotive vehicles on the Munitions List are licensed for export by
the U.S. Department of State (22 CFR parts 120 through 130).
(iv) General instructions. Manufacturers of non-Munitions List
automotive vehicles and/or parts will know whether their products meet
the conditions described in this paragraph (h). Merchant exporters and
other parties who are not sure whether their products (automotive
vehicles and/or parts) meet these conditions should check with their
suppliers for the required information before making a shipment under
general exception or submitting an application to BXA for a license.
(2) [Reserved]
(i) Interpretation 9: Aircraft, parts, accessories and components.
Aircraft, parts, accessories, and components defined in Categories VIII
and IX of the Munitions List are under the export licensing authority
of the U.S. Department of State (22 CFR parts 120 through 130). All
other aircraft, and parts, accessories and components therefor, are
under the export licensing
[[Page 12922]]
authority of the U.S. Department of Commerce. The following aircraft,
parts, accessories and components are under the licensing authority of
the U.S. Department of Commerce:
(1) Any aircraft (except an aircraft that has been demilitarized,
but including aircraft specified in paragraph (i)(2) of this section)
that conforms to a Federal Aviation Agency type certificate in the
normal, utility, acrobatic, transport, or restricted category, provided
such aircraft has not been equipped with or modified to include
military equipment, such as gun mounts, turrets, rocket launchers, or
similar equipment designed for military combat or military training
purposes.
(2) Only the following military aircraft, demilitarized (aircraft
not specifically equipped, reequipped, or modified for military
operations):
(i) Cargo, bearing designations ``C-45 through C-118 inclusive,''
and ``C-121'';
(ii) Trainers, bearing a ``T'' designation and using piston
engines;
(iii) Utility, bearing a ``U'' designation and using piston
engines;
(iv) Liaison, bearing an ``L'' designation; and
(v) Observation, bearing an ``O'' designation and using piston
engines.
(3) All reciprocating engines.
(4) Other aircraft engines not specifically designed or modified
for military aircraft.
(5) Parts, accessories, and components (including propellers),
designed exclusively for aircraft and engines described in paragraphs
(i)(1), (i)(2), (i)(3), and (i)(4) of this section.
(6) General purpose parts, accessories, and components usable
interchangeably on either military or civil aircraft.
(j) Interpretation 10: Civil aircraft inertial navigation
equipment. (1) The Department of Commerce has licensing jurisdiction
over exports and reexports to all destinations of inertial navigation
systems, inertial navigation equipment, and specially designed
components therefor for ``civil aircraft''.
(2) The Department of State, retains jurisdiction over all software
and technology for inertial navigation systems and navigation
equipment, and specially designed components therefor, for shipborne
use, underwater use, ground vehicle use, spaceborne use or use other
than ``civil aircraft''.
(k) Interpretation 11: Precursor chemicals. The following chemicals
are controlled by ECCN 1C350. The appropriate Chemical Abstract Service
Registry (C.A.S.) number and synonyms, (i.e., alternative names) are
included to help you determine whether your chemicals are controlled by
this entry. These chemicals require a license to all countries except
Argentina, Australia, Austria, Belgium, Canada, Denmark, Czech
Republic, Finland, France, Germany, Greece, Hungary, Iceland, Ireland,
Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway,
Portugal, Spain, Sweden, Switzerland, and the United Kingdom.
(1) (C.A.S. #1341-49-7) Ammonium hydrogen bifluoride
Acid ammonium fluoride
Ammonium bifluoride
Ammonium difluoride
Ammonium hydrofluoride
Ammonium hydrogen bifluoride
Ammonium hydrogen difluoride
Ammonium monohydrogen difluoride
(2) (C.A.S. #7784-34-1) Arsenic trichloride
Arsenic (III) chloride
Arsenous chloride
Fuming liquid arsenic
Trichloroarsine
(3) (C.A.S. #76-93-7) Benzilic acid
.alpha.,.alpha.-Diphenyl-.alpha.-hydroxyacetic acid
Diphenylglycolic acid
.alpha.,.alpha.-Diphenylglycolic acid
Diphenylhydroxyacetic acid
.alpha.-Hydroxy-2,2-diphenylacetic acid
2-Hydroxy-2,2-diphenylacetic acid
.alpha.-Hydroxy-.alpha.-phenylbenzeneacetic acid
Hydroxydiphenylacetic acid
(4) (C.A.S. #107-07-3) 2-Chloroethanol
2-Chloro-1-ethanol
Chloroethanol
2-Chloroethyl alcohol
Ethene chlorohydrin
Ethylchlorohydrin
Ethylene chlorhydrin
Ethylene chlorohydrin
Glycol chlorohydrin
Glycol monochlorohydrin
2-Hydroxyethyl chloride
(5) (C.A.S. #78-38-6) Diethyl ethylphosphonate Ethylphosphonic acid
diethyl ester
(6) (C.A.S. #15715-41-0) Diethyl methylphosphonite
Diethoxymethylphosphine
Diethyl methanephosphonite
0,0-Diethyl methylphosphonite
Methyldiethoxyphosphine
Methylphosphonous acid diethyl ester
(7) (C.A.S. #2404-03-7) Diethyl-N, N-dimethylphosphoro-amidate
N,N-Dimethyl-O,O'-diethyl phosphoramidate
Diethyl dimethylphosphoramidate
Dimethylphosphoramidic acid diethyl ester
(8) (C.A.S. #762-04-9) Diethyl phosphite
Diethoxyphosphine oxide
Diethyl acid phosphite
Diethyl hydrogen phosphite
Diethyo phosphonate
Hydrogen diethyl phosphite
(9) (C.A.S. #100-37-8) N, N-Diethylethanolamine
N,N-Diethyl-2-aminoethanol
Diethyl (2-hydroxyethyl) amine
N,N-Diethyl-N-(.beta.-hydroxyethyl) amine
N,N-Diethyl-2-hydroxyethylamine
Diethylaminoethanol
2-(Diethylamino) ethanol
2-(Diethylamino)ethyl alcohol
N,N-Diethylmonoethanolamine
(2-Hydroxyethyl) diethylamine
2-Hydroxytriethylamine
(10) (C.A.S. #5842-07-9) N,N-Diisopropyl-.beta.-aminoethane thiol
2-(Diisopropylamino) ethanethiol
Diisopropylaminoethanethiol
.beta.-Diisopropylaminoethanethiol
2-(bis(1-Methylethyl)amino) ethanethiol
(11) (C.A.S. #4261-68-1) N, N-Diisopropyl-.2-aminoethyl chloride
hydrochloride
(12) (C.A.S. #96-80-0) N,N-Diisopropyl-.beta.-aminoethanol
N,N-Diisopropyl-2-aminoethanol
2-(Diisopropylamino) ethanol
(N,N-Diisopropylamino) ethanol
2-(Diisopropylamino) ethyl alcohol
N,N-Diisopropylethanolamine
(13) (C.A.S. #96-79-7) N,N-Diisopropyl-.beta.-aminoethyl chloride
2-Chloro-N,N-diisopropylethanamine
1-Chloro-N,N-diisopropylaminoethane
2-Chloro-N,N-diisopropylethylamine
N-(2-chloroethyl)-N-(1-methylethyl)-2-propanamine
N-(2-Chloroethyl) diisopropylamine
N,N-Diisopropyl-2-chloroethylamine
1-(Diisopropylamino)-2-cholorethane
2-(Diisopropylamino)ethyl chloride
Diisopropylaminoethyl chloride
.beta.-Diisopropylaminoethyl chloride
(14) (C.A.S. #108-18-9) Diisopropylamine
N,N-Diisopropylamine
N-(1-Methylethyl)-2-propanamine
(15) (C.A.S. #6163-75-3) Dimethyl ethylphosphonate
Dimethyl ethanephosphonate
Ethylphosphonic acid dimethyl ester
(16) (C.A.S. #756-79-6) Dimethyl methylphosphonate
Dimethoxymethyl phosphine oxide
Dimethyl methanephosphonate
Methanephosphonic acid dimethyl ester
Methylphosphonic acid dimethyl ester
(17) (C.A.S. #868-85-9) Dimethyl phosphite
Dimethoxyphosphine oxide
Dimethyl acid phosphite
Dimethyl hydrogen phosphite
[[Page 12923]]
Dimethyl phosphonate
Hydrogen dimethyl phosphite
Methyl phosphate
(18) (C.A.S. #124-40-3) Dimethylamine
N-Methyl methanamine
(19) (C.A.S. #506-59-2) Dimethylamine hydrochloride
Dimethylammonium chloride
N-Methyl methanamine hydrochloride
(20) (C.A.S. #57856-11-8) O-Ethyl-2-diisoprophylaminoethyl
methylphosphonite (QL)
Methylphosphonous acid 2-(bis(1-methylethyl)amino)ethyl ethyl ester
(21) (C.A.S. #1498-40-4) Ethylphosphonous dichloride
Dichloroethylphosphine
Ethyl phosphonous dichloride
Ethyldichlorophosphine
(22) (C.A.S. #430-78-4) Ethylphosphonus difluoride
Ethyldifluorophosphine
(23) (C.A.S. #1066-50-8) Ethylphosphonyl dichloride
Dichloroethylphosphine oxide
Ethanephosphonyl chloride
Ethylphosphinic dichloride
Ethylphosphonic acid dichloride
Ethylphosphonic dichloride
(24) (C.A.S. #753-98-0) Ethylphosphonyl difluoride
Ethyl difluorophosphite
Ethyldifluorophosphine oxide
Ethylphosphonic difluoride
(25) (C.A.S. #7664-39-3) Hydrogen fluoride
Anhydrous hydrofluoric acid
Fluorhydric acid
Fluorine monohydride
Hydrofluoric acid gas
(26) (C.A.S. #3554-74-3) 3-Hydroxyl-1-methylpiperidine
3-Hydroxy-N-methylpiperidine
1-Methyl-3-hydroxypiperidine
N-Methyl-3-hydroxypiperidine
1-Methyl-3-piperidinol
N-Methyl-3-piperidonol
(27) (C.A.S. #76-89-1) Methyl benzilate
Benzilic acid methyl ester
.alpha.-Hydroxy-.alpha.-phenylbenzeneacetic acid methyl ester
Methyl .alpha.-phenylmandelate
Methyl diphenylglycolate
(28) (C.A.S. #676-83-5) Methylphosphonous dichloride
Dichloromethylphosphine
Methyldichlorophosphine
Methylphosphorus dichloride
(29) (C.A.S. #753-59-3) Methylphosphonous diflouride
Difluoromethylphosphine
Methyldifluorophosphine
(30) (C.A.S. #676-97-1) Methylphosphonyl dichloride
Dichloromethylphosphine oxide
Methanephosphonodichloridic acid
Methanephosphonyl chloride
Methylphosphonic acid dichloride
Methylphosphonic dichloride
Methylphosphonodichloridic acid
Methylphosphonyl chloride
(31) (C.A.S. #676-99-3) Methylphosphonyl difluoride
Difluoromethylphosphine oxide
Methyl difluorophosphite
Methylphosphonic difluoride
(32) (C.A.S. #10025-87-3) Phosphorus oxychloride
Phosphonyl trichloride
Phosphoric chloride
Phosphoric trichloride
Phosphoroxychloride
Phosphoroxytrichloride
Phosphorus chloride oxide
Phosphorus monoxide trichloride
Phosphorus oxide trichloride
Phosphorus oxytrichloride
Phosphorus trichloride oxide
Phosphoryl trichloride
Trichlorophosphine oxide
Trichlorophosphorus oxide
(33) (C.A.S. #10026-13-8) Phosphorus pentachloride
Pentachlorophosphorane
Pentachlorophosphorus
Phosphoric chloride
Phosphorus(V) chloride
Phosphorus perchloride
(34) (C.A.S. #1314-80-3) Phosphorus pentasulfide
Diphosphorus pentasulfide
Phosphoric sulfide
Phosphorus persulfide
Phosphorus sulfide
(35) (C.A.S. #7719-12-2) Phosphorus trichloride
Phosphorus chloride
Trichlorophosphine
(36) C.A.S. #75-97-8) Pinacolone
tert-Butyl methyl ketone
2,2-Dimethyl-3-butanone
3,3-Dimethyl-2-butanone
2,2-Dimethylbutanone
3,3-Dimethylbutanone
1,1-Dimethylethyl methyl ketone
Methyl tert-butyl ketone
Pinacolin
Pinacoline
1,1,1-Trimethylacetone
(37) (C.A.S. #464-07-3) Pinacolyl alcohol
tert-Butyl methyl carbinol
2,2-Dimethyl-3-butanol
3,3-Dimethyl-2-butanol
1-Methyl-2,2-dimethylpropanol
(38) (C.A.S. #151-50-8) Potassium cyanide
(39) (C.A.S. #7789-23-3) Potassium fluoride
Potassium monofluoride
(40) (C.A.S. #7789-29-9) Potassium hydrogen fluoride
Hydrogen potassium difluoride
Hydrogen potassium fluoride
Potassium acid fluoride
Potassium bifluoride
Potassium hydrogen difluoride
Potassium monohydrogen difluoride
(41) (C.A.S. #1619-34-7) 3-Quinuclidinol
1-Azabicyclo(2.2.2)octan-3-ol
3-Hydroxyquinuclidine
(42) (C.A.S. #3731-38-2) 3-Quinuclidinone
1-Azabicyclo(2.2.2)octan-3-one
3-Oxyquinuclidine
Quinuclidone
(43) (C.A.S.) #1333-83-1) Sodium bifluoride
Sodium hydrogen difluoride
Sodium hydrogen fluoride
(44) (C.A.S. #143-33-9) Sodium cyanide
(45) (C.A.S. #7681-49-4) Sodium fluoride
Sodium monofluoride
(46) (C.A.S. #1313-82-2) Sodium sulfide
Disodium monosulfide
Disodium sulfide
Sodium monosulfide
Sodium sulphide
(47) (C.A.S. #10025-67-9) Sulfur Monochloride
(48) (C.A.S. #10545-99-0) Sulfur dicholoride
(49) (C.A.S. #111-48-8) Thiodiglycol
Bis(2-hydroxyethyl) sulfide
Bis(2-hydroxyethyl) thioether
Di(2-hydroxyethyl) sulfide
Diethanol sulfide
2,2'-Dithiobis-(ethanol)
3-Thiapentane-1,5-diol
2,2'-Thiobisethanol
2,2'-Thiodiethanol
Thiodiethylene glycol
2,2'-Thiodiglycol
(50) C.A.S. #7719-09-7) Thionyl chloride
Sulfinyl chloride
Sulfinyl dichloride
Sulfur chloride oxide
Sulfur oxychloride
Sulfurous dichloride
Sulfurous oxychloride
Thionyl dichloride
(51) (C.A.S. #102-71-6) Triethanolamine
Alkanolamine 244
Nitrilotriethanol
2,2',2''-Nitrilotriethanol
2,2',2''-Nitrilotris(ethanol)
TEA
TEA (amino alcohol)
Tri (2-hydroxyethyl) amine
Triethanolamin
Tris (.beta.-hydroxyethyl) amine
Tris (2-hydroxyethyl) amine
Trolamine
(52) (C.A.S. #637-39-8) Triethanolamine hydrochloride
(53) (C.A.S. #122-52-1) Triethyl phosphite
Phosphorous acid triethyl ester
Triethoxyphosphine
Tris(ethoxy)phosphine
[[Page 12924]]
(54) (C.A.S. #121-45-9) Trimethyl phosphite
Phosphorus acid trimethyl ester
Trimethoxyphosphine
Sec. 770.3 Interpretations related to exports of technology and
software to destinations in Country Group D:1.
(a) Introduction. This section is intended to provide you
additional guidance on how to determine whether your technology or
software would be eligible for a License Exception, may be exported
under NLR, or require a license, for export to Country Group D:1.
(b) Scope of licenses. The export of technology and software under
a license is authorized only to the extent specifically indicated on
the face of the license. The only technology and software related to
equipment exports that may be exported without a license is technology
described in Secs. 734.7 through 734.11 of the EAR; operating
technology and software described in Sec. 740.8(a) of the EAR; sales
technology described in Sec. 740.8(b) of the EAR; and software updates
described in Sec. 740.8(c) of the EAR.
(c) Commingled technology and software. (1) U.S.-origin technology
does not lose its U.S.-origin when it is redrawn, used, consulted, or
otherwise commingled abroad in any respect with other technology of any
other origin. Therefore, any subsequent or similar technical data
prepared or engineered abroad for the design, construction, operation,
or maintenance of any plant or equipment, or part thereof, which is
based on or utilizes any U.S.-origin technology, is subject to the EAR
is the same manner as the original U.S.-origin technology, including
license requirements, unless the commingled technology is not subject
to the EAR by reason of the de minimis exclusions described at
Sec. 732.4 of the EAR.
(2) U.S.-origin software that is incorporated into or commingled
with foreign-origin software does not lose its U.S.-origin. Such
commingled software is subject to the EAR is the same manner as the
original U.S.-origin software, including license requirements, unless
the commingled software is not subject to the EAR by reason of the de
minimis exclusions described at Sec. 732.4 of the EAR.
(d) Certain License Exception. The following questions and answers
are intended to further clarify the scope of technology and software
eligible for a License Exception.
(1)(i) Question 1. (A) Our engineers, in installing or repairing
equipment, use techniques (experience as well as proprietary knowledge
of the internal componentry or specifications of the equipment) that
exceed what is provided in the standard manuals or instructions
(including training) given to the customer. In some cases, it is also a
condition of the license that such information provided to the customer
be constrained to the minimum necessary for normal installation,
maintenance and operation situations.
(B) Can we send an engineer (with knowledge and experience) to the
customer site to perform the installation or repair, under the
provisions of License Exception for operating technology and software
(OTS) described in Sec. 740.8(a) of the EAR, if it is understood that
he is restricted by our normal business practices to performing the
work without imparting the knowledge or technology to the customer
personnel?
(ii) Answer 1. Export of technology includes release of U.S.-origin
data in a foreign country, and ``release'' includes ``application to
situations abroad of personal knowledge or technical experience
acquired in the United States.'' As the release of technology in the
circumstances described here would exceed that permitted under the
License Exception for operating technology and software described in
Sec. 740.8(a) of the EAR, a license would be required even though the
technician could apply the data without disclosing it to the customer.
(2)(i) Question 2. We plan, according to our normal business
practices, to train customer engineers to maintain equipment that we
have exported under a license, License Exception, or NLR. The training
is contractual in nature, provided for a fee, and is scheduled to take
place in part in the customer's facility and in part in the U.S. Can we
now proceed with this training at both locations under a License
Exception?
(ii) Answer 2. (A) Provided that this is your normal training, and
involves technology contained in your manuals and standard instructions
for the exported equipment, and meets the other requirements of License
Exception for operating technology and software (OTS) described in
Sec. 740.8(a), the training may be provided within the limits of that
License Exception. The location of the training is not significant, as
the export occurs at the time and place of the actual transfer or
imparting of the technology to the customer's engineers.
(B) Any training beyond that covered under the provisions of
License Exception for operating technology and software (OTS) described
in Sec. 740.8(a), but specifically represented in your license
application as required for this customer installation, and in fact
authorized on the face of the license or a separate technology license,
may not be undertaken while the license is suspended or revoked.
Sec. 770.4 Interpretations related to chemical mixtures--de minimis
exceptions examples.
(a)(1) Introduction: The following are examples for applying the de
minimis exceptions for chemical mixtures containing precursor and
intermediate chemicals controlled under ECCN 1C350.
(2) In ECCN 1C350, Note 2, paragraphs (c) and (d) within the
Mixtures Exemptions state that a validated license is required when at
least one of the listed chemicals constitutes more than 10% or 25%,
respectively, of the weight of the mixture on a solvent free basis.
(b)(1) Example One. A mixture contains the following components:
(i) 90% polymer polyol (a liquid raw material used to make
polyurethane polymers); and
(ii) 10% Australia Group (AG)-controlled chemical eligible for 25%
de minimis exemption.
Note to paragraph (b) of this section: The polymer does not
dissolve the AG-controlled chemical.
(2) In this example, the polymer polyol does not dissolve the AG-
controlled chemical (the only other component of the mixture).
Therefore, the polyol is NOT considered a solvent, and the
concentration of the polymer polyol is included in the concentration
calculation. As a result, the AG-controlled chemical's concentration is
10% when calculated on a solvent-free basis (.10/1.00). Accordingly,
this concentration is below the threshold concentration of 25%
applicable to specific AG-controlled chemicals under the chemical
mixtures rule and can be exported under NLR to all destinations except
Iran, Sudan, Syria, and Country Group E:2 in Supplement No. 1 to part
740 of the EAR.
(3) To determine the classification of this mixture, it is
necessary to determine whether the polymer is capable of functioning as
a solvent for the other components of the mixture. If the polymer
polyol is capable of functioning as a solvent for the controlled AG
chemical, then the polymer component is omitted from the concentration
calculation. If the polymer polyol is not capable of functioning as a
solvent for the AG chemical, then the polymer component is included in
the concentration calculation.
[[Page 12925]]
(c)(1) Example Two: An automotive coolant (antifreeze) is a mixture
of the following components:
(i) 75% ethylene glycol;
(ii) 10% additive package; and
(iii) 15% water.
Note to paragraph (c) of this section: The ``additive package''
contains an AG-controlled chemical that is eligible for the 10% de
minimis exemption. This chemical is added as a stabilizer and
represents 9% of the total mixture. The remaining components of the
additive package are various dyes and stabilizers that represent 1%
of the total mixture. Ethylene glycol serves as the basic functional
ingredient that prevents the engine block from freezing, and does
not dissolve the other components of the mixture. The water is added
to keep the mixture in solution.
(2) To determine if this mixture requires a license it is necessary
to calculate the concentration of the AG-controlled chemical on a
solvent-free basis. Since the water dissolves all of the other
components of the mixture, water is considered a ``solvent'' and the
quantity of water present is not included in the calculation of the AG-
chemical concentration. Consequently, the concentration of the AG
chemical is approximately 11% (.09/.85), and the mixture is classified
under ECCN 1C350. Accordingly, since this concentration is above the
threshold concentration of 10% applicable to this category of AG-
controlled chemical under the chemical mixtures rule, a license is
required to all destinations except AG member countries.
(d)(1) Example Three. A pesticide formulation consists of an AG-
controlled chemical that is eligible for the 25% de minimis exemption,
and an active ingredient that is not AG-controlled. The formulation is
diluted with water to allow safe, effective, and economic application.
The resulting mixture is 15% AG chemical, 40% active ingredient and 45%
water. Although the water is added as a diluent, it dissolves the other
components of the mixture.
(2) Since the water dissolves all components in the mixture, it is
considered a solvent even though it was added as a diluent. The percent
concentration of the AG-controlled chemical calculated on a solvent
free basis is .15/.55 = 27%, and the mixture is therefore classified
under ECCN 1C350. Accordingly, since this concentration is above the
threshold concentration of 25% applicable to this category of AG-
controlled chemicals under the chemical mixtures rule, a license is
required to all destinations except AG member countries.
(e)(1) Example Four. A mixture contains the following components:
(i) 10% water;
(ii) 22% Chemical A;
(iii) 21% Chemical B;
(iv) 20% Chemical C;
(v) 19% Chemical D; and
(vi) 8% Chemical E.
Note to paragraph (e) of this section: The water is added to
dissolve the other components of the mixture. Chemicals A, B, C, and
D are AG-controlled chemicals each eligible for 25% de minimis
exemption. Chemical E is an AG-controlled chemical eligible for 10%
de minimis exemption.
(2) In this example, water is considered a solvent since it
dissolves all components in the mixture. Therefore, the quantity of
water present in the mixture is not included in calculating the
concentrations of the controlled chemicals on a solvent-free basis. The
concentrations of the controlled chemicals are as follows: Chemical A
24%; Chemical B 23%; Chemical C 22%; Chemical D 21%; Chemical E 9%. It
is important to note that in this example, even though the cumulative
amount of the mixture (90%) consists of controlled chemicals, each one
of the controlled chemicals is below the de minimis level for its
category. Consequently, this mixture can be exported under NLR to all
destinations except Iran, Sudan, Syria, and Country Group E:2 in
Supplement No. 1 to part 740 of the EAR.
PART 772--DEFINITIONS OF TERMS
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995).
The following are definitions of terms as used in the Export
Administration Regulations (EAR). In this part, references to the EAR
are references to 15 CFR chapter VII, subchapter C. Those terms in
quotation marks refer to terms used on the Commerce Control List (CCL)
(Supplement No. 1 to part 774 of the EAR). Parenthetical references
following the terms in quotation marks (i.e., (Cat 5)) refer to the CCL
category in which that term is found.
``ATM.'' (Cat 5)--See ``Asynchronous Transfer Mode.''
``Accuracy.'' (Cat 2 and 6)--``Accuracy'' is usually measured in
terms of inaccuracy. It is defined as the maximum deviation, positive
or negative, of an indicated value from an accepted standard or true
value.
``Active flight control systems.'' (Cat 7)--Function to prevent
undesirable ``aircraft'' and ``missile'' motions or structural loads by
autonomously processing outputs from multiple sensors and then
providing necessary preventive commands to effect automatic control.
``Active pixel.'' (Cat 6 and 8)--A maximum (single) element of the
solid state array that has a photoelectric transfer function when
exposed to light (electromagnetic) radiation.
``Adaptive control.'' (Cat 2)--A control system that adjusts the
response from conditions detected during the operation (Ref. ISO 2806-
1980).
Advisory Committee on Export Policy (ACEP). The ACEP voting members
include the Assistant Secretary of Commerce for Export Administration,
and Assistant Secretary-level representatives from the Departments of
State, Defense, Energy, and the Arms Control and Disarmament Agency.
The appropriate representatives of the Joint Chiefs of Staff and the
Director of the Nonproliferation Center of the Central Intelligence
Agency are non-voting members. The Assistant Secretary of Commerce for
Export Administration is the Chair. Appropriate acting Assistant
Secretary, Deputy Assistant Secretary or equivalent of any agency or
department may serve in lieu of the Assistant Secretary of the
concerned agency or department. Such representatives, regardless of
rank, will speak and vote on behalf of their agencies or departments.
The ACEP may invite Assistant Secretary-level representatives of other
Government agencies or departments (other than those identified above)
to participate in the activities of the ACEP when matters of interest
to such agencies or departments are under consideration. Decisions are
made by majority vote.
``Aircraft.'' (Cat 7 and 9)--A fixed wing, swivelwing, rotary wing
(helicopter), tilt rotor or tilt-wing airborne vehicle. (See also
``civil aircraft''.)
Airline. Any person engaged primarily in the transport of persons
or property by aircraft for compensation or hire, pursuant to
authorization by the U.S. Government or a foreign government.
``Angular position deviation.'' (Cat 2)--The maximum difference
between angular position and the actual, very accurately measured
angular position after the workpiece mount of the table has been turned
out of its initial position. (Reference: VDI/VDE 2617, Draft: ``Rotary
tables on coordinate measuring machines'').
Applicant. That person who, as the principal party in interest in
the transaction, has the power and responsibility for determining and
controlling the sending of the item out of the country and is thus, in
reality, the exporter. (For additional information see Sec. 748.4 of
the EAR.) (See also ``U.S. exporter''.)
[[Page 12926]]
``Assembly.'' (Cat 3 and 4)--A number of electronic components
(i.e.,''circuit elements'', ``discrete components'', integrated
circuits, etc.) connected together to perform (a) specific function(s),
replaceable as an entity and normally capable of being disassembled.
Notes: 1. ``Circuit element'': a single active or passive
functional part of an electronic circuit, such as one diode,one
transistor, one resistor, one capacitor, etc.
2. ``Discrete component'': a separately packaged ``circuit
element'' with its own external connections.
``Asynchronous transfer mode.'' (ATM) (Cat 5)--A transfer mode in
which the information is organized into cells; it is asynchronous in
the sense that the recurrence of cells depends on the required or
instantaneous bit rate. (CCITT Recommendation L.113)
Australia Group. The members belonging to this group have agreed to
adopt controls on dual-use chemicals, i.e., weapons precursors,
equipment, and biological microorganisms and related equipment in order
to prevent the proliferation of chemical and biological weapons. Member
countries as of November 1, 1995 include: Argentina, Australia,
Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg,
the Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovak
Republic, Spain, Sweden, Switzerland, the United Kingdom, and the
United States. See also Sec. 742.2 of the EAR.
``Automatic target tracking.'' (Cat 6)--A processing technique that
automatically determines and provides as output an extrapolated value
of the most probable position of the target in real time.
``Bandwidth of one voice channel.'' (Cat 5)--In the case of data
communication equipment designed to operate in one voice channel of
3,100 Hz, as defined in CCITT Recommendation G.151.
``Basic gate propagation delay time.'' (Cat 3)--The propagation
delay time value corresponding to the basic gate utilized within a
``family'' of ``monolithic integrated circuits''. This may be
specified, for a given ``family'', either as the propagation delay time
per typical gate or as the typical propagation delay time per gate.
Note: ``Basic gate propagation delay time'' is not to be
confused with input/output delay time of a complex ``monolithic
integrated circuit''.
``Basic Scientific Research.'' (GTN)--Experimental or theoretical
work undertaken principally to acquire new knowledge of the fundamental
principles of phenomena or observable facts, not primarily directed
towards a specific practical aim or objective.
``Beat length.'' (Cat 6)--The distance over which two orthogonally
polarized signals, initially in phase, must pass in order to achieve a
2 Pi radian(s) phase difference.
``Bias.'' (accelerometer) (Cat 7)--An accelerometer output when no
acceleration is applied.
Bill of Lading. The contract of carriage and receipt for items,
issued by the carrier. It includes an air waybill, but does not include
an inland bill of lading or a domestic air waybill covering movement to
port only.
CCL. See Commerce Control List.
CCL Group. The Commerce Control List (CCL) is divided into 10
categories. Each category is subdivided into five groups, designated by
letters A through E: (A) Equipment, assemblies, and components; (B)
Test, production, and inspection equipment; (C) Materials; (D)
Software; and (E) Technology. See Sec. 738.2(b) of the EAR.
``CE.''--See ``Computing Element.''
``CTP.''--See ``Composite theoretical performance.'' This term may
also appear without quotation marks.
``Camming.'' (axial displacement) (Cat 2)--Axial displacement in
one revolution of the main spindle measured in a plane perpendicular to
the spindle faceplate, at a point next to the circumference of the
spindle faceplate (Ref.: ISO 230 Part 1-1986, paragraph 5.63).
Canadian airline. Any citizen of Canada who is authorized by the
Canadian Government to engage in business as an airline. For purposes
of this definition, a Canadian citizen is:
(a) A natural person who is a citizen of Canada; or
(b) A partnership of which each member is such an individual; or
(c) A Canadian firm incorporated or otherwise organized under the
laws of Canada or any Canadian province, having a total foreign stock
interest not greater than 40 percent and having the Chairman or Acting
Chairman and at least two-thirds of the Directors thereof Canadian
citizens.
``Capable of.'' (MTCR context)--See ``usable in''.
Category. The Commerce Control List is divided into 10 categories:
(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; and (9) Propulsion Systems, Space Vehicles, and
Transportation Equipment. See Sec. 738.2(a) of the EAR.
``Chemical laser.'' (Cat 6)--A ``laser'' in which the excited
species is produced by the output energy from a chemical reaction.
``Circulation.'' (controlled, anti-torque direction control
systems) (Cat 7)--Use air blown over aerodynamic surfaces to increase
or control the forces generated by the surfaces.
``Civil aircraft.'' (Cat 7 and 9)--Only those ``aircraft'' listed
by designation in published airworthiness certification lists by the
civil aviation authorities to fly commercial civil internal and
external routes or for legitimate civil, private or business use. (See
also ``aircraft'')
COCOM (Coordinating Committee on Multilateral Export Controls). A
multilateral organization that cooperated in restricting strategic
exports to controlled countries. COCOM was officially disbanded on
March 31, 1994. COCOM members included the NATO countries, except
Iceland, plus Japan and Australia.
Commerce Control List (CCL). A list of items under the export
control jurisdiction of the Bureau of Export Administration, U.S.
Department of Commerce. Note that certain additional items described in
part 732 of the EAR are also subject to the EAR. The CCL is found in
Supplement No. 1 to part 774 of the EAR.
``Commingled.'' (Cat 1)--Filament to filament blending of
thermoplastic fibers and reinforcement fibers in order to produce a
fiber reinforcement/matrix mix in total fiber form.
``Comminution.'' (Cat 1)--A process to reduce a material to
particles by crushing or grinding.
Commodity. Any article, material, or supply except technology and
software.
``Common channel signalling.'' (Cat 5)--A signalling method in
which a single channel between exchanges conveys, by means of labelled
messages, signalling information relating to a multiplicity of circuits
or calls and other information such as that used for network
management.
``Communications channel controller.'' (Cat 5)--The physical
interface that controls the flow of synchronous or asynchronous digital
information. It is an assembly that can be integrated into computer or
telecommunications equipment to provide communications access.
``Composite.'' (Cat 1, 6, 8, and 9)--A ``matrix'' and an additional
phase or additional phases consisting of particles, whiskers, fibers or
any
[[Page 12927]]
combination thereof, present for a specific purpose or purposes.
``Composite theoretical performance.'' (CTP) (Cat 4)--A measure of
computational performance given in millions of theoretical operations
per second (Mtops), calculated using the aggregation of ``computing
elements (CE)''. (See Category 4, Technical Note.) This term may also
appear without quotation marks. The formula to calculate the CTP is
contained in a technical note titled ``Information on How to Calculate
``Composite Theoretical Performance'' at the end of Category 4 of the
CCL.
``Compound rotary table.'' (Cat 2)--A table allowing the workpiece
to rotate and tilt about two non-parallel axis that can be coordinated
simultaneously for ``contouring control''.
``Computer using facility.'' (Cat 4)--The end-user's contiguous and
accessible facilities:
(a) Housing the ``computer operating area'' and those end-user
functions that are being supported by the stated application of the
electronic computer and its related equipment; and
(b) Not extending beyond 1,500 meters in any direction from the
center of the ``computer operating area''.
Note: ``Computer operating area'': the immediate contiguous and
accessible area around the electronic computer, where the normal
operating, support and service functions take place.
``Computing element.'' (CE) (Cat 4)--The smallest computational
unit that produces an arithmetic logic result.
``Contouring control.'' (Cat 2)--Two or more numerically controlled
motions operating in accordance with instructions that specify the next
required position and the required feed rates to that position. These
feed rates are varied in relation to each other so that a desired
contour is generated (Ref. ISO/DIS 2806--1980).
Controlled country. A list of countries designated controlled for
national security purposes found in Country Group D:1 (see Supplement
No. 1 to part 740 of the EAR). This list was established under
authority delegated to the Secretary of Commerce by Executive Order
12214 of May 2, 1980 pursuant to section 5(b) of the EAA, and
including: Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia,
the People's Republic of China, Estonia, Georgia, Kazakstan,
Kyrgyzstan, Laos, Latvia, Lithuania, Moldova, Mongolia, Romania,
Russia, Tajikstan, Turkmenistan, Ukraine, Uzbekistan, and Vietnam. Cuba
and North Korea are controlled countries, but they are listed in
Country Group E:2 (unilateral embargoes) rather than Country Group D:1.
This definition does not apply to part 768 of the EAR (Foreign
Availability), which provides a dedicated definition.
Controlled in fact. For purposes of the Special Comprehensive
License (part 752 of the EAR), controlled in fact is defined as it is
under the Restrictive Trade Practices or Boycotts (Sec. 760.1(c) of the
EAR).
Cooperating country. A country that cooperated with the former
COCOM member countries in restricting strategic exports in accordance
with COCOM standards. The ``Cooperating Countries'' are: Austria,
Finland, Hong Kong, Ireland, Korea (Republic of), New Zealand, Sweden,
and Switzerland.
Countries supporting international terrorism. In accordance with
section 6(j) of the Export Administration Act of 1979, as amended
(EAA), the Secretary of State has determined that the following
countries' governments have repeatedly provided support for acts of
international terrorism: Cuba, Iran, Iraq, Libya, North Korea, Sudan,
and Syria.
Country Chart. A chart, found in Supplement No. 1 to part 738 of
the EAR, that contains certain licensing requirements based on
destination and reason for control. In combination with the CCL, the
Country Chart indicates when a license is required for any item on the
CCL to any country in the world under General Prohibition One (Exports
and Reexports in the Form Received), General Prohibition Two (Parts and
Components Reexports), and General Prohibition Three (Foreign Produced
Direct Product Reexports). See part 736 of the EAR.
Country Groups. For export control purposes, foreign countries are
separated into five country groups designated by the symbols A, B, C,
D, and E. (See Supplement No. 1 to part 740 of the EAR for a list of
countries in each Country Group.)
``Critical temperature.'' (Cat 1, 3, and 6)--The ``critical
temperature'' (sometimes referred to as the transition temperature) of
a specific ``superconductive'' material is the temperature at which the
material loses all resistance to the flow of direct electrical current.
``Cryptanalysis.'' (Cat 5)--The analysis of a cryptographic system
or its inputs and outputs to derive confidential variables or sensitive
data including clear text. (ISO 7498-2-1988(E), paragraph 3.3.18)
``Cryptography.'' (Cat 5)--The discipline that embodies principles,
means and methods for the transformation of data in order to hide its
information content, prevent its undetected modification or prevent its
unauthorized use. ``Cryptography'' is limited to the transformation of
information using one or more ``secret parameters'' (e.g., crypto
variables) and/or associated key management.
Note: ``Secret parameter'': a constant or key kept from the
knowledge of others or shared only within a group.
Customs officer. The Customs officers in the U.S. Customs Service
and postmasters unless the context indicates otherwise.
``Data signalling rate.'' (Cat 5)--The rate, as defined in ITU
Recommendation 53-36, taking into account that, for non-binary
modulation, baud and bit per second are not equal. Bits for coding,
checking and synchronization functions are to be included.
Notes: 1. When determining the ``data signalling rate'',
servicing and administrative channels shall be excluded.
2. It is the maximum one-way rate, i.e., the maximum rate in
either transmission or reception.
(a) Mirrors:
(1) Mirrors having a single continuous optical reflecting
surface that is dynamically deformed by the application of
individual torques or forces to compensate for distortions in the
optical waveform incident upon the mirror; or
(2) Mirrors having multiple optical reflecting elements that can
be individually and dynamically repositioned by the application of
torques or forces to compensate for distortions in the optical
waveform incident upon the mirror.
(b) Deformable mirrors are also known as adaptive optic mirrors.
``Datagram.'' (Cat 4 and 5)--A self-contained, independent entity
of data carrying sufficient information to be routed from the source to
the destination data terminal equipment without reliance on earlier
exchanges between this source and destination data terminal equipment
and the transporting network.
Defense Trade Control (DTC). The office at the Department of State,
formerly known as the Office of Munitions Control, responsible for
reviewing applications to export and reexport items on the U.S.
Munitions List. (See 22 CFR parts 120 through 130.)
Denied Persons List. A list, referenced in Supplement No. 2 to part
764 of the EAR, of specific persons that have been denied export
privileges, in whole or in part. The full text of each order denying
export privileges is published in the Federal Register.
``Designed or modified.'' (MTCR context)--Equipment, parts,
components, or ``software'' that, as a result of ``development'', or
[[Page 12928]]
modification, have specified properties that make them fit for a
particular application. ``Designed or modified'' equipment, parts,
components or ``software'' can be used for other applications. For
example, a titanium coated pump designed for a ``missile'' may be used
with corrosive fluids other than propellants.
``Development.'' (General Technology Note)--``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.
``Diffusion bonding.'' (Cat 1, 2, and 9)--A solid-state molecular
joining of at least two separate metals into a single piece with a
joint strength equivalent to that of the weakest material.
``Digital computer.'' (Cat 4 and 5)--Equipment that can, in the
form of one or more discrete variables:
(a) Accept data;
(b) Store data or instructions in fixed or alterable (writable)
storage devices;
(c) Process data by means of a stored sequence of instructions that
is modifiable; and
(d) Provide output of data.
Note: Modifications of a stored sequence of instructions include
replacement of fixed storage devices, but not a physical change in
wiring or interconnections.
``Digital transfer rate.'' (Cat 5)--The total bit rate of the
information that is directly transferred on any type of medium.
``Direct-acting hydraulic pressing.'' (Cat 2)--A deformation
process that uses a fluid-filled flexible bladder in direct contact
with the workpiece.
``Drift rate.'' (gyro) (Cat 7)--The time rate of output deviation
from the desired output. It consists of random and systematic
components and is expressed as an equivalent input angular displacement
per unit time with respect to inertial space.
Dual use. Items that have both commercial and military or
proliferation applications. While this term is used informally to
describe items that are subject to the EAR, purely commercial items are
also subject to the EAR (see Sec. 734.2(a) of the EAR).
``Dynamic adaptive routing.'' (Cat 5)--Automatic rerouting of
traffic based on sensing and analysis of current actual network
conditions.
Note: This does not include cases of routing decisions taken on
predefined information.
``Dynamic signal analyzers.'' (Cat 3)--``Signal analyzers'' that
use digital sampling and transformation techniques to form a Fourier
spectrum display of the given waveform including amplitude and phase
information.
Effective control. For purposes of the Special Comprehensive
License (SCL), effective control means the exercise of a right, under a
contractual agreement between the SCL Holder and the consignee, to
determine and control the export of items authorized under an SCL.
``Electronically steerable phased array antenna.'' (Cat 6)--An
antenna that forms a beam by means of phase coupling, i.e., the beam
direction is controlled by the complex excitation coefficients of the
radiating elements and the direction of that beam can be varied in
azimuth or in elevation, or both, by application, both in transmission
and reception, of an electrical signal.
``End-effectors.'' (Cat 2)--``End-effectors'' include grippers,
``active tooling units'' and any other tooling that is attached to the
baseplate on the end of a ``robot'' manipulator arm.
Note: ``Active tooling unit'': a device for applying motive
power, process energy or sensing to the workpiece.
``Equivalent Density.'' (Cat 6)--The mass of an optic per unit
optical area projected onto the optical surface.
``Expert systems.'' (Cat 4)--Systems providing results by
application of rules to data that are stored independently of the
``program'' and capable of any of the following:
(a) Modifying automatically the ``source code'' introduced by the
user;
(b) Providing knowledge linked to a class of problems in quasi-
natural language; or
(c) Acquiring the knowledge required for their development
(symbolic training).
Export. Export means an actual shipment or transmission of items
out of the United States. (See Sec. 734.2(b) of the EAR.)
Export Administration Act (EAA). Export Administration Act of 1979,
as amended, effective October 1, 1979.
Export Administration Regulations (EAR). Regulations set forth in
parts 730-774, inclusive, of Title 15 of the Code of Federal
Regulations.
Export Administration Review Board (EARB). EARB voting members are
the Secretary of Commerce, the Secretary of State, the Secretary of
Defense, the Secretary of Energy, and the Director of the Arms Control
and Disarmament Agency. The Chairman of the Joint Chiefs of Staff and
the Director of Central Intelligence are non-voting members. The
Secretary of Commerce is the Chair of the EARB. No alternate EARB
members may be designated, but the acting head or deputy head of any
agency or department may serve in lieu of the head of the concerned
agency or department. The EARB may invite the heads of other Government
agencies or departments (other than those identified in this
definition) to participate in the activities of the EARB when matters
of interest to such agencies or departments are under consideration.
Decisions are made by majority vote.
Export Control Classification Number (ECCN). The numbers used in
Supplement No. 1 to part 774 of the EAR and throughout the EAR. The
Export Control Classification Number consists of a set of digits and a
letter. Reference Sec. 738.2(c) of the EAR for a complete description
of each ECCN's composition.
Export control document. A license; application for license; any
and all documents submitted in accordance with the requirements of the
EAR in support of, or in relation to, a license application;
application for International Import Certificate; International Import
Certificate; Delivery Verification Certificate or similar evidence of
delivery; Shipper's Export Declaration (SED) presented in connection
with shipments to any country; a Dock Receipt or bill of lading issued
by any carrier in connection with any export subject to the EAR and any
and all documents prepared and submitted by exporters and agents
pursuant to the export clearance requirements of part 758 of the EAR; a
U.S. exporter's report of request received for information,
certification, or other action indicating a restrictive trade practice
or boycott imposed by a foreign country against a country friendly to
the United States, submitted to the U.S. Department of Commerce in
accordance with the provisions of part 760 of the EAR; Customs Form
7512, Transportation Entry and Manifest of Goods, Subject to Customs
Inspection and Permit, when used for Transportation and Exportation
(T.& E.) or Immediate Exportation (I.E.); and any other document issued
by a U.S. Government agency as evidence of the existence of a license
for the purpose of loading onto an exporting carrier or otherwise
facilitating or effecting an export from the United States or any
reexport of any item requiring a license.
Export of satellites. The term export, as applied to satellites
controlled by the Department of Commerce, includes the physical
movement of a satellite from the United States to another country for
[[Page 12929]]
any purpose, or the transfer of registration of a satellite or
operational control over a satellite from a person resident in the
United States to a person resident in another country. Under the
Commercial Space Launch Act, a launch of a launch vehicle and payload
is not an export for purposes of controlling export.
Exporter. See U.S. exporter.
Exporting carrier. Any instrumentality of water, land, or air
transportation by which an export is effected, including any domestic
air carrier on which any cargo for export is laden or carried.
``FMU.''--See ``flexible manufacturing unit''
``Family.'' (Cat 3)--Consists of microprocessor or microcomputer
microcircuits that have:
(a) The same architecture;
(b) The same basic instruction set; and
(c) The same basic technology (e.g., only NMOS or only CMOS).
``Fast select.'' (Cat 4 and 5)--A facility applicable to virtual
calls that allows data terminal equipment to expand the possibility to
transmit data in call set-up and clearing ``packets'' beyond the basic
capabilities of a virtual call.
Note: ``Packet'': a group of binary digits including data and
call control signals that is switched as a composite whole. The
data, call control signals, and possible error control information
are arranged in a specified format.
``Fault tolerance.'' (Cat 4)--The capability of a computer system,
after any malfunction of any of its hardware or ``software''
components, to continue to operate without human intervention, at a
given level of service that provides: continuity of operation, data
integrity, and recovery of service within a given time.
``Fibrous or filamentary materials.'' (Cat 1 and 8)--The term
``fibrous and filamentary materials'' includes:
(a) Continuous monofilaments;
(b) Continuous yarns and rovings;
(c) Tapes, fabrics, random mats and braids;
(d) Chopped fibers, staple fibers and coherent fiber blankets;
(e) Whiskers, either monocrystalline or polycrystalline, of any
length;
(f) Aromatic polyimide pulp.
``Film type integrated circuit.'' (Cat 3)--An array of ``circuit
elements'' and metallic interconnections formed by deposition of a
thick or thin film on an insulating ``substrate''.
Note: ``Circuit element'': a single active or passive functional
part of an electronic circuit, such as one diode, one transistor,
one resistor, one capacitor, etc.
Firm. A corporation, partnership, limited partnership, association,
company, trust, or any other kind of organization or body corporate,
situated, residing, or doing business in the United States or any
foreign country, including any government or agency thereof.
``Fixed.'' (Cat 5)--The coding or compression algorithm cannot
accept externally supplied parameters (e.g., cryptographic or key
variables) and cannot be modified by the user.
``Flexible manufacturing unit.'' (FMU), (sometimes also referred to
as `flexible manufacturing system' (FMS) or `flexible manufacturing
cell' (FMC)) (Cat 2)--An entity that includes a combination of at
least:
(a) A ``digital computer'' including its own ``main storage'' and
its own ``related equipment''; and
(b) Two or more of the following:
(1) A machine tool described in 2B001.c;
(2) A dimensional inspection machine described in Category 2, or
another digitally controlled measuring machine controlled by an entry
in Category 2;
(3) A ``robot'' controlled by an entry in Category 2 or 8;
(4) Digitally controlled equipment controlled by 1B003, 2B003, or
9B001;
(5) ``Stored program controlled'' equipment controlled by 3B001;
(6) Digitally controlled equipment controlled by 1B001;
(7) Digitally controlled electronic equipment controlled by 3A002.
``Fluoride fibers.'' (Cat 6)--Fibers manufactured from bulk
fluoride compounds.
``Focal plane array.'' (Cat 6)--A linear or two-dimensional planar
layer, or combination of planar layers, of individual detector
elements, with or without readout electronics, that work in the focal
plane.
N.B. This definition does not include a stack of single detector
elements or any two, three, or four element detectors provided time
delay and integration is not performed within the element.
Foreign government agency. For the purposes of exemption from
support documentation (see Sec. 748.9 of the EAR), a foreign government
agency is defined as follows:
(a) National governmental departments operated by government-paid
personnel performing governmental administrative functions; e.g.
Finance Ministry, Ministry of Defense, Ministry of Health, etc.
(municipal or other local government entities must submit required
support documentation); or
(b) National government-owned public service entities; e.g.,
nationally owned railway, postal, telephone, telegraph, broadcasting,
and power systems, etc. The term ``foreign government agency'' does not
include government corporations, quasi-government agencies, and state
enterprises engaged in commercial, industrial, and manufacturing
activities, such as petroleum refineries, mines, steel mills, retail
stores, automobile manufacturing plants, airlines, or steamship lines
that operate between two or more countries, etc.
Foreign policy control. A control imposed under the EAR for any and
all of the following reasons: chemical and biological weapons, nuclear
nonproliferation, missile technology, regional stability, crime
control, anti-terrorism, United Nations sanctions, and any other reason
for control implemented under section 6 of the EAA or other similar
authority.
Forwarding agent. The person authorized by an exporter to perform
for that exporter services to facilitate the export of items. The
forwarding agent need not be a person regularly engaged in the freight
forwarding business. The forwarding agent must be designated by the
exporter in writing in the power-of-attorney set forth on the Shippers'
Export Declaration or in a general power-of-attorney, or other written
form, subscribed and sworn to by a duly authorized officer or employee
of the exporter.
``Frequency agility.'' (frequency hopping) (Cat 5)--A form of
``spread spectrum'' in which the transmission frequency of a single
communication channel is made to change by discrete steps.
``Frequency agility.'' (radar) (Cat 6)--(see ``Radar frequency
agility'')
``Frequency switching time.'' (Cat 3 and 5)--The maximum time
(i.e., delay), taken by a signal, when switched from one selected
output frequency to another selected output frequency, to reach:
(a) A frequency within 100 Hz of the final frequency; or
(b) An output level within 1 dB of the final output level.
``Frequency synthesizer.'' (Cat 3)--Any kind of frequency source or
signal generator, regardless of the actual technique used, providing a
multiplicity of simultaneous or alternative output frequencies, from
one or more outputs, controlled by, derived from or disciplined by a
lesser number of standard (or master) frequencies.
``Gas Atomization.'' (Cat 1)--A process to reduce a molten stream
of metal alloy to droplets of 500-micrometer diameter or less by a
high-pressure gas stream.
[[Page 12930]]
``Gateway.'' (Cat 5)--The function, realized by any combination of
equipment and ``software'', to carry out the conversion of conventions
for representing, processing or communicating information used on one
system into the corresponding, but different conventions used in
another system.
General prohibitions. The 10 prohibitions found in part 734 of the
EAR that prohibit certain exports, reexports, and other conduct,
subject to the EAR, absent a license, License Exception, or
determination that no license is required (``NLR'').
``Generic software.'' (Cat 5)--A set of instructions for a ``stored
program controlled'' switching system that is the same for all switches
using that type of switching system.
Note: The data base portion is not considered to be a part of
the generic ``software''.
``Geographically dispersed.'' (Cat 6)--Sensors are considered
geographically dispersed when each location is distant from any other
more than 1,500 m in any direction. Mobile sensors are always
considered geographically dispersed.
``Global interrupt latency time.'' (Cat 4)--The time taken by the
computer system to recognize an interrupt due to the event, service the
interrupt and perform a context switch to an alternate memory-resident
task waiting on the interrupt.
Hold Without Action (HWA). License applications may be held without
action only in the limited circumstances described in Sec. 750.4(c) of
the EAR.
``Hot isostatic densification.'' (Cat 2)--A process of pressurizing
a casting at temperatures exceeding 375 K (102 deg.C) in a closed
cavity through various media (gas, liquid, solid particles, etc.) to
create equal force in all directions to reduce or eliminate internal
voids in the casting.
``Hybrid computer.'' (Cat 4)--Equipment that can:
(a) Accept data;
(b) Process data, in both analog and digital representation; and
(c) Provide output of data.
``Hybrid integrated circuit.'' (Cat 3)--Any combination of
integrated circuit(s), or integrated circuit with ``circuit elements''
or ``discrete components'' connected together to perform (a) specific
function(s), and having all of the following criteria:
(a) Containing at least one unencapsulated device;
(b) Connected together using typical IC-production methods;
(c) Replaceable as an entity; and
(d) Not normally capable of being disassembled.
Notes: 1. ``Circuit element'': a single active or passive
functional part of an electronic circuit, such as one diode, one
transistor, one resistor, one capacitor, etc.
2. ``Discrete component'': a separately packaged ``circuit
element'' with its own external connections.
``ISDN.''--See ``Integrated Services Digital Network''.
``Image enhancement.'' (Cat 4)--The processing of externally
derived information-bearing images by algorithms such as time
compression, filtering, extraction, selection, correlation, convolution
or transformations between domains (e.g., fast Fourier transform or
Walsh transform). This does not include algorithms using only linear or
rotational transformation of a single image, such as translation,
feature extraction, registration or false coloration.
``Information security.'' (Cat 5)--All the means and functions
ensuring the accessibility, confidentiality or integrity of information
or communications, excluding the means and functions intended to
safeguard against malfunctions. This includes ``cryptography'',
``cryptanalysis'', protection against compromising emanations and
computer security.
N.B. ``Cryptanalysis'': the analysis of a cryptographic system
or its inputs and outputs to derive confidential variables or
sensitive data, including clear text. (ISO 7498-2-1988 (E),
paragraph 3.3.18)
``Instantaneous bandwidth.'' (Cat 3)--The bandwidth over which
output power remains constant within 3 dB without adjustment of other
operating parameters.
``Instrumented range.'' (Cat 6)--The specified unambiguous display
range of a radar.
``Integrated Services Digital Network.'' (ISDN) (Cat 5)--A unified
end-to-end digital network, in which data originating from all types of
communication (e.g., voice, text, data, still and moving pictures) are
transmitted from one port (terminal) in the exchange (switch) over one
access line to and from the subscriber.
Intent to Deny (ITD) letter. A letter informing the applicant:
(a) Of the reason for BXA's decision to deny a license application;
and
(b) That the application will be denied 45 days from the date of
the ITD letter, unless the applicant provides, and BXA accepts, a
reason why the application should not be denied for the stated reason.
See Sec. 750.6 of the EAR.
``Interconnected radar sensors.'' (Cat 6)--Two or more radar
sensors are interconnected when they mutually exchange data in real
time.
Intermediate consignee. The intermediate consignee is the bank,
forwarding agent, or other intermediary (if any) who acts in a foreign
country as an agent for the exporter, the purchaser, or the ultimate
consignee, for the purpose of effecting delivery of the items to the
ultimate consignee.
``Intrinsic Magnetic Gradiometer.'' (Cat 6)--A single magnetic
field gradient sensing element and associated electronics the output of
which is a measure of magnetic field gradient. (See also ``Magnetic
Gradiometer'')
``Isostatic presses.'' (Cat 2)--Equipment capable of pressurizing a
closed cavity through various media (gas, liquid, solid particles,
etc.) to create equal pressure in all directions within the cavity upon
a workpiece or material.
Item. ``Item'' means ``commodities, software, and technology.''
When the EAR intend to refer specifically to commodities, software, or
technology, the text will use the specific reference.
Know. See ``knowledge.''
Knowledge. Knowledge of a circumstance (the term may be a variant,
such as ``know,'' ``reason to know,'' or ``reason to believe'')
includes not only positive knowledge that the circumstance exists or is
substantially certain to occur, but also an awareness of a high
probability of its existence or future occurrence. Such awareness is
inferred from evidence of the conscious disregard of facts known to a
person and is also inferred from a person's willful avoidance of facts.
This definition does not apply to part 760 of the EAR (Restrictive
Trade Practices or Boycotts).
``Laser.'' (Cat 2, 3, 5, 6, and 9)--An assembly of components that
produce both spatially and temporally coherent light that is amplified
by stimulated emission of radiation. See also: ``Chemical laser''; ``Q-
switched laser''; ``Super High Power Laser''; and ``Transfer laser''.
Law or regulation relating to export control. Any statute,
proclamation, executive order, regulation, rule, license, or order
applicable to any conduct involving an export transaction shall be
deemed to be a ``law or regulation relating to export control.''
Legible or legibility. Legible and legibility mean the quality of a
letter or numeral that enables the observer to identify it positively
and quickly to the exclusion of all other letters or numerals.
License. Authority issued by the Bureau of Export Administration
authorizing an export, reexport, or other regulated activity. The term
``license'' does not include authority represented by a ``License
Exception.''
[[Page 12931]]
License application; application for license. License application
and similar wording mean an application to BXA requesting the issuance
of a license to the applicant.
License Exception. An authorization described in part 740 of the
EAR that allows you to export or reexport, under stated conditions,
items subject to the EAR that otherwise would require a license. Unless
otherwise indicated, these License Exceptions are not applicable to
exports under the licensing jurisdiction of agencies other than the
Department of Commerce.
Licensee. The person to whom a license has been issued by BXA. See
Sec. 750.7(c) of the EAR for a complete definition and identification
of a licensee's responsibilities.
``Linearity.'' (Cat 2)--``Linearity'' (usually measured in terms of
non-linearity) is the maximum deviation of the actual characteristic
(average of upscale and downscale readings), positive or negative, from
a straight line so positioned as to equalize and minimize the maximum
deviations.
``Local area network.'' (Cat 4)--A data communication system that:
(a) Allows an arbitrary number of independent ``data devices'' to
communicate directly with each other; and
(b) Is confined to a geographical area of moderate size (e.g.,
office building, plant, campus, warehouse).
Note: ``Data device'': equipment capable of transmitting or
receiving sequences of digital information.
``MBTR''.--See ``maximum bit transfer rate''.
MTCR. See Missile Technology Control Regime.
MTEC. See Missile Technology Export Control Group.
``Magnetic Gradiometers.'' (Cat 6)--Are designed to detect the
spatial variation of magnetic fields from sources external to the
instrument. They consist of multiple ``magnetometers'' and associated
electronics the output of which is a measure of magnetic field
gradient. (See also ``Intrinsic Magnetic Gradiometer''.)
``Magnetometers.'' (Cat 6)--Are designed to detect magnetic fields
from sources external to the instrument. They consist of a single
magnetic field sensing element and associated electronics the output of
which is a measure of the magnetic field.
``Main storage.'' (Cat 4)--The primary storage for data or
instructions for rapid access by a central processing unit. It consists
of the internal storage of a ``digital computer'' and any hierarchical
extension thereto, such as cache storage or non-sequentially accessed
extended storage.
``Matrix.'' (Cat 1, 2, 8, and 9)--A substantially continuous phase
that fills the space between particles, whiskers or fibers.
``Maximum bit transfer rate.'' (MBTR) (Cat 4)--Of solid state
storage equipment: the number of data bits per second transferred
between the equipment and its controller. Of a disk drive: the internal
data transfer rate calculated as follows:
``MBTR'' (bits per second)=B x R x T, where:
B=Maximum number of data bits per track available to read or write
in a single revolution;
R=Revolutions per second;
T=Number of tracks that can be used or written simultaneously.
``Measurement uncertainty.'' (Cat 2)--The characteristic parameter
that specifies in what range around the output value the correct value
of the measurable variable lies with a confidence level of 95%. It
includes the uncorrected systematic deviations, the uncorrected
backlash, and the random deviations (Ref.: VDI/VDE 2617).
``Mechanical alloying.'' (Cat 1)--An all